Orissa High Court
Pravashini Nayak And Others vs R.S.Rubber Industries And ... on 8 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.200 of 2020 & MACA No.530 of 2020
MACA No.200 of 2020
Pravashini Nayak and others .... Appellants
Mr.P.K.Mishra, Advocate
-versus-
R.S.Rubber Industries and another .... Respondents
Mr.P.K.Mahali, Advocate for Respondent No.2
AND
MACA No.530 of 2020
Oriental Insurance Co. Ltd. .... Appellant
Mr.P.K.Mahali, Advocate
-versus-
Pravashini Nayak and others .... Respondents
Mr.P.K.Mishra, Advocate for Respondent No.1-3
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
8.8.2023
Order No.
05. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Mishra, learned counsel for the claimants
and Mr.Mahali, learned counsel for the Insurer.
3. Both the appeals being arise out of the same judgment
dated 5th November, 2019 passed by the learned 3rd M.A.C.T.,
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL Bhubaneswar in M.A.C. No.199/147 of 2017, wherein
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
compensation to tune of Rs.14,17,942/- along with interest @6%
per annum has been granted from the date of filing of the claim
application on account of death of the deceased in the motor
vehicular accident dated 15th April, 2017, are heard together and
disposed of by this common order.
4. MACA No.200 of 2020 has been filed by the claimants
praying for enhancement of the compensation amount. Mr.Mishra
submits that the deceased was an Auto rickshaw driver and also
doing housekeeping job. Therefore, his income needs to be
calculated at a higher amount of Rs.15,000/-, instead of
Rs.7,522/-. He further submits that claimant No.2, the minor
daughter of the deceased is entitled for parental consortium,
which was not granted by the Tribunal.
5. On the other hand, MACA No.530 of 2020 has been
filed by the Insurer challenging the impugned judgment. Mr.
Mahali submits that the claim application is not maintainable
before the Tribunal under the provisions of M.V. Act since
service of the deceased is covered under the provision of E.S.I.
Act. He further submits that the deceased himself had contributed
negligence for the accident, who was driving a motorcycle at the
time of accident.
6. First dealing with the contention raised by Mr. Mahali
regarding maintainability of the claim application, it is seen from
the record that no such pleading is there regarding applicability of
Signature Not Verified
the provisions of ESI Act nor anything has been produced on
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary record to reveal the employment of deceased as an 'insured
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 09-Aug-2023 17:48:49 person' within thin definition of Section 2(14) of the E.S.I. Act. It
was never the case of Insurer that the claim application under
Section 166 of the M.V.Act is not maintainable at the instance of
the claimants and it was never pleaded by the Insurer before the
Tribunal that the deceased being an employee as a house keeper
in M/s Adecco India Ltd. was covered under the provisions of
E.S.I. Act as an 'insured person'. It was also not pleaded at any
point of time that the claimants have received any benefit under
the provisions of ESI Act for such death of the deceased in the
motor vehicular accident. Therefore, such stance taken at this
stage before this Court is not entertained and rejected.
7. So far as the challenge regarding contributory
negligence on the part of the deceased is concerned, the same is
also found without merit. The police after completion of
investigation has submitted the charge-sheet against the driver of
the offending truck bearing Registration No.OR-02-AU-2497 for
commission of offence under Section 279/337/338/304-A of the
I.P.C. The insurer has not adduced any evidence before the
Tribunal. Therefore, all such contentions raised by Mr.Mahali to
contribute the negligence on the part of the deceased are rejected.
8. The claimants have prayed for enhancement of the
compensation amount by raising the income of the deceased. It is
the consistent case of the claimants that the deceased besides his
service as a house keeper, had the license to driver an Auto
rickshaw and he, by said avocation, was earning Rs.7,500/- per
month. But the Tribunal has completely ignored this fact. It is
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
true that no document with regard to income from Auto rickshaw
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
driving has been produced by the claimants. But the three wheeler
driving license of the deceased has been produced under Ext.10.
The deceased was a resident of Bhubaneswar city and in the
circumstances, such contention of the claimants regarding his
extra income by driving private auto rickshaw at the spare time
out of his job as a house keeper cannot be completely ruled out,
particularly when he had the DL for three-wheeler. In the present
days where maintaining a family in Bhubaneswar city is quite
expensive, the contentions about extra income from Auto-rikshaw
driving thus cannot be completely discarded. Therefore such
contentions raised on behalf of the claimants to add further
income is found legitimate. Taking note of the same and the
evidences produced on record, this Court is inclined to raise the
income of the deceased to Rs.10,000/- per month. Accordingly,
the compensation amount needs to be recomputed.
9. The deceased was aged about 31 years on the date of
accident. Adding future prospectus to the extent of 40% with
deduction of 1/3rd towards personal expenses, the loss of
dependency comes to Rs.17,92,000/-. Adding Rs.40,000/- each to
the minor daughter and widow towards loss of consortium and
Rs.30,000/- towards loss of estate and funeral expenses, the
compensation amount is determined at Rs.19,02,000/-, payable
along with interest @6% per annum.
10. In the result, both the appeals are disposed with a
direction to the Insurer to deposit a sum of Rs.19,02,000/-
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
(Nineteen lakhs two thousand) along with interest @6% per
Designation: Secretary
Reason: Authentication annum before the Tribunal from the date of filing of the claim
Location: Orissa High Court, Cuttack
Date: 09-Aug-2023 17:48:49
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. The
direction for payment of penal interest @8% per annum is
waived.
11. Copies of evidences and exhibits produced by Mr.
Mishra in course of hearing are kept on record.
12. The statutory deposit made by the Appellant in MACA
No.530 of 2020 along 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
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
