Orissa High Court
Divisional Manager vs Mamata Dash And Others on 19 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.219 of 2021
Divisional Manager, United India
Insurance Company Ltd. .... Appellant
Mr. Somnath Roy, Advocate
-versus-
Mamata Dash and Others .... Respondents
Mr. B.P. Mohanty, Advocate for Respondents 1-4
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
19.7.2022
Order No.
06. 1. The matter is taken up through hybrid mode.
2. Heard Mr. S. Roy, learned counsel for the insurer - Appellant
and Mr. B.P. Mohanty, learned counsel appearing for claimant -
Respondents.
3. It is submitted by the parties that in the meantime Respondent
No.4, namely Smt. Harapriya Dibya who is the mother of the
deceased, died on 31st January, 2018. But inadvertently the same
could not be brought to the notice of the learned tribunal. As such it is
prayed that her name may be deleted as no substitution is required to
be taken since all other LRs of the deceased (who died in the motor
vehicular accident) are already on record, viz., Respondent Nos.1, 2
and 3.
4. In view of such submissions the name of Respondent No.4,
Smt. Harapriya Dibya is delted and the appeal is confined to
Respondent Nos.1, 2, 3 and 5 only.
5. Present appeal by the insurer is directed against the impugned
judgment dated 9th January, 2020 of learned 7th MACT, Bhubaneswar
passed in MAC No.118 of 2016 wherein compensation to the tune of
Rs.15,32,500/- along with interest @ 7% per annum from the date of
filing of the claim application has been granted on account of death of
the deceased in the motor vehicular accident dated 3rd December,
2015.
6. Mr. Roy, learned counsel strenuously contends that though the
accident happened on 3rd December, 2015 but the complaint case was
filed after one year and in terms of the direction passed by the
Magistrate in the complaint case, Kumbharpada P.S. Case No.406
dated 28th December, 2016 was registered. He further submits that
neither the final investigation report has been proved from the side of
the claimant nor any document regarding seizure of the offending
vehicle was produced before the tribunal. Therefore, the involvement
of the offending vehicle is found doubtful and as such, the liability of
the insurer does not arise.
7. On the other hand it is submitted by Mr. Mohanty, learned
counsel for the claimant - Respondents that, the owner having
admitted the factum of accident and death of the deceased due to the
accident involving the offending vehicle, no point is made there in the
submission of learned counsel for the appellant - insurer.
8. Perusal of the impugned judgment reveals the case of the
claimants, who are the wife, two minor children and the mother (the
deleted respondent) of the deceased, that, on 3rd December, 2015
when he was standing along his motorcycle, the offending motor
cycle bearing registration number OR-13-E-8745 by coming in rash
and negligent manner in high speed dashed against him causing
injuries and resultant death of the deceased. At the time of accident
the daughter of the deceased, namely Krishnapriya Upadhyaya
(P.W.2) was present there and she is the eye witness to the
occurrence. The deceased was an Advocate by profession and aged
about 45 years on the date of accident. The deceased died after five
days of accident while being treated at Ayush Hospital, Bhubaneswar.
9. Admittedly, Sahidnagar UD PS Case No.75 dated 8th
December, 2015 was registered for the death of the deceased and it
has been categorically mentioned in column III of the UD report that
the cause of injuries resulting the death is due to road traffic accident.
The post mortem examination report under Ext.7 and the inquest
report under Ext.5 including the UD report under Ext.3 are undisputed
documents and the insurer has not raised any objection to such
document. In addition to those documents, the copy of the F.I.R. and
oral evidence of the daughter (P.W.2) has been adduced. A
cumulative reading of all such evidences including the oral statement
of P.W.2 fortifies the contention of the claimants regarding sustenance
of injuries and death of the deceased in the accident involving the
offending motor cycle as well as the negligence on the part of the
driver of the said motor cycle towards the cause of accident.
Therefore, the entire contention raised on behalf of the appellant to
disbelieve the case of the claimants is rejected. In addition to the
aforesaid materials produced in support of the contention of the
claimants, the owner of the offending motor cycle has also admitted
the accident and negligence on the part of the driver of the offending
motor cycle for the cause of accident.
10. Thus in view of the discussions made above, the contention of
Mr. Roy, learned counsel for the insurer to disbelieve the fact of
accident and negligence on the part of the driver of the offending
motor cycle, is rejected.
11. Mr. Roy, learned counsel next questions the quantum of
compensation on the ground that the income of the deceased has been
assessed at higher side. But he is unable to point out any such material
against the finding of the learned tribunal in assessing the income of
the deceased at Rs.10,000/- per month as an Advocate of Puri Bar.
Upon perusal of the discussions made at paragraph 10 of the
impugned judgment, I do not find any severe illegality in such
assessment of the tribunal in computing the final compensation
amount. However, it is noticed that the minor daughters of the
deceased have not been granted any parental consortium by the
tribunal in terms of the decision rendered by Hon'ble Apex Court in
the case of Magma General Insurance Company Ltd. v. Nanu Ram
@ Chuhru Ram and Others, (2018) 18 SCC 130. But in absence of
any challenge from the side of the claimants, this court refrains from
interfering into the same.
12. In the result, the appeal is dismissed by confirming the award of
the learned Tribunal and the appellant is directed to deposit the same
including interest before the tribunal within a period of two months
from today; where-after the same shall be disbursed in favour of the
claimant Respondent Nos.1, 2 and 3, namely, Smt. Mamata Dash,
Krushnapriya Upadhyaya and Kaberi Upadhyaya on such terms and
proportion to be fixed by the learned Tribunal.
13. The statutory deposit made by the appellant before this court
along with accrued interest be refunded to the Appellant - insurer on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
14. The appeal is disposed of.
15. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
