The New India Assurance Co. Ltd vs Seema Agrawal And Others
2023 Latest Caselaw 1822 Ori

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                       MACA No.1020 of 2018

(From the judgment dated 7th August, 2018 passed by the learned
M.A.C.T.(III), Titilagarh in M.A.C. Case No.02/2011)

 The New India Assurance Co. Ltd.         ....                    Appellant
                                       -versus-
 Seema Agrawal and others                 ....              Respondents

Advocate(s) appeared in this case:-

          For Appellant           : Mr. S.K. Ghose, Advocate

          For Respondents         : Mr.P.K. Nayak, Advocate
                                    For Respondent Nos.1 to 4

                                    Mr. G.P. Dutta, Advocate
                                    For Respondent No.7

            CORAM: JUSTICE B.P. ROUTRAY
                            JUDGMENT

th 28 February, 2023

B.P. Routray, J.

1. Present appeal by the insurer, i.e. New India Assurance Co. Ltd. is directed against judgment dated 7th August, 2018 passed by the learned M.A.C.T.(III), Titilagarh in M.A.C. Case No.02/2011, wherein compensation to the tune of Rs.27,80,000/- has been granted along with interest @8% per annum to the claimants from the date of filing of the claim application, i.e. 01.02.2011 on account of death of the deceased, namely, Shibasankar Agrawal in the motor vehicular accident dated 26.04.2010.

2. The facts of the case are that the present deceased along with four other persons were going in a Bolero bearing Registration No.CG- 13-C-5460 on 26.4.2010. Near Kesinga, the offending truck bearing Registration No.OR-01-P-3736 dashed it from the front coming in a rash and negligent manner with high speed.

3. In the accident, four persons including the present deceased died. In respect of two other deceased, namely, Sagarmal Agrawal and Mohanlal Agrawal, two separate claim applications were filed. The present claimants are the dependants of the deceased Shibasankar Agrawal. All the three claim applications were disposed of in the year 2012 and against them three appeals were filed before this Court by the Insurance Company. In respect of the claim applications filed for death of Mohanlal Agrawal and Sagarmal Agrawal, MACA No.782/2012 and MACA No.783/2012 were preferred wherein the direction of learned Tribunal for payment of compensation amount was confirmed by this Court with rejection of the grounds of challenge taken by present Insurance Company including the ground that the entire negligence of accident is on the driver of the offending truck. Admittedly no further challenge was preferred against the order of this Court passed in MACA No.782/2012 and MACA No.783/2012. In other words, said orders of this Court dated 09.11.2015 have attained finality.

4. In respect of the appeal filed by present Insurance Company for death of Shibasankar Agrawal, i.e. MACA No.503 of 2012, this Court by order dated 28.11.2017 has remanded back the matter to learned

Tribunal for fresh adjudication after providing opportunity of hearing to the parties including opportunity to adduce further evidence. Thereafter learned Tribunal decided the case afresh and allowed the claim application by directing payment of compensation, which is impugned in the present judgment.

5. Mr. Ghose, learned counsel for the Appellant-insurer submits that earlier the Tribunal had directed for payment of compensation of Rs.8,62,000/- with 7% interest per annum and in the present impugned order it has directed for such a huge amount of compensation mainly relying upon the income tax returns filed in the year 2011, i.e. much after the accident. As such, Mr. Ghose prays for reduction of the compensation amount.

6. On the other hand, the claimants have filed their cross objection challenging contribution of negligence to the extent of 50% on the driver of the Bolero vehicle in which the deceased was an occupant. According to Mr. Nayak, learned counsel for the Respondent Nos.1 to 4 -claimants, this Court has confirmed the finding of the learned Tribunal about attribution of 100% negligence on the driver of the truck in other two claim applications and therefore, learned Tribunal now cannot deviate from its earlier finding to share 50% on the driver of the Bolero vehicle.

It is further submitted that claimant - Respondent No.3, namely Satyanarayan Agarwal died during pendency of the appeal on 11th December, 2020 and all other LRs being already on record, no further substitution is required. Accordingly the name of claimant - Respondent No.3 is deleted.

7. It needs to be mentioned here that, the Bolero vehicle involved in the accident was not validly insured on the date of accident. The learned Tribunal while sharing negligence on the driver of the Bolero vehicle has directed the owner-Respondent No.6 to pay 50% of the compensation amount. The present Appellant, the insurer of the offending truck has been directed to pay rest 50% of compensation amount.

