Orissa High Court
Kalpataru Behera And Others vs Ganesh Behera And Another on 16 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.396 of 2019
Kalpataru Behera and Others .... Appellants
Mr. P.K. Mishra, Advocate
-versus-
Ganesh Behera and Another .... Respondents
Mr. A.A. Khan, counsel for Respondent No.2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
16.11.2022
Order No.
05. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Mishra, learned counsel for the claimant -
Appellants and Mr. A.A. Khan, learned counsel for the insurer -
Respondent No.2.
3. Present appeal by the claimants is against the impugned
judgment dated 24th April, 2019 of the learned 1st MACT,
Jagatsinghpur passed in MAC Case No.1494 of 2014, wherein the
tribunal has refused to grant any compensation to the claimants by
disbelieving their case.
4. The facts of the case reveal that, according to the claimants, the
deceased, namely Parbati Behera while going in the offending motor
cycle bearing registration number OD 01C 8991 driven by the owner
- driver Ganesh Behera, she fell down from the motor cycle due to
rash and negligent driving of the driver and died three days thereafter.
5. The tribunal disbelieved the case of the claimants on the ground
that the accident took place as another motor cycle dashed against the
present offending motor cycle according to the statement of a witness
recorded in the inquest report under Ext.5, and that the F.I.R. was
lodged after seven days of the accident, i.e. on 4th June, 2014.
6. Mr. Mishra, learned counsel for the Appellant challenges such
finding of the tribunal by submitting that mere delay in lodging the
F.I.R. and the statement of the witness, who is not an eye witnesses to
the accident, recorded in the inquest report cannot nullify the case of
the Appellant. According to him, the tribunal committed gross error in
disbelieving the case of the Appellant.
7. Mr. Khan in his reply submits that the inquest report under
Ext.5 is the document relied on by the claimants and therefore, the
they cannot deny the statement recorded in the said document brought
on record by themselves.
8. The owner - Respondent No.1 has contested the case before the
tribunal and he admitted the accident as well as death of the deceased
in the hospital. He further admits involvement of the offending motor
cycle in the said accident.
9. The F.I.R. was lodged on 4th June, 2014 and the accident took
place on 29th May, 2014. In the contents of the F.I.R. (Ext.1) the delay
in lodging the same has been explained by the informant stating that
due to pressure of treatment of the deceased and her death, the delay
occurred in lodging the F.I.R. The tribunal in the impugned judgment
did not discuss such explanation offered in the F.I.R. itself towards the
cause of delay in lodging the F.I.R. It is seen that the tribunal has
mainly relied on the statement recorded at column 9 of the inquest
report under Ext.5. It is seen that this statement has been recorded by
one witness namely, Panchanan Mahalik. He is not the eye witness
according to the police investigation report. He is not even cited as a
witness in the criminal case. It needs to be mentioned here that the
police upon investigation has submitted charge-sheet against the
accused driver Ganesh Behera for commission of offence
U/s.379/304-A of I.P.C.
10. Law is well settled on the standard of proof required to be
adduced in a motor accident compensation case. As held in the case of
Mangla Ram v. Oriental Insurance Company Ltd. and Others,
(2018) 5 SCC 656 and Bimala Devi and Others v. Himachal Road
Transport Corporation and Others, (2009) 13 SCC 530, the case of
claimants for motor accident compensation is to be tested on the
principles of preponderance of probability. The evidence required to
be appreciated is on the touchstone of preponderance of probability
and the principles of strict liability is not applicable in compensation
case. Keeping in view the evidence of P.W.2, coupled with the
submission of charge-sheet and admission of the owner - driver of the
offending motor cycle, no iota of doubt remains to disbelieve the case
of the claimants and in this regard, neither the statement recorded in
the inquest report nor the alleged delay in lodging the F.I.R. would
stand as a hindrance. Accordingly, it is held that the claimants have
established their case that the deceased died due to the negligence of
the driver of the offending motor cycle bearing registration number
OD 01C 8991.
11. With regard to quantification of compensation amount as well
as liability of the insurer, the tribunal has not discussed anything in
the impugned judgment.
12. Mr. Khan does not dispute the validity of the insurance policey
of the offending vehicle on the date of accident. On the other hand a
copy of the policy has been filed on behalf of the insurer under Ext.B.
The insurer also does not allege violation of any policy condition.
Therefore, no doubt remains regarding liability of the insurer to
indemnify the compensation amount.
13. The deceased is a woman aged about 40 years according to the
claim of the Appellants. The copy of the post mortem examination
report under Ext.7 reveals that the age of the deceased is 40 years, as
such her age is determined at 40 years and the applicable multiplier
would be '15'.
14. Next coming to see the income of the deceased, according to
the claimants she was earning Rs.9000/- per month from tailoring
business. But no such document is produced in support of their claim
to the extent of earning Rs.9000/- per month from tailoring business.
However, keeping in view the statement of P.W.1 and believing his
statement that the deceased was doing tailoring business, her income
can be assessed at Rs.6000/- per month keeping in mind the date of
accident on 29th May, 2014. Adding future prospects to the extent of
25%, the monthly income comes to Rs.7,500/-, as such the annual
income comes to Rs.90,000/-. Deducting 1/4th towards personal
expenses, the balance amount remains Rs.67,500/-. Applying
multiplier '15', the total loss of dependency comes to Rs.10,12,500/-.
Adding consortium of Rs.1,60,000/- to the husband and three children
and Rs.30,000/- towards general damages, it comes to Rs.12,02,500/-.
15. Nothing has been stated by the claimants towards treatment
expenses of the deceased though she was treated at SCB Medical
College and Hospital, Cuttack for 3 days due to the injuries.
16. Accordingly the total compensation amount is determined at
Rs.12,02,500/- which is payable along with interest @ 6% per annum.
17. In the result the appeal is allowed and the insurer - Respondent
No.2 is directed to deposit before the tribunal a total compensation of
Rs.12,02,500/- (twelve lakh two thousand five hundred) along with
interest @ 6% per annum from the date of filing of the claim
application, within a period of two months from today, where-after the
same shall be disbursed in favour of the claimant - Appellants on such
terms and proportion to be decided by the learned tribunal.
18. The copies of depositions and exhibits filed in course of hearing
are kept on record.
19. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
