Orissa High Court
M/S.New India Assurance Co. Ltd vs Pramila Palai And Others on 15 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.138 of 2022
M/s.New India Assurance Co. Ltd. .... Appellant
Mr. S.S. Rao, Advocate
-versus-
Pramila Palai and others .... Respondents
Mr. P.K. Mishra, Advocate for Respondent Nos.1 & 2
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
15.11.2022
Order No.
03. 1. Heard Mr. S.S. Rao, learned counsel for the Appellant-
Insurance Company as well as Mr. P.K. Mishra, learned counsel
for the Respondent Nos.1 & 2-claimants.
2. Present appeal by the insurer is directed against the judgment
dated 07.10.2021 of learned 1st M.A.C.T., Kendrapara in M.A.C.
Case No.78 of 2017 wherein compensation to the tune of
Rs.60,92,500/- has been granted along with interest @7% per
annum to the claimants from the date of filing of the claim
application, i.e. 05.09.2017 on account of death of the deceased in
the motor vehicular accident dated 20.01.2017.
3. Mr. S.S. Rao, learned counsel contends for the Appellant that
the offending vehicle, i.e. Maruti Alto Car bearing Registration
No.OR-02-S-8655 was not involved in the accident, but has been
implanted to manage the compensation. In support of his
contention, it is submitted by Mr. Rao that the accident took place
on 20.01.2017 and the FIR was lodged on 28.01.2017 and in the
inquest report, it is stated that the accident was caused by an
unknown vehicle.
4. It reveals from the impugned judgment that no evidence has
been adduced from the side of the insurer. So, for the mere reason
that the FIR was lodged eight days after the accident, it would not
appropriate to held that the vehicle has been implanted.
Moreover, the owner has admitted registration of Police case due
to the accident against him and did not deny involvement of the
offending car in the accident. The Police have submitted charge-
sheet against the driver of the offending car upon completion of
investigation. Therefore no point is seen to disbelieve the
involvement of the offending car in the accident and as such, the
contention of Mr. Rao is rejected.
5. With regard to the quantum of compensation, it is submitted by
Mr. Rao that filial consortium to the extent of Rs.1,20,000/- and
grant of further Rs.1,00,000/- towards loss of love and affection
are erroneous. Again, the treatment expenses and hospitalization
charges to the tune of Rs.1,93,300/- and Rs.11,000/- respectively
have been assessed exorbitantly.
6. After hearing Mr. P.K. Mishra, learned counsel for Respondent
Nos.1 & 2 - claimants and upon perusal of the computation of
compensation amount, several flaws have been noticed. It is seen
that the statutory tax amount has been deducted erroneously and
the extent of personal expenses have been deducted at a lesser
amount, i.e. 1/4th instead of 1/3rd.
7. In view of the same, the amount of compensation is
recomputed afresh.
8. There is no dispute in the monthly income and age of the
deceased. The deceased was serving as a Clerk in Odisha Gramya
Bank and getting Rs.64,048/- per month just before his death.
Thus his annual income comes to Rs.7,68,576/-. Deducting
professional tax of Rs.2500/- and income tax to the tune of
Rs.65,715/-, at the applicable rate prevalent on the date of
accident, the balance amount remains Rs.7,00,361/-. Adding
future prospects to the extent of 15% thereof, it comes to
Rs.8,05,415/-. Deducting 1/3rd towards personal expenses and
applying multiplier '9', the total loss of dependency comes to
Rs.48,32,490/-. It needs to be mentioned here that the wife and
son of the deceased are the claimants. But the learned Tribunal
has added the married daughters with them without any basis and
such approach of the Tribunal is set aside being found erroneous
without any claim raised from either side.
9. The total loss of dependency derived as above to the tune of
Rs.48,32,490/- to be added with Rs.80,000/- towards loss of
consortium to the wife and son and general damages of
Rs.30,000/-.
10. With regard to treatment expenses, it is seen that the deceased
remained as indoor patient for seven days in AMRI Hospital,
Bhubaneswar. In the impugned judgment, the learned Tribunal
has though mentioned that the claimants have filed medicine bills
of AMRI Hospital, Bhubaneswar to the tune of Rs.1,93,300/-, but
no such document is seen to have been brought on record by
marking exhibits. Perusal of copy of the evidence of P.W.1
(Appellant No.2-claimant) reveals that he has said in his evidence
to have spent Rs.1,93,300/- for the treatment of the deceased in
AMRI Hospital, Bhubaneswar. Though in the examination-in-
chief, it is stated that the bills/receipts of AMRI Hospital,
Bhubaneswar has been filed, but no such document has been
marked in exhibit by the learned Tribunal. It is also seen from the
cross-examination that nothing has been asked to him by the
insurer disputing such amount of expenses incurred for the
treatment of the deceased. Therefore, keeping in view the
statement of P.W.1, which remains unchallenged, and considering
the undisputed period of treatment of the deceased in AMRI
Hospital, Bhubaneswar for seven days as indoor patient, the
amount of treatment expenses to the tune of Rs.1,93,300/-
counted by the learned Tribunal is confirmed. There being no
other material regarding further expenses of Rs.11,000/- towards
hospitalization charges, the same is discarded. Accordingly, the
total compensation amount is determined at Rs.51,35,790/-, i.e.
Rs.48,32,490/- + Rs.80,000/- + Rs.30,000/- + Rs.1,93,300/-.
11. In the result, the appeal is disposed of with a direction to the
Appellant - Insurance Company to deposit the total compensation
of Rs.51,35,790/- (rupees fifty-one lakhs thirty-five thousand
seven hundred ninety) before the Tribunal along with interest
@6% per annum from the date of filing of the claim application,
i.e. 05.09.2017 within a period of two months from today; where-
after the same shall be disbursed in favour of the claimants-
Respondent Nos.1 & 2 on such terms and proportion to be fixed
by the Tribunal.
12. On deposit of the award amount before the learned Tribunal
and filing of a receipt evidencing the deposit with a refund
application before this Court, the statutory deposit made before
this Court with accrued interest thereon shall be refunded to the
Appellant-Insurance Company.
13. Copies of the evidences and other documents filed by Mr.
S.S. Rao, learned counsel for the Appellant in course of hearing
are kept on record.
14. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
