Orissa High Court
The Divisional Manager vs Sitaram Panda And Others on 9 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.526 of 2017
The Divisional Manager, the Oriental
Insurance Company Ltd. .... Appellant
Mr. G.P. Dutta, Advocate
-versus-
Sitaram Panda and Others .... Respondents
Mr. B. Singh, counsel for Respondents 1-4
Mr. S. Satpathy, counsel for Respondent No.7
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
9.2.2023
Order No.
13. 1. The matter is taken up through hybrid mode.
2. Heard Mr. G.P. Dutta, learned counsel for the Appellant -
Oriental Insurance Co. Ltd., Mr. B. Singh, learned counsel for
claimant - Respondents 1 to 4 and Mr. S. Satpathy, learned counsel
for Respondent No.7 - Reliance General Insurance Co. Ltd.
3. Present appeal by the Oriental Insurance Co. Ltd. is directed
against impugned judgment dated 20th December, 2016 of learned 3rd
MACT, Bhadrak passed in MAC No.158 of 2010, wherein
compensation to the tune of Rs.16,79,000/- along with interest @ 7%
per annum form the date of filing of the claim application, i.e. 27th
December, 2010 has been granted on account of death of deceased
Manash Ranjan Panda in the motor vehicular accident dated 16th
December, 2009.
4. Mr. Dutta, learned counsel submits that the Appellant is the
insurer of the truck bearing registration number OR 08B 1107 and the
accident was the result of negligence on the part of the drivers of the
truck as well as the Scorpio vehicle bearing registration number OR
02 AV 9437. He further submits that the police submitted charge-
sheet against drivers of both the vehicles, but the tribunal ignoring the
same attributed entire negligence on the driver of the truck.
5. The deceased was an occupant of the Scorpio vehicle and the
accident was the result of front collision between two vehicles. Three
witnesses have been examined from the side of the claimants and
none of them appear to be eye witness of the accident. In this regard,
though it is seen that P.W.2 was another occupant of the same Scorpio
vehicle, but it is admitted by him during cross-examination that he has
not seen the incident which happened in the early morning. In these
circumstances, as submitted by Mr. Dutta, the police investigation
report with regard to negligence of particular driver plays essential
role. According to the police investigation report dated 4th April,
2011, as produced by Mr. Dutta in course of hearing, the drivers of
both the vehicles were rash and negligent for causing the accident
reveals that, according to the opinion of the police investigating
officer. Since the driver of the Scorpio died, the charge-sheet for
criminal prosecution under Section 279/337/338/304-A of I.P.C. was
submitted against the driver of the truck only. Neither P.W.1 nor
P.W.3 were present at the spot. According to P.W.2, despite he being
an occupant of the Scorpio did not see the accident. The circumstance
that the accident took place due to front collision on the highway in
the early morning hour as described in the police investigation report
are found enough to contribute negligence equally on the drivers of
both the vehicles. Therefore, the exemption of Respondent No.7 -
Reliance General Insurance Co. Ltd., who is the insurer of the Scorpio
vehicle, from liability is improper. It is held that the negligence is
contributory on the part of drivers of both the vehicles on equal
proportion and thus both the insurers are liable to indemnify the
compensation amount on equal proportion also. It is emphasized here
that according to Mr. Satapathy, the validity of the insurance policy in
respect of the Scorpio vehicle is not disputed.
6. With regard to quantification of compensation amount the
tribunal has fixed the income of the deceased at Rs.10,000/- per
month based on the evidence of the witnesses that the deceased was
working in two establishments, namely NICET and First Computer.
As per the claimants the deceased was getting Rs.7000/- from NICET
by serving as an Office Coordinator and further getting Rs.3000/-
from First Computer towards remuneration by serving as Data
Operator. The claim regarding employment of the deceased in two
establishments simultaneously cannot be accepted as a valid one and
therefore, what is counted towards his remuneration as Data Operator
in First Computer is liable to be kept out from count. The income of
the deceased is accordingly fixed at Rs.7000/- per month, which the
deceased was getting from NICET as per claimants. Adding future
prospects to the extent of 50% thereon with deduction of 50% towards
personal expenses, the annual loss of dependency comes to
Rs.63,000/-. The total loss of dependency thus comes to
Rs.10,71,000/- by applying multiplier '17'. Adding parental
consortium of Rs.50,000/-, keeping the date of accident in view, i.e.
16th December, 2009 and adding Rs.30,000/- towards general
damages, it comes to Rs.11,51,000/-. The claimants are found entitled
to further amount of Rs.1,14,000/- as granted by the tribunal towards
treatment expenses of the deceased. Thus, the final amount of
compensation is determined at Rs.12,65,000/-, payable along with
interest @ 6% per annum. As stated earlier both the insurance
companies are to share the same equally.
7. In the result the appeal is disposed of with a direction to both
the Appellant and Respondent No.7, i.e. Oriental Insurance Co. Ltd.
and Reliance General Insurance Co. Ltd. to deposit their respective
shares to the tune of Rs.6,32,500/- (six lakhs thirty-two thousand five
hundred) each before the tribunal along with interest @ 6% per annum
respectively from the date of filing of the claim application, i.e. 27th
December 2010, within a period of two months from today; where-
after the same shall be disbursed in favour of the claimant -
Respondents 1 to 4 on such terms and proportion to be fixed by
learned tribunal.
8. The statutory deposit made by the Appellant - Oriental
Insurance Co. Ltd. before this court along with accrued interest be
refunded to the insurer on proper application and on production of
proof of deposit before the tribunal.
9. The copies of depositions and final form as produced in course
of hearing are kept on record.
10. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
