Orissa High Court
Divisional Manager vs Smt. Manorama Bisoi And Others on 23 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.402 of 2020
Divisional Manager, The New India
Assurance Company Ltd. .... Appellant
Mr. G.P. Dutta, Advocate
-versus-
Smt. Manorama Bisoi and Others .... Respondents
Mr. B.N. Rath, counsel for Respondents 1-3
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
23.11.2022
Order No.
11. 1. The matter is taken up through hybrid mode.
2. Heard Mr. G.P. Dutta, learned counsel for the insurer -
Appellant and Mr. B.N. Rath, learned counsel for claimant -
Respondents 1-3.
3. Present appeal by the insurer is against impugned judgment
dated 24th December, 2019 of learned 1st MACT, Angul passed in
MAC Case No.143 of 2018 wherein compensation to the tune of
Rs.10,86,532/- 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 Hemanta Kumar Bisoi in the motor vehicular accident
dated 4th July, 2018.
4. The contention of Mr. Dutta on behalf of the Appellant is to the
effect that the deceased being an insured person under the ESI Act, is
not entitled to get compensation under the Motor Vehicle Act
(hereinafter referred as 'the MV Act') keeping in view the bar
prescribed under Sections 53 and 61 of the Employees' State
Insurance Act (hereinafter referred as 'the ESI Act').
5. This court earlier in MACA No.75 of 2021 has held that, when
the accident is purely a motor vehicular accident arises by use of a
motor vehicle and is completely unconnected to the nature of the
employment of the injured, the claim for compensation under Section
166 of the MV Act is maintainable and in such case, the bar
prescribed under the ESI Act is not attracted. It is further observed
that, the statutes like the ESI Act, EC Act and MV Act, which are
containing beneficial provisions for the poor victim, are to be
interpreted for the benefit of the victim and it would be harsh to send
the victim of a motor vehicular accident or his dependents to the ESI
court only for the reason that he is/was an insured person under the
ESI Act, even if the cause of injury is completely unconnected to the
nature of employment.
6. In the instant case, no material is there to reveal that the
accident in any way is connected to the employment of the deceased
either directly or incidentally. The evidence of the witnesses does not
reveal so nor any question is put by the insurer to them in course of
their cross-examination to that effect. Therefore, as held by this court
in the earlier case stated above, the accident being found unrelated and
unconnected to the employment of the deceased, the claim application
filed under Section 166 of the MV Act by the claimants is
maintainable and the direction of the tribunal for payment of
compensation in the impugned judgment is thus justified.
7. With regard to quantum of compensation it is submitted by Mr.
Dutta that the tribunal has erroneously added future prospects to the
extent of 15% instead of 10%. This submission of Mr. Dutta is found
with substantial force in view of the principles propounded in the case
of National Insurance Company Ltd. v. Pranay Sethi and Others
(2017) 16 SCC 680, as the undisputed age of the deceased is 57 years.
Thus, re-computing the compensation afresh, leaving the monthly
income of the deceased undisturbed and adding 10% towards future
prospects, a modified compensation of Rs.10,42,338/- with 6%
interest is proposed to the parties. This is agreed by Mr. Rath, learned
counsel for the claimants and Mr. Dutta, learned counsel for the
insurer leaves it to the discretion of the court. Accordingly the
compensation amount is fixed to the said extent.
8. In the result the appeal is disposed of with a direction to the
Appellant - insurer to deposit the modified compensation amount of
Rs.10,42,338/- (ten lakhs forty two thousand three hundred thirty
eight) before the tribunal 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 - Respondents on such terms and proportion to be
decided by the learned tribunal.
9. The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
10. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
