Orissa High Court
New India Assurance Co. Ltd vs Sanjib Kumar Sahu & Ors on 17 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No. 416 of 2020
New India Assurance Co. Ltd. .... Appellant
Mr. N.S. Ghose, Advocate
-versus-
Sanjib Kumar Sahu & Ors. .... Respondents
Mr. K. Panigrahi, Advocate for Respondent Nos. 2 & 3
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
17.01.2023
Order No.
05. 1. The matter is taken up through hybrid mode.
2. Heard Mr. Ghose, learned counsel for the Appellant and Mr.
Panigrahi, learned counsel for the claimant-Respondents.
3. The present appeal by the Claimants is directed against the
judgment dated 17th December, 2019 of the District Judge-cum 1st
MACT, Angul, in M.A.C. Case No.211 of 2017, wherein
compensation to the tune of Rs.9,37,200/- has been granted along with
interest @7% per annum with effect from the date of filing of the
claim application on account of the death of the deceased in the motor
vehicular accident on 21st December, 2016.
4. The impugned award is challenged by the Insurance company
mainly on the ground that, first, the deceased has contributed
negligence for the cause of accident and secondly, the income of the
deceased has been fixed at the higher side.
5. A cross objection has been raised by the claimants to enhance
the compensation amount on the ground that the notional income of
the deceased should not be less than the rate of minimum wages
prevalent.
6. The facts of the case are that the deceased while going to
Bhubaneswar in a motor-cycle stopped for urination on road side and
at that time the offending motor-cycle i.e. Bajaj Pulsar motor-cycle
bearing registration No. OD-16-B-3782 dashed against him being
driven in rash and negligent manner. P.W.2 is the eye witness of the
occurrence. He has stated same during his examination attributing
entire negligence on the driver of offending motor-cycle. No evidence
has been laid from the side of insurance company nor could anything
be brought in cross-examination of said P.W.2 in rebuttal. Further, the
police upon completion of investigation have submitted the charge
sheet against the rider of the offending motor-cycle for commission of
offence under Sections 279/337/338/304-A IPC. Therefore, no point is
seen in the contention of the Appellant to share negligence on any
other person than the rider of the offending motor-cycle.
7. For determining the compensation amount, the Tribunal has
taken notional income of the decease at Rs.6,000/- per month. The
deceased is a student of +2 Commerce aged about 19 years on the date
of accident the Tribunal has accordingly determined his notional
income and deducted 50% towards personal expenses after addition of
future prospect. It is true that on 21.12.2016, i.e. the date of accident
the prevalent rate of minimum wages was Rs.207/- per day for
unskilled labour. But when the notional income is taken in respect of
the student, the applicability of minimum wage rate cannot be a
consideration. It needs to be mentioned here that while considering
notional income of a non-earning person like a student, his
educational qualification, prospects for future employment, his social
economic background as well as his dependants are relevant factors.
In the case at hand, the deceased as well as the claimants are residents
of village Bandhapali in the district of Sundargarh and the accident
took place under Bantapal P.S. in the district of Angul. The claimants,
who are the parents of the deceased have not stated about their socio-
economic status and the evidence of P.W.1, the mother of the
deceased is completely silent on the same. However, it is understood
that the family belongs to lower income group. It is also noticed that
the father of the deceased (claimant No.1) died during the pendency of
the claim application.
8. So considering all such aspects and socio-economic
background of the deceased as well as his place of residence, his
educational qualification and the date of accident etc, the
assessment of the Tribunal to determine the notional income at
Rs.6,000/- is found justified and no need is there to interfere with
the same.
9. It is further seen that the Tribunal did not grant any filial
consortium to the mother while awarding compensation amount.
Accordingly, an additional sum of Rs.40,000/- is liable to be added
in the compensation amount. Further the rate of interest is reduced
to 6% against 7% as directed by the Tribunal.
10. In the result, the compensation amount is enhanced to
Rs.9,77,200/- and the Insurer-Appellant is directed to deposit the same
along with interest @ 6% per annum before the Tribunal 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.
11. The statutory deposit made by the Appellant 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.
12. Copy of the deposition of P.W.1 & 2 as produced in course of
hearing are kept on record.
13. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
Sangram Das
