The Manager Claims vs Mirza Alim Beg And Others
2023 Latest Caselaw 4424 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

         MACA No.814 of 2018 & MACA No.405 of 2018


(From the judgment dated 24th January, 2018 passed by learned 3rd
M.A.C.T., Bhubaneswar in M.A.C. No.44/19 of 2012)

In MACA No.814 of 2018
The Manager Claims, Oriental            ....               Appellant
Insurance Company Limited
                                      -versus-
Mirza Alim Beg and others               ....            Respondents


Advocate(s) appeared in this case:-

          For Appellant         : Mr. A.A. Khan, Advocate

          For Respondents       : Mr. P.K. Mishra, Advocate
                                  For Respondent Nos.1 to 6



In MACA No.405 of 2018
Mirza Alim Beg and others                ....             Appellants
                                      -versus-
Pratap Kumar Swain and another          ....            Respondents


Advocate(s) appeared in this case:-
          For Appellants        : Mr. P.K. Mishra, Advocate

          For Respondents       : Mr. A.A. Khan, Advocate
                                  For Respondent No.2




MACA Nos.814 & 405 of 2018                             Page 1 of 9
             CORAM: JUSTICE B.P. ROUTRAY
                              JUDGMENT

26th April, 2023

B.P. Routray, J.

1. Heard Mr. A.A. Khan, learned counsel for the Insurance

Company and Mr. P.K. Mishra, learned counsel for the claimants.

2. Both the appeals being arise out of same impugned judgment

dated 24.01.2018 of learned 3rd MACT, Bhubaneswar in M.A.C. Case

No.44/19 of 2012, wherein compensation to the tune of Rs.9,88,500/-

has been granted along with interest @7% per annum to the claimants

from the date of filing of the claim application, i.e.05.03.2012 on

account of death of the deceased, namely, Mirza Wosim Beg in a

motor vehicular accident dated 21.01.2012, are heard together and

disposed of by this common order.

3. MACA No.814 of 2018 has been filed by the insurer challenging

the award and MACA No.405 of 2018 has been filed by the claimants

praying for enhancement of the compensation amount.

4. According to the insurer, the driver of the offending Truck

bearing Registration No.OR-04-G-7999 was not negligent for the

accident and thus the liability cannot be saddled on the insurance

company, i.e. Oriental Insurance Company Limited.

5. The facts of the case are that the deceased along with others was

travelling in a Scorpio vehicle bearing Registration No.OR-02-AK-

2997 and it dashed against the offending Truck from behind causing

death of two persons and injury to others. The accident took place on

National Highway No.5 between Bhadrak and Cuttack at Nalanga in

front of Mohapatra Dhaba. Four claim applications were filed in

respect of death of two persons and injury to two occupants. It is the

consistent case of all the claimants that the offending Truck after

overtaking the Scorpio applied sudden brake leaving no space for the

driver of Scorpio, which caused the accident. It is the rash and

negligent driving of the driver of the Truck that caused the accident.

The evidences of the injured eye-witnesses speak that the Truck

overtook the Scorpio and abruptly stopped in front of it causing the

accident. The FIR was lodged stating same facts and the Police upon

completion of investigation have submitted the charge-sheet against the

driver of the offending Truck under Sections 279/337/338/304-A,

I.P.C. to face criminal prosecution. On the contrary, the Motor Vehicle

Inspector (MVI) was examined from the side of the insurance company

as OPW-1, who said in his evidence that the driver of the Scorpio was

negligent for causing the accident since he did not find any skid mark

on the road to suggest application of brake by the Scorpio vehicle. This

part of evidence of the MVI is relied on by Mr. Khan to contend that

negligence on the part of the driver of the offending Truck is not

established. Further, Mr. Khan in support of his contention relies on the

case of Nishan Singh and others vs. Oriental Insurance Company

Ltd., (2018) 6 SCC 765. He also relies on order dated 24.1.2023 of this

Court passed in MACA No.1057 of 2017 to substantiate his contention

that when a vehicle dashed another vehicle from behind, entire

negligence is attributed on the part of the driver of the former vehicle.

6. In the instant case, the facts as stated above are to the effect that,

the accident took place on N.H.5 at about 2.00 a.m. (in the night). The

MVI visited the spot after three days of the occurrence and opined

about absence of any skid mark at the spot. The MVI has not stated any

other reason for arriving at his opinion that the driver of the Scorpio

was negligent, though he examined both the vehicles. Admittedly, the

MVI is not an eye-witness and his evidence is in the status of expert

evidence as per the provisions under Section 45 of the Indian Evidence

Act. On the other hand, the injured witnesses are direct eye-witnesses,

who have categorically stated about detail facts of the accident that

how the Truck abruptly stopped after overtaking the Scorpio. This part

of evidence of the eye-witnesses has not been rebutted sufficiently and

the accident took place in the mid of night on National Highway.

