Legal Executive vs Laxmipriya Prusty And Others
2023 Latest Caselaw 2664 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  MACA No.21 of 2020
                 Legal Executive, IFFCO-TOKIO
                 General Insurance Company Ltd.          ....          Appellant
                                                      Mr. A.A. Khan, Advocate
                                           -versus-
                 Laxmipriya Prusty and Others            ....       Respondents
                           Mr. Debasish Patnaik, counsel for Respondents 1 to 3

                           CORAM:
                           SHRI JUSTICE B. P. ROUTRAY
                                         ORDER

3.4.2023 Order No.

07. 1. The matter is taken up through hybrid mode.

2. Heard Mr. A.A. Khan, learned counsel for insurer - Appellant and Mr. Debasish Patnaik, learned counsel for the claimant - Respondents 1, 2 and 3.

3. Present appeal by the insurer is directed against the impugned judgment dated 6th November, 2019 of learned 1st MACT, Nayagarh passed in MAC Case No.130 of 2017, wherein compensation to the tune of Rs.11,86,000/- along with interest @ 6% per annum from the date of filing of the claim application, i.e. 27th December, 2017 has been granted on account of death of deceased Amulya Kumar Prusty in the motor vehicular accident dated 18th December, 2017.

4. Mr. Khan submits that involvement of the offending vehicle, i.e. motor cycle bearing registration number OD-25-E-2044 is doubtful since no particular about the offending vehicle was mentioned in the F.I.R..

Such contention of the insurer is rejected on the face of the fact that the police upon completion of investigation has submitted charge- sheet against the accused driver of the offending vehicle stating involvement of the same in the accident. The eye-witness, viz. P.W.2 has categorically stated about involvement of the vehicle in accident and the negligence on the part of its driver. This is not sufficiently rebutted. Thus, the finding of the tribunal in this regard is confirmed.

5. With regard to quantum of compensation, Mr. Khan urges for reduction of the same on the ground that the deceased was a deaf and dumb person without having any employment.

6. Conversely, the claimants have prayed for enhancement of the compensation amount by filing cross-appeal. According to the claimants, the deceased was working as Manager of his brother's (P.W.3) petrol pump and getting Rs.16,000/- per month as salary.

7. It is seen that P.W.3 by coming to the witness box has stated about employment of the deceased in his petrol pump and produced the appointment order under Ext.8. It is true that no documentary evidence with regard to salary particulars of the deceased was produced by the claimants on record. The date of accident is 18th December, 2017. In absence of any documentary proof with regard to income of the deceased, payment of remuneration to the extent of Rs.16,000/- per month to the deceased as manager in the petrol pump of his brother cannot be conceived of. However, at the same time the employment on the part of the deceased in the petrol pump cannot be denied completely only for the reason that he was physically challenged. So, taking a balanced approach and keeping in view the date of accident as well as place of employment, a sum of Rs.10,000/-

is assessed as monthly income of the deceased, by guess work. Adding 40% thereto towards future prospect and deducting 1/3rd towards personal expenses, the annual loss of dependency comes to Rs.1,12,000/-. Accordingly total loss of dependency becomes Rs.16,80,000/-. Adding further Rs.80,000/- towards consortium to the widow and minor son and Rs.30,000/- towards loss of estate and funeral expenses, the final compensation amount is determined at Rs.17,90,000/-, payable along with interest @ 6% per annum.

8. In the result the appeal is disposed of with a direction to the insurer - Appellant to deposit an enhanced compensation of Rs.17,90,000/- (seventeen lakhs ninety thousand) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 27th December, 2017, 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 appellant - insurer before this court along with accrued interest thereof be refunded 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