The Divisional Manager vs [email protected] Biswamitra Pradhan And
2022 Latest Caselaw 4407 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   MACA No.1171 of 2018

            The Divisional Manager,
            M/s.National Insurance Co. Ltd.          ....       Appellant
                                               Mr.B.Dasmohapatra, Advocate

                                          -versus-

            [email protected] Biswamitra Pradhan and
            others                            ....        Respondents
                    Mr.K.C.Nayak, Advocate for Respondents nos. 1 & 2

                        CORAM:
                        JUSTICE B. P. ROUTRAY
                                       ORDER

06.09.2022 Order No. I.A.No.1798 of 2018

6. 1. The matter is taken up through Hybrid mode.

2. Upon hearing both the parties and considering the grounds mentioned in the petition, delay in filing the appeal is condoned.

3. The I.A. is disposed of.

MACA No.1171 of 2018

4. Heard Mr.Dasmohapatra, learned counsel for the Appellant and Mr.Nayak, learned counsel for the claimants-Respondent Nos.1 and 2.

5. Present appeal by the Insurer is directed against the judgment dated 26th July, 2018 passed by learned Addl. District Judge- Cum-4th M.A.C.T., Angul in M.A.C. Case No.180 of 2016,

wherein compensation to the tune of Rs.9,34,000/- has been granted along with interest @ 6% per annum with effect from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident dated 9th September, 2016.

6. It is submitted on behalf of the Appellant that the offending bus at the time of accident was travelling with over passengers than permitted under the law and therefore, the policy conditions being violated, right of recovery should be granted in favour of the Insurer. It is further submitted that the ex-gratia compensation received by the claimants from the Government was not adjusted from the amount of compensation granted.

7. Shri Nayak, learned counsel for the claimants-Respondents though did not dispute travel of more passengers in the offending bus than permitted, but submits that the amount received through ex-gratia compensation is not liable to be deducted.

8. Perusal of the impugned judgment reveals that admittedly more passengers than permitted by the Transport Authorities were travelling in the offending bus at the time of accident which fell into the river being dashed with the poll near the bridge resulting death of nineteen passengers and injury to forty two passengers. The list of the passengers injured in the accident as well as the name of deceased passengers is well evident from copy of Ext.A as well as the police report under Ext.2. Therefore, the claim for getting right of recovery from the owner of the compensation amount is found justified.

9. With regard to the amount of ex-gratia compensation of Rs.2,00,000/- received by the claimants from the Government is not disputed. The same being a pecuniary advantage received only due the death arising out of the accident, is liable to be adjusted form the compensation amount.

10. Next coming to the quantum of compensation, perusal of the impugned judgment reveals that the deceased was a second year student of plus three degree course and was selected for admission in Auxiliary Nurse & Midwives Training Course. Thus taking her as a non-earning person and considering her educational qualifications as well as career prospects, the Tribunal has assessed her monthly income at Rs.8,000/- by guess work. But the final compensation amount was determined without adding any future prospects. However, in absence of any challenge from the side of the claimants, this Court is not inclined to interfere with said aspect. In the circumstances, such quantification of the compensation amount arrived by the Tribunal is confirmed. However, the default interest part as directed to be paid is waived.

11. In the result, after adjusting the ex-gratia compensation amount, the appeal is disposed of with a direction to the Insurer- Appellant to deposit a sum of Rs.7,34,000/- 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 claimants on such terms and proportion to be fixed by the Tribunal. Further the Insurer-

Appellant is at liberty to recover the compensation amount from the owner in accordance with law after granting him opportunity of hearing.

12. The statutory deposit made by the Appellant with accrued interest thereon be refunded to him on proper application and on production of proof of deposit of the award amount before the learned Tribunal.

13. Urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge C.R.Biswal