Therefore, keeping in view the circumstances of the accident, the

evidence of the eye-witnesses is found more credible than the opinion

of the MVI, who visited the spot after three days of the accident.

Furthermore, the Police investigation report also speaks in support of

the contention of the eye-witnesses regarding negligence on the part of

driver of the Truck. So the preponderance of probability is seen heavier

in favour of the contention of the claimants regarding negligence on

the part of the Truck driver.

7. The facts in the case of Nishan Singh (supra) is different from

the facts in the present case since the width of the road in that case is

only 14 ft. where it was unfathomable to conceive that the Truck

moved at high speed and overtook the Car. In the present case, it is

clear that road is sufficiently wide and the accident took place in the

night. So the decision of the Supreme Court in Nishan Singh's case

(supra) is distinguished. Further, the facts in the case decided in

MACA No.1057 of 2017, as relied on by Mr. Khan, is different from

the facts of the present case. In the said cited case, it was the contention

of the claimants that the Truck was immobile at the time of accident

and parked on the left side of the road where the other vehicle, i.e. the

Indica Car collided from behind. Therefore, facts of the said case being

different from the facts of the present case are not applicable here.

8. It is true that when two vehicles are moving on road in same

direction and the hind vehicle crashed to the backside of front vehicle,

normally the driver of front vehicle is not fastened with negligence.

But this proposition is always subject to exceptions. In the present

case, the insurance company has failed to rebut the evidence of direct

eye-witnesses in respect of negligence on the part of driver of the

Truck. In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd., (1995) 1

SCC 551, the Supreme Court has observed that, there has never been

any doubt that those who use highways are under a duty to be careful

and the legal position today is quite plain that any person using the

road as a motorist will be liable, if by his action he negligently causes

physical injury to anybody else. In the instant case, in view of the

peculiar facts stated above, negligence is attributed to the driver of the

Truck.

9. It is further contended by Mr. Khan that the driver of the

offending Truck against whom the charge-sheet has been submitted is

different from the driver named in the MVI report, who did not have

valid driving license and therefore, the insurer should be granted with

right of recovery against the owner. This contention of Mr. Khan is

found without merit in absence of any pleading to that effect before the

Tribunal. The same is accordingly rejected.

10. So far as the quantum of compensation is concerned, it is

submitted by Mr. Khan that in absence of material proof with regard to

income, the rate of minimum wages prevalent on the date of accident

should have been counted for the purpose of income. But the Tribunal

has taken the income of the deceased at Rs.6000/- per month against

the same. Conversely, it is submitted by Mr. Mishra, learned counsel

for the claimants that the income aspect of the deceased has been

brought on record through Ext.6, the certificate of income granted by

the concerned Sarpanch showing income of the deceased at

Rs.12,000/- per month as a four-wheeler mechanic, which was

disbelieved by learned Tribunal. On the backdrop of such rival

contentions regarding income of the deceased, I agree with the finding

of the learned Tribunal. It is for the reason that the certificate granted

by the Sarpanch to quantify the income at specific amount has no

authenticity in the eye of law. However, the statement of the widow

that the deceased was a four-wheeler mechanic cannot be discarded

and thus the assessment made by learned Tribunal to fix his income at

Rs.6000/- per month is confirmed. But as seen from the impugned

award, the Tribunal did not add any future prospect to the income of

the deceased on the ground that the deceased did not have any

established income. This reasoning of learned Tribunal is against the

principles decided in the cases of National Insurance Company Ltd.

vs. Pranay Sethi and others, (2017) 16 SCC 680, and Kirti and

another vs. Oriental Insurance Company Limited, (2021) 2 SCC 166.

The future prospect to the extent of 40% is thus liable to be added on

the income of the deceased. Further, two minor children of the

deceased are found entitled for grant of amount towards loss of

parental consortium. Adding all such amounts, the claimants are found

entitled to further enhanced amount of Rs.4,47,200/- thereby enhancing

the compensation amount to Rs.14,35,700/-, payable along with

interest @6% per annum.

11. In the result, both the appeals are disposed of with a direction to

the insurer i.e. Oriental Insurance Company Limited to deposit the

modified compensation amount of Rs.14,35,700/- (rupees fourteen

lakhs thirty-five thousand seven hundred) before the Tribunal along

with interest @6% per annum from the date of filing of the claim

application, i.e. 05.03.2012, 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, the

direction for payment of penal interest is waived.

12. On deposit of the award amount before learned Tribunal and

filing of a receipt evidencing the deposit with a refund application

before this Court, the statutory deposit made in MACA No.814 of 2018

before this Court with accrued interest thereon shall be refunded to the

Insurance Company.

13. Copies of the depositions and exhibits as produced in course of

hearing are kept on record.

(B.P. Routray) Judge

B.K. Barik/Secretary