Orissa High Court
National Insurance Company ... vs Kuni Sahu And Others on 23 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.996 of 2017
National Insurance Company Limited .... Appellant
Mr. D.K. Patra, Advocate on behalf of Mr. G. Mishra, Senior
Advocate
-versus-
Kuni Sahu and others .... Respondents
Mr. P.K. Mishra, Advocate for Respondent Nos.1 to 3
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
23.11.2022
Order No.
10. 1. Heard Mr. D.K. Patra, learned counsel on behalf of Mr. G.
Mishra, learned Senior Advocate for the Appellant-Insurance
Company as well as Mr. P.K. Mishra, learned counsel for the
Respondent Nos.1 to 3-claimants.
2. Present appeal by the insurer is directed against the judgment
dated 10.05.2017 of learned 2nd M.A.C.T. (Southern Division),
Berhampur, Ganjam in M.A.C. Case No.10/2016 (171/2015-
GDC), wherein compensation to the tune of Rs.44,08,124/- has
been granted along with interest @7% per annum to the claimants
from the date of filing of the claim application, i.e. 18.06.2015 on
account of death of the deceased in the motor vehicular accident
dated 30.03.2015.
3. Mr. D.K. Patra, learned counsel submits on behalf the insurer
that the procedure adopted by the Tribunal in determining the loss
of dependency is faulty one and further, no deduction towards
personal expenses has been made.
4. Upon hearing Mr. P.K. Mishra, learned counsel for the
claimants-Respondent Nos.1 to 3 and perusal of the impugned
judgment, it reveals that the deceased was 44 years of age at the
time of accident and according to the claimants, he was earning
Rs.25,000/- per month. However, P.W.1-the widow, has stated in
her evidence that her husband was earning Rs.40,000/- to
Rs.50,000/- per month having rice (broken rice) business and also
from the share towards running of a rice hauler machine along
with his brothers.
5. The documents produced under Ext.9 series and 10 are the LIC
bonds. It is revealed there-from that, that an amount of
Rs.2,37,366/- were paid per annum towards premium of those
LIC policies. What the learned Tribunal did is, he took such total
amount of premium to the tune of Rs.2,37,366/- paid per annum
towards loss of annual dependency and added Rs.40,000/- to it
derived from the share of running of the hauler machine. For
deriving income and loss of dependancy from hauler machine, the
Tribunal concluded about monthly income of Rs.5000/- from the
share towards hauler and deducted 1/3rd from the said income
only. The Tribunal thus confined the loss of dependency to
Rs.40,000/- per annum from the source of hauler machine. As
stated earlier, Rs.2,37,366/- paid towards LIC premium by the
deceased, has been directly counted towards loss of dependency
without determining the actual income of the deceased. Such
approach and procedure adopted by the learned Tribunal appears
erroneous and needs interference.
6. It is true that no documentary evidence has been adduced
regarding income of the deceased. As per evidence of the widow
(P.W.1), the deceased was earning Rs.40,000/- to Rs.50,000/- per
month. Her evidence regarding payment of LIC premium of
Rs.2,37,366/- is supported with documents. Her evidence towards
receipt of Rs.5000/- per month from the brothers of the deceased
from the rice hauler machine is confirmed in her cross-
examination. Therefore, her evidence regarding income of the
deceased to the tune of Rs.40,000/- to Rs.50,000/- per month is
though not proved, but keeping in view such materials brought in
course of her evidence coupled with the place of residence of the
deceased and other circumstances, the income of the deceased can
be assessed at Rs.35,000/- per month by doing some guess work.
Accordingly, the income of the deceased is fixed at Rs.35,000/-
per month.
7. The number of dependants being three, 1/3 rd of the income is
liable to be deducted towards personal expenses. Thus, the annual
loss of dependency is counted at Rs.2,80,000/-. Applying
multiplier '14', total loss of dependency comes to Rs.39,20,000/-.
It needs to be mentioned here that though future prospects is
liable to be added to the income of the deceased, but in absence of
any appeal from the side of the claimants, the same is not granted.
Adding Rs.1,20,000/- towards consortium for the widow and two
children and general damages to the tune of Rs.30,000/-, the total
compensation amount is determined to Rs.40,70,000/-, payable
along with interest @6% per annum.
8. With regard to liability, the insurer-Appellant has filed I.A.
No.890/2018 by adducing the copy of DL of the accused-driver
with submission that he was not authorized to drive the offending
vehicle, which was a heavy goods carriage vehicle. The copy of
the DL of the accused-driver, namely, Md. Jabbar, reveals that he
was authorized to drive LMV (commercial) only on the date of
accident. As such, violation of policy conditions being seen, the
insurer is granted with right of recovery of the compensation
amount from the owner in accordance with law.,
9. In the result, the appeal is disposed of with a direction to the
Appellant - Insurance Company to deposit the modified
compensation amount of Rs.40,70,000/- (rupees forty lakhs
seventy thousand) before the Tribunal along with interest @6%
per annum from the date of filing of the claim application, i.e.
18.06.2015 within a period of two months from today.
10. The entire compensation amount shall be disbursed among the
claimants-Respondents No.1 to 3 in equal share and 70% of the
amount fall due to the share of Respondent No.1-Kuni Sahu and
Respondent No.2-Rakesh Kumar Sahu be kept in fixed deposits
separately in any nationalized Bank for a period of five years and
the entire amount fall due to the share of minor Respondent No.3-
Roshan Kumar Sahu be kept in fixed deposit in any nationalized
Bank till he attains majority or for a period of five years,
whichever is later.
11. 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.
12. The copies of the depositions and documents filed by Mr.
Patra in course of hearing are kept on record.
13. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
