Orissa High Court
Saraswati Seth And Others vs Secretary on 4 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA Nos.947 & 667 of 2009
(From the judgment dated 8th December,2008 passed by Shri J.J.Patro,
learned Sessions Judge-cum-M.A.C.T., Phulbani in M.A.C. No.115 of
2003)
----------
MACA No.947 of 2009
Saraswati Seth and others ...... Appellants
Versus
Secretary, Maakatadaganda F.M.S.
and another ...... Respondents
Advocate(s) appeared in this case :-
For Appellants : Mr. P.C.Pattnaik, Advocate
For Respondents : Mr. B.Das Mohapatra,
Advocate for Respondent No.2
AND
MACA No.667 of 2009
D.M., New India Assurance Co. Ltd....... Appellant
Versus
Saraswati Seth and others ...... Respondents
Advocate(s) appeared in this case :-
For Appellants : Mr. B.Das Mohapatra, Advocate
For Respondents : Mr. P.C.Pattnaik, Advocate
Advocate for Respondent Nos.1 to
4
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
4th May, 2022
B.P. Routray,J.
1. Both the appeals are directed against the judgment of the learned
M.A.C.T., Phulbani dated 8th December, 2008 passed in M.A.C. No.115
of 2003, wherein compensation to the tune of Rs.59,500/- along with
interest @6% per annum has been granted in favour of the claimants.
2. The claimants are the wife and three sons of the deceased. Their
case is that the deceased was serving as a Peon in Pairaju Gram
Panchayat and on the date of accident he was travelling with 27 bags of
Government paddy in the offending vehicle i.e., the Tractor and Trolley
bearing Registration No.OR-12-1833 and OR-12-1834. The deceased fell
down from the vehicle due to rash and negligent driving of the driver and
died at the spot.
Initially, F.I.R. was lodged in Gochhapada P.S.Case No.42 dated
31st December, 1996 alleging the murder of the deceased, which was
subsequently negatived by the concerned Criminal Court with the finding
that the deceased died due to motor vehicular accident.
3. The Tribunal upon adjudication of the claim directed the Insurer
i.e., New India Assurance Co. Ltd. to indemnify the compensation
amount for the owner.
4. MACA No.667 of 2009 has been filed by the Insurer challenging
the award mainly on the ground that the deceased was a gratuitous
passenger in the offending vehicle and thus, the Insurer is not liable to
pay compensation. Their case is that the offending Tractor was licensed
for agricultural purpose only and it had no permit to attach a trolley to
convert the tractor as goods carriage vehicle. As such, the Insurer has no
liability in this case.
5. MACA No.947 of 2009 has been filed by the claimants for
enhancement of the compensation amount on the ground that the
Tribunal has failed to appreciate the income of the deceased as a Peon of
Gram Panchayat as well as a cultivator. As per the claimants, the
monthly income of the deceased should at least be taken at Rs.3,000/-
per month in terms of the principles decided in the case of Laxmi Devi
and Others vs- Mohammad Tabbar and Another, (2008) 12 SCC 165
and, accordingly the amount of compensation be enhanced suitably.
6. Perusal of the impugned judgment reveals that age of the deceased
has been accepted at 60 years based on the postmortem report and the
comparative age of the wife and sons of the deceased. Multiplier 5 has
been applied for the purpose. The aforesaid facts about the age and
consequential multiplier are disputed by the claimants and as per them,
the age of the deceased should be accepted as 55 years to apply the
multiplier of 11 instead of 5.
7. The owner of the vehicle did not come to contest the case either
before the Tribunal or before this Court.
8. Coming to examine the contention of the claimants on application
of multiplier, it is seen that the age of the deceased mentioned in the
postmortem report was 55 years on the date of accident. But the Tribunal
taking the age of the wife of the deceased as 55 years on the date of
filing of the claim application in the year 2003 has guessed that the
deceased must be around 60 years on the date of accident. It appears that
the Tribunal has forgotten the date of accident as 29th December, 1996.
Therefore, the Tribunal has committed error apparent on the face of the
record, which is corrected to the effect that the deceased was 55 years old
on the date of accident as mentioned in the postmortem report.
Accordingly, multiplier 11 is taken for the purpose of computation of
compensation.
9. So far as the income of the deceased is concerned, the claimants
have not adduced any documentary evidence in support of the same.
Despite their claim being that the deceased was working as a Peon in the
Gram Panchayat Office, neither any salary certificate nor any other
documents was produced on record and no specific evidence has been
brought on record to suggest any definite income of the deceased. The
eldest son of the deceased coming to the witness box as P.W.1 has only
stated to the effect that the deceased was serving as a Peon in the Gram
Panchayat Office as well as a cultivator. Admittedly, as per the evidence
of P.W.1, they don't have any cultivable land. Therefore, in absence of
any specific material, the annual income determined by the Tribunal at
Rs. 15,000/- in terms of Section 163(A) of the M.V. Act cannot be
faulted with. Adding 10% thereto towards future prospects and deducting
1/3rd towards personal expenses, applying multiplier 11 as stated above,
and further adding Rs.70,000/- towards conventional heads including
spousal consortium for the widow, the compensation amount is enhanced
to Rs.1,91,000/-.
10. Next coming to the challenges advanced by the Insurer, it is seen
that the offending Tractor had no valid permit to attach the Trolley with
it. The driver had the license to drive the tractor only and the insurance
policy was for the tractor only. It has been clearly mentioned in the
policy that the same will be used for agricultural purpose only. Secondly,
no material is there to reveal that the deceased was authorized to travel in
the vehicle with paddy bags being the Peon of Gram Panchayat Office
and the paddy bags belonged to Panchayat. The seizure list is silent about
the same. So viewing from any angle, the deceased seems to be a
gratuitous passenger in the offending vehicle at the time of accident as
travelling of the deceased in the same is the admitted case of all parties.
11. In the impugned judgment at Paragraph-7 though the Tribunal has
concluded that the owner alone is liable to pay the compensation and the
Insurer is not liable for the same, but strangely concluded in the ordering
portion that the Insurer should pay the compensation with right to
recover from the owner. As the law has been settled on this point, such
direction of the Tribunal to pay the compensation and thereafter recover
the same from the owner is not sustainable. As such, the Insurer i.e.,
New India Assurance Co. Ltd. is absolved of its liability to pay the
compensation.
12. In the result, the owner of the offending vehicle-Respondent No.1
in MACA No.947 of 2009 and Respondent No.5 in MACA No.667 of
2009 is directed to pay compensation of Rs.1,91,000/- (one lakh ninety-
one thousand only) to the claimants along with interest @6% per annum
from the date of filing of the claim application by depositing the same
before the learned Tribunal, which shall be disbursed in favour of the
claimants on such terms and proportion to be fixed by the Tribunal.
13. The statutory deposit made by the Appellant in MACA No.667 of
2009 with accrued interest thereon be refunded to him on proper
application.
14. With the aforesaid directions, both the appeals are disposed of.
(B.P.Routray)
Judge
C.R.Biswal.
