Orissa High Court
Oriental Insurance Co. Ltd vs Rupnarayan Agrawal And Others on 6 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.674 of 2011, MACA No.657 of 2011
&
MACA No.121 of 2012
In MACA No.674 of 2011
Oriental Insurance Co. Ltd. .... Appellant
Mr. S.K. Swain, Advocate
-versus-
Rupnarayan Agrawal and others .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.3
Mr. P.N. Mishra, Advocate for Respondent Nos.4 to 6
In MACA No.657 of 2011
Sairendra Babu and others .... Appellants
Mr. P.N. Mishra, Advocate
-versus-
Rupnarayan Agrawal and others .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.3
Mr. S.K. Swain, Advocate for Respondent No.4
In MACA No.121 of 2012
ICICI Lombard General Insurance Co. .... Appellant
Ltd.
Mr. A.A. Khan, Advocate
-versus-
Sarirendri Babua and others .... Respondents
Mr. P.N. Mishra, Advocate for Respondent Nos.1 to 4
Mr. S.K. Swain, Advocate for Respondent No.7
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
06.02.2023
Order No.
MACA Nos.674, 657 of 2011 & MACA No.121 of 2012
16. 1. Heard Mr. S.K. Swain, learned counsel for the Oriental
Insurance Co. Ltd., Mr. A.A. Khan, learned counsel for the ICICI
Lombard General Insurance Co. Ltd. and Mr. P.N. Mishra,
learned counsel for the claimants.
2. All the appeals being arise out of the same judgment dated
13.07.2011 of learned 2nd MACT, N.D., Sambalpur in M.A.C.
Case No.48 of 2009 (S.B.P.), wherein compensation to the tune
of Rs.11,00,000/- has been granted along with interest @6% per
annum to the claimants from the date of filing of the claim
application, i.e. 08.04.2009 on account of death of the deceased in
a motor vehicular accident dated 28.02.2009, are heard together
and disposed of by this common order.
3. The learned Tribunal while granting compensation has
directed to share the compensation amount between the Oriental
Insurance Co. Ltd. and ICICI Lombard General Insurance Co.
Ltd. in the ratio of 60:40.
4. MACA No.674 of 2011 has been filed by Oriental Insurance
Co. Ltd. and MACA No.121 of 2012 has been filed by ICICI
Lombard General Insurance Co. Ltd. Both these insurance
companies have questioned attribution of negligence on their part
respectively. MACA No.657 of 2011 has been filed by the
claimants praying for enhancement of the compensation amount
mainly on the ground of non-addition of future prospects to the
income of the deceased and undue reduction of his income by
learned Tribunal.
5. The facts of the case reveal that the deceased was the
passenger of Chakadola Bus bearing Registration No.OR-15-G-
3344, insured with ICICI Lombard General Insurance Co. Ltd.,
coming from Bargarh towards Sambalpur. The offending Tanker
bearing Registration No.OR-15-B-0181, insured with Oriental
Insurance Co. Ltd., was coming from the opposite direction, i.e.
from Sambalpur towards Bargarh. On N.H.6 near A-Katapali
chowk the right side of the Tanker towards rear violently rubbed
with rear right side of the Bus in which the deceased was the
passenger. As a result of the accident, the deceased died.
6. According to Mr. Swain, learned counsel for the Oriental
Insurance Company Ltd., the negligence between the offending
Bus and Tanker should be on equal proportion. As per Mr. Khan,
learned counsel for ICICI Lombard General Insurance Co. Ltd.,
the entire negligence should be on the part of the Tanker since the
driver of the Bus was not at fault.
7. It is seen that the Police upon completion of investigation has
submitted the charge-sheet against the driver of the Tanker
absolving the driver of the Bus from negligence. But learned
Tribunal held partial negligence, to the extent of 40%, on the part
of the driver of the Bus based on the evidence of P.W.2, the eye-
witness and the circumstances at the spot. Mr. Khan mostly relies
on the opinion of the Investigating Officer given in the Police
investigation report.
8. Upon perusal of the evidence of P.W.2, the eye-witness, as
well as copy of the crime detail form demonstrating the spot map,
as produced by Mr. Mishra in course of hearing, this Court agrees
with the conclusion arrived at by learned Tribunal. As seen from
the evidence of P.W.2, the Bus as well as the Tanker were driven
negligently at the spot of accident. P.W.2 has categorically stated
that both the vehicles were at fault and rubbed each other without
leaving sufficient space between them while crossing and it is the
main cause of accident. When the status of P.W.2 as an eye-
witness is not disputed by either party, his evidence prevails upon
the opinion of the Investigating Officer, who is not an eye-
witness. Therefore, the negligence as attributed between the
drivers of the Bus and the Tanker in the ratio of 40:60 is justified
and the same is confirmed. Accordingly, no merit is seen in the
appeals filed by both the insurance companies.
9. So far as the appeal filed by the claimants is concerned, they
are found entitled for higher amount since it is apparent on the
reasoning given by the learned Tribunal that the monthly income
of Rs.19,252/- of the deceased per month has been reduced to
Rs.15,000/- on the ground that he was to retire from service on
superannuation after one year and two months from the date of
accident. This reasoning as cited by the learned Tribunal is
untenable. Thus, by deducting Rs.200/- towards professional tax,
the income of the deceased, who was a Government servant
serving as a Clerk in the Block Office, is fixed at Rs.19,052/- per
month. It is further seen that learned Tribunal did neither add any
future prospect to the income of the deceased nor awarded
adequate amount towards loss of consortium and general
damages. Accordingly, assessing the income of the deceased at
Rs.19,052/- per month and adding future prospects to the extent
of 15% thereon along with grant of Rs.40,000/- towards
consortium to the widow and two children and Rs.30,000/-
further towards conventional heads, a total compensation of
Rs.17,00,000/- is granted in favour of the claimants. It needs to be
mentioned here that Claimant No.4, namely, Ashsis Kumar Babu,
the son of the deceased, died on 25.6.2020 and accordingly his
name has been deleted by order dated 24.12.2021 of this Court.
10. In the result, all the appeals are disposed of with a direction to
the insurance companies, i.e. Oriental Insurance Company
Limited and ICICI Lombard General Insurance Co. Ltd. to pay
the entire compensation amount of Rs.17,00,000/- (rupees
seventeen lakhs) along with interest @6% per annum from the
date of filing of the claim application, i.e. 08.04.2009 in the ratio
of 60:40, i.e.,60% by Oriental Insurance Co. Ltd. and 40% by
ICICI Lombard General Insurance Co. Ltd. within a period of two
months from today; where-after the same shall be disbursed in
favour of the Claimant Nos.1 to 3, namely, Sarirendri Babu,
Amrita Babu and Nandita Babu on such terms and proportions to
be fixed by the learned Tribunal.
11. On deposit of the award amount by the insurance companies
before the Tribunal and filing of receipt evidencing the deposits
with refund applications before this Court, the statutory deposit
made in MACA No.674 of 2011 and MACA No.121 of 2012
before this Court with accrued interest thereon shall be refunded
to the respective insurance companies.
12. The copies of evidence and crime detail form as produced by
Mr. P.N. Mishra, learned counsel for the claimants in course of
hearing are kept on record.
13. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
