Orissa High Court
Surya [email protected] And Another vs Birendra Kumar Panda And Another on 22 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.777 of 2017
Surya [email protected] and another .... Appellants
Mr.P.K.Mishra, Advocate
-versus-
Birendra Kumar Panda and another .... Respondents
Mr.A.A.Khan, Advocate for Respondent No.2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
22.2.2023
Order No.
4. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Mishra, learned counsel for the claimants-
Appellants and Mr.Khan, learned counsel for the Insurer-
Respondent No.2
3. Present appeal by the claimants is directed against the
judgment dated 19th June, 2017 of the Member, 2nd MACT (SD),
Berhampur, in M.A.C. Case No.137 of 2015 (287/2014-GDC),
wherein compensation to the tune of Rs.1,20,000/- has been
granted along with interest @9% per annum with effect from the
date of filing of the claim application on account of death of the
deceased in the motor vehicular accident on 21st November, 2014.
4. As per the claimants, the deceased namely Nayakani
Das died while travelling as a labourer in the offending vehicle
i.e. Tractor and Trolley bearing Registration No. OR-07-X-9693
and OR-07-X-9694. But the Tribunal disbelieved the claimants
and treated the deceased as a gratuitous passenger of the
offending vehicle and thus exonerated the Insurance Company
from indemnifying the liability.
5. Perusal of evidence of P.W.1 & 2, examined by the
claimants, reveals that they have consistently stated regarding
status of the deceased as a labourer of the offending vehicle at the
time of accident. The offending vehicle was loaded with metal
chips at the time of accident. This part of evidence of P.W.1 & 2
has not been sufficiently rebutted by the Insurance Company. The
evidence of only witness examined from the side of the insurer,
who is an Officer of the Insurance Company, is mostly relating to
validity of the insurance policy and its coverage. It is seen from
the copies of the police papers like FIR, final report etc, as are
relied on, that the same do speak in favour of the claimants
suggesting the deceased as a labourer. Therefore, the reasoning
given by the Tribunal not to treat the deceased as a labourer but
as a gratuitous passenger is not found justified. The same is
accordingly set aside and it is concluded that the deceased was
traveling as a labourer in the offending vehicle at the time of
accident.
6. Admittedly, the offending vehicle is a commercial
vehicle and as such the coverage of insurance policy in respect of
a labourer of the vehicle is confirmed.
7. It is seen that the Tribunal without computing the
compensation as per settled procedure has granted Rs.1,20,000/-
only towards loss of love and affection and funeral expenses.
This approach of the Tribunal is disapproved by this Court.
Accordingly, a fresh computation is required to be done.
8. So far as the age of the deceased is concerned, in view
of her age recorded in the post-mortem report and as per the
statements made by P.W.1 & 2 during their oral evidence, she is
found aged about 18 to 20 years at the time of accident. But
Mr.Khan, learned counsel for the Insurance Company submits
that as per copy of the Adhar Card marked under Ext.K, her date
of birth is 20th August, 2000 and so, on the date of accident i.e. on
21st November, 2014 she was just above 14 years. It is true that
the copy of Adhar Card under Ext.K is disclosing her age
between 14 to 15 years. Nevertheless, this has hardly any impact
on the income of the deceased since it is established in evidence
that she was working as a labourer in the offending vehicle at the
time of accident. Therefore, even if the age of the deceased is
treated as 14 to 15 years then also her status as a labourer of the
offending vehicle cannot be discarded out in view of clear and
unrebutted evidences adduced from the side of the claimants. In
such situation it would be appropriate to apply multiplier 18
prescribed for a person having definite income as per the
principles decided in the case of National Insurance Company
Ltd. vrs. Pranay Sethi and others, (2017)16 SCC 680. As
discussed above, since the deceased is accepted as a labourer of
the offending vehicle, her monthly income at the prevalent rate of
minimum wages is fixed at Rs.4,500/-. This aspect is not disputed
at the Bar. Applying multiplier 18 and deducting 50% towards
personal expenses, the total loss of dependency is assessed at
Rs.6,80,000/- including future prospects to the extent of 40%.
Adding Rs.70,000/- towards general damages, the total
compensation amount is determined at Rs.7,50,000/- (Seven
lakhs fifty thousand).
10. In the result, the appeal is disposed of with a direction
to the Insurer-Respondent No.2 to deposit the entire
compensation amount of Rs.7,50,000/- (Seven lakhs fifty
thousand) along with interest @6% per annum from the date of
filing of the claim application within a period of two months from
today, which shall be disbursed in favour of the claimants on such
terms and proportion to be fixed by the Tribunal.
11. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