8. First coming to the challenge with regard to negligence aspect, it remains undisputed that learned Tribunal in other two claim applications has fixed 100% negligence on the driver of the truck and the same have already attained finality.

9. Here in the present case, since the accident was the result of head on collision between both the vehicles and there was damage to both the vehicles, the learned Tribunal shared negligence between both the drivers equally and resultantly directed for payment of 50% of compensation amount by the owner of Bolero vehicle.

10. This Court disagrees with the reasons stated by learned Tribunal to justify his conclusion on this aspect under Issue No.2. It is for the reason that, admittedly, P.W.2 - the eye-witness examined on behalf of the claimants has stated that the driver of the truck is entirely negligent for causing the accident and the insurance company has not adduced any evidence to the contrary. But the Tribunal by relying on the opinion of the I.O. recorded in the charge-sheet has concluded about negligence on the part of driver of the Bolero. Further, the circumstances like damage to the Bolero vehicle do not per se satisfy

that its driver has contributed negligence towards the accident. No witness has been examined from the side of the Insurance Company and it has only adduced the copies of registration certificate and driving license in respect of the Bolero vehicle and its driver only. Therefore, the direct evidence adduced through P.W.2 shall prevail over. So in the opinion of this Court, entire negligence should be saddled on the driver of the truck in confirmative with the finding of this Court in two earlier appeals.

11. So far as the contention of the insurer to question the income of the deceased based on acceptability of IT returns filed after the accident is concerned, it needs to be stated here that those IT returns for the Assessment Years 2009-10 and 2010-11 are depending on Form 16-A granted by the Executive Engineer, RWD, Padampur, Bargarh as well as Minor Irrigation Division, Regulated Market Committee and Zila Swasthya Samiti, Bargarh. All these authorities, viz. Executive Engineer of Minor Irrigation Division, Regulated Market Committee and Zila Swasthya Samiti are Government Bodies and the deceased undisputedly was a civil contractor and he received such amount of bills from those Government authorities. All such bills issued by those authorities having status of public documents, which are foundational facts for submission of IT returns under Ext.12, 13 and 14, there cannot be any doubt raised on the genuineness of the incomes shown. Therefore, the date of filing of IT returns, even after death of the deceased, would be immaterial to doubt the genuineness of Ext.12, 13 & 14. The learned Tribunal has thus approached rightly in completely believing those documents for calculating the income of the deceased.

Further, those bill amounts released in favour of the deceased makes the total to Rs.52,00,000/- (nearly), the learned Tribunal has taken 10% of the same as the profit amount gained by the deceased as a civil contractor. Therefore, I do not find any reason to fault such reasoning of learned Tribunal to reduce the income amount of the deceased. However, learned Tribunal has committed mistake in deducting 1/3 rd towards personal expenses instead of 1/4 th, since the number of dependants are four in the present case.

12. However, future prospects to the extent of 40% is liable to be added to the income of the deceased since the deceased was aged about 33 years on the date of accident having date of birth on 10.7.1977.

13. Learned Tribunal has declined to grant future prospects on the ground that the deceased is an undefined Class-1 contractor. This approach is not found correct. The Supreme Court in the case of Kirti and another vs. Oriental Insurance Company Ltd., (2021) 2 SCC 166 have observed in favour of granting future prospect on notional income also.

14. Thus adding future prospects to the extent of 40% and deducting 1/4th towards personal expenses, the annual loss of dependency comes to Rs.5,46,000/- and total loss of dependency comes to Rs.87,36,000/-. Adding Rs.1,00,000/- towards loss of consortium to the widow and two children and general damages of Rs.30,000/-, the total compensation is determined at Rs.88,66,000/- payable along with interest @6% per annum. However, the penal interest @12% as directed by learned Tribunal is waived.

15. In the result, the appeal is disposed of with a direction to the Appellant-New India Assurance Co. Ltd. to deposit the compensation amount of Rs.88,66,000/- along with interest @6% per annum from the date of filing of the claim application before learned Tribunal within a period of two months from today; where-after the same shall be disbursed in favour of the claimants - Respondent No.1, 2 and 4 on such terms and proportion to be decided by the learned Tribunal.

16. On deposit of the award amount before the learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company.

(B.P. Routray) Judge

B.K. Barik/Secretary