Orissa High Court
The Divisional Manager vs Smt. Basanti Patra And Others on 21 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.917 of 2014 & MACA No.677 of 2014
In MACA No.917 of 2014
The Divisional Manager, The ICICI .... Appellant
Lombard General Insurance Company
Limited
Mr. A.A. Khan, Advocate
-versus-
Smt. Basanti Patra and others .... Respondents
Mr. J.J. Mohanty, Advocate for Respondent Nos.1 to 4
In MACA No.677 of 2014
Basanti Patra and others .... Appellants
Mr. J.J. Mohanty, Advocate
-versus-
Bijay Kumar Sahu and another .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
21.09.2022
Order No.
I.A. No.937 of 2022 arising out of MACA No.677 of 2014
12. 1. Learned counsel for the Appellants wants to withdraw the
I.A.
2. Accordingly, the I.A. is dismissed as withdrawn.
MACA No.917 of 2014 & MACA No.677 of 2014
3. Heard Mr. A.A. Khan, learned counsel for the Insurance
Company and Mr. J.J. Mohanty, learned counsel for the
claimants.
4. Both the appeals being arise out of the same judgment dated
25.06.2014 of the learned 1st MACT, Puri wherein compensation
to the tune of Rs.5,20,000/- has been granted along with interest
@7.5% per annum to the claimants from the date of filing of the
claim application, i.e.04.11.2009 on account of death of the
deceased in the motor vehicular accident dated 9.4.2009, are
heard together and disposed of by this common order.
5. MACA No.677 of 2014 has been filed by the claimants
praying for enhancement of compensation amount and MACA
No.917 of 2014 has been filed by the insurer challenging the
award.
6. It is contended on behalf of the claimants that the Tribunal
has not properly assessed the income of the deceased and also did
not add future prospects and consortium to the compensation. It is
also submitted that the treatment expenses of the deceased was
also not counted by the learned Tribunal.
7. On the other hand, Mr. Khan, learned counsel for the insurer
submits that the alleged offending motorcycle bearing
Registration No.OR-05-AC-7073 is not involved in the accident,
but has been implanted subsequently to manage the
compensation. Mr. Khan also questions the quantum of
compensation by submitting that the monthly income at Rs.5100/-
counted by learned Tribunal is without any material.
8. First coming to the challenge with regard to the involvement
of the offending motorcycle in the accident, Mr. Khan relies on
the statement recorded at Column No.9 of the inquest report
under Ext.A, wherein it is stated that a truck is involved in the
accident. Such contention is also fortified with delay in lodging
the FIR. It needs to be mentioned here that the accident took
place on 9.4.2009 and the FIR was lodged on 22.12.2009. The
copy of the FIR under Ext.2 reveals that pursuant to filing of the
complaint case under Section 156 of the Cr.P.C. and the direction
passed therein by the Magistrate, Satyabadi P.S. Case No.167,
dated 22.12.2009 was registered and the Police submitted the
charge-sheet stating no evidence against the alleged driver.
9. It reveals that three witnesses were examined on behalf of the
claimants and among them P.W.1 is the widow of the deceased
and P.W.2 is the eye-witness of the accident. As per P.W.2, the
accident took place by the offending motorcycle and in the cross-
examination by the insurer he confirms to have seen the accident
caused by such motorcycle. On perusal of his evidence, it is
found that nothing could be elicited from his mouth to disbelieve
his evidence made in the examination-in-chief. Said P.W.2 has
confirmed in his cross-examination that he was examined by the
Police as a witness. The entire contention of Mr. Khan to
disbelieve involvement of the motorcycle in the accident is based
on the statement of the witness recorded in the inquest report. As
per the inquest report under Ext.A, the name of the witness, who
made such statement during inquest, is Niranjan Patra and further,
Claimant No.1-Basanti Patra (widow) has signed at Column
No.11. The insurer did not examine any witness on its behalf to
prove such contents of the inquest report. Even in course of cross-
examination of Basanti Patra (P.W.1), neither such contents of the
inquest report was confronted to her nor was any question put to
her regarding the same. Even no suggestion was put to P.W.1
regarding involvement of the truck in the accident and non-
involvement of the motorcycle. As such, upon analysis of all such
evidence brought on record, the contention of the insurer to
disprove involvement of the offending motorcycle in the accident
is found with any substance and thus rejected.
10. Here it needs to be mentioned that, since the Police did not
register a case pertaining the accident despite registration of UD
Case No.405/2009 by Mangalabag P.S., the complainant was
compelled to approach the Magistrate under Section 156 of the
Cr.P.C. at such belated stage.
11. Next coming to the question of quantum of compensation, it
is seen that the learned Tribunal has accepted the income of the
deceased as a mason at Rs.5100/- per month based on oral
evidence adduced from the side of the claimants. But as per the
Notification No.293, dated 28.4.2007 of Government of Orissa,
minimum wages @ Rs.70/- per day was prevalent on the date of
accident for unskilled labourer. In absence of any documentary
evidence and reliable proof with regard to income of the deceased
and considering his profession as a mason, it is found apposite to
take his income at Rs.70/- per day as an unskilled labourer.
Accordingly, the monthly income is computed at Rs.2100/- and
adding 10% to the same towards future prospects, since the age of
the deceased was 55 years, the annual income comes to
Rs.27,720/-. Deducting 1/4th from the same towards personal
expenses, the annual loss of dependency comes to Rs.20,790/-.
Applying multiplier '11', the total loss of dependency is
determined at Rs.2,28,690/- and adding consortium of
Rs.40,000/- to each of the claimants as well as Rs.30,000/-
towards general damages, it comes to Rs.4,18,690/-, rounded to
Rs.4,20,000/-. Thus the total compensation amount is determined
at Rs.4,20,000/- payable along with interest @6% per annum.
12. So far as the expense of treatment of the deceased is
concerned as per the contention of the claimants, the same is not
proved on record through material evidence. No document has
been produced to reveal any expense incurred by the claimants
towards the treatment of the deceased in the hospital, who died on
the next day of the accident. Moreover, the deceased was treated
at SCB Medical College and Hospital, Cuttack which is a
Government Hospital. Therefore, no amount towards the same is
liable to be added to the compensation amount.
13. In the result, both the appeals are disposed of with a direction
to the Insurance Company, i.e.ICICI Lombard General Insurance
Company to deposit the modified compensation of Rs.4,20,000/-
(rupees four lakhs twenty thousand) before the Tribunal along
with interest @6% per annum from the date of filing of the claim
application, i.e.4.11.2009 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.
However, this Court has not disturbed the finding of the
learned Tribunal regarding right of recovery granted in favour of
the Insurance Company.
14. On deposit of the award amount before the Tribunal and
filing of a receipt evidencing the deposit with a refund application
before this Court, the statutory deposit made before this Court in
MACA No.917 of 2014 with accrued interest thereon shall be
refunded to the Appellant-Insurance Company.
15. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
