Orissa High Court
The New India Assurance Co. Ltd vs Lucyrani Ojha And Others on 27 October, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1170 of 2015
The New India Assurance Co. Ltd. .... Appellant
Mr. S.S. Rao, Advocate
-versus-
Lucyrani Ojha and others .... Respondents
Mr. D. Mund, Advocate for Respondent Nos.1 to 4
.
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
27.10.2022
Order No.
13. 1. Heard Mr. S.S. Rao, learned counsel for the Appellant-
Insurance Company as well as Mr. D. Mund, learned counsel for
the Respondent Nos.1 to 4-claimants.
2. Present appeal by the insurer is directed against the judgment
dated 13.07.2015 of learned 1st M.A.C.T., Koraput at Jeypore in
M.A.C. Case No.57 of 2013, wherein compensation to the tune of
Rs.58,00,000/- has been granted along with interest @7.5% per
annum to the claimants from the date of filing of the claim
application, i.e.03.03.2013 on account of death of the deceased in
the motor vehicular accident dated 20.01.2013.
3. Mr. Rao, learned counsel for the Appellant-insurer submits that
the assessment of income of the deceased and the reason to
double that amount is completely erroneous and therefore, the
impugned judgment is to be re-visited.
4. The claimants-Respondents have filed their cross objection
against the finding of the Tribunal fixing 50% negligence on the
deceased. Mr. Mund, learned counsel on behalf of the claimants,
submits that in absence of evidence to the contrary, learned
Tribunal is incorrect to attribute 50% negligence on the deceased.
5. First dealing with the negligence part, it is seen that the learned
Tribunal upon presuming the fact that, since the accident took
place in the middle of the road and it is a head-on-collusion, there
was negligence on the part of both the drivers.
6. Admittedly, no eye-witness to the accident has been examined
from either side. P.W.1, the widow of the deceased in her
evidence has taken support from the police investigation report.
The deceased at the time of accident was driving a motorcycle
and the offending vehicle is the Bus bearing Registration No.OR-
10-J-1708. Neither any witness has been examined from the side
of the insurer nor is any document produced to contradict the
opinion of the Police Investigation Officer mentioned in the
prosecution report where charge-sheet has been submitted against
the driver of the offending Bus. So in absence of any evidence
contrary to the evidence of P.W.1, which is supported with police
reports, no justification is found on the part of the Tribunal to
contribute 50% negligence on the deceased for the only reason
that the accident took place on the middle of the road. The said
finding of the Tribunal is set aside and it is held that the driver of
the Bus is entirely negligent for the cause of the accident.
7. With regard to the dispute on quantum of compensation, it is
seen that the learned Tribunal has doubled the income of the
deceased on the presumption that at the time of retirement, he
would have received such an amount. The deceased was 35 years
old on the date of accident and was serving as Senior Asst. in
NALCO. The salary slips of the deceased have been brought on
record through OPW-1, the witness produced from the side of the
employer-cum-owner of the offending Bus and the same are not
disputed. As per Ext.A, the salary slip of the deceased for the
month of December, 2012, he received Rs.46,996/- towards pay
plus DA. Accordingly the annual salary comes to Rs.5,63,952/-.
Deducting income tax to the tune of Rs.37,790/- and professional
tax of Rs.2500/- therefrom, the balance amount comes to
Rs.5,23,662/-. Adding 50% future prospects thereto, it comes to
Rs.7,85,493/-. Applying multiplier '15' and deducting 1/4th
towards personal expenses, the total loss of dependency comes to
Rs.88,36,796/-. Granting consortium to the tune of Rs.40,000/- to
the wife and minor daughter and general damages of Rs.30,000/-,
the total compensation determined is Rs.89,46,796/-.
8. Mr. Rao further contends that since the wife of the deceased
has got rehabilitation appointment, therefore, the amount so
received by her during her employment would be deducted from
the compensation amount. Such submission advanced by Mr. Rao
is not acceptable and it is settled that the benefits like pension,
rehabilitation appointment etc attached with employment of the
deceased have no impact for determination of compensation in
the motor accident case. As such, the contentions of Mr. Rao are
rejected.
9. In the result, the appeal is disposed of with a direction to the
Appellant-insurer to pay the total compensation of Rs.89,46,796/-
(rupees eighty-nine lakhs forty-six thousand seven hundred
ninety-six) to the claimants along with interest @6% per annum
from the date of filing of the claim application, i.e. 03.03.2013 by
depositing the same within a period of three months from today,
where-after the same shall be disbursed among the claimants-
Respondent Nos.1 to 4 in the following ratio:-
The wife and minor daughter, namely Lucyrani Ojha
and Pragyan Bharati Nahak respectively, will get 70% of the total
compensation amount in equal share. 25% amount shall be given
to the mother, namely, Hemalata Nahak (Respondent No.3).
Balance 5% amount shall be given to the father - Respondent
No.4.
75% of the share of each Respondent Nos.1, 3 and 4
shall be kept in fixed deposit in any nationalized Bank for a
period of 6 years with quarterly interest payable to the depositors.
The entire amount fall to the share of minor daughter
(Respondent No.2) shall be kept in fixed deposit till she attains
majority.
10. 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.
11. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
