Dharitri Rout & Ors vs Manoj Sharma And Ors
2023 Latest Caselaw 636 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    MACA No.541 of 2018

            Dharitri Rout & Ors.                         ....         Appellants
                                                     Mr. P.K. Mishra, Advocate

                                          -versus-

            Manoj Sharma and Ors.               ....       Respondents
                            Mr.N.B. Das, Advocate for Respondent No.3

                        CORAM:
                        JUSTICE B. P. ROUTRAY

                                        ORDER

19.01.2023 Order No.

07. 1. The matter is taken up through Hybrid mode.

2. Heard Mr. Mishra, learned counsel for the Appellant and Mr. Das, learned counsel for Insurer-Respondent No.3.

3. Present appeal by the Claimants is directed against the judgment dated 5th February, 2018 of the 3rd MACT, Balasore, in M.A.C. Case No. 14/343 of 2017/2013, wherein the Tribunal refused to grant any compensation by disbelieving the case of the Claimants regarding death of the deceased in the motor vehicular accident dated 15th May, 2011.

4. Mr. Mishra submits that though the independent witnesses viz. P.W.2 & 3 have categorically stated in the witness box about involvement of offending vehicle i.e. Indica car bearing registration No. OR-01-S-2344(D1-04CU-7561) in the accident, but the Tribunal disbelieved the same on the ground that the police have submitted the final report stating 'no clue'.

5. Upon hearing Mr. Das and perusal of the evidences of those witnesses Viz. P.W. 1, 2 & 3, the copies of which are

produced by Mr. Mishra in course of hearing, it reveals that their statement regarding involvement of offending vehicle in the accident is not sufficiently rebutted during their cross- examination by the insurance company. Further, no witness was examined from the side of the insurance company though the same police papers as relied on by the Claimants have been adduced from the side of the insurance company.

6. The Tribunal has framed four issues, which are regarding maintainability of claim application, death of the deceased in the motor vehicular accident, entitlement of the Claimants for compensation and the reliefs to be granted in the claim application, but in view of the answer of the Tribunal under Issue No.2 that the Claimants have failed to prove the death of the deceased in the motor vehicular accident involving offending vehicle, the other issues are not answered by the Tribunal.

7. As stated earlier, such witnesses including the eye witnesses in their evidences have stated about involvement of the offending vehicle and its registration number. Undisputedly, the protest petition was filed by the Claimant No.1 (widow) and the learned SDJM, Balasore has taken cognizance on the same against the accused driver namely, Suryakanta Behera for commission of offence under Sections 279/304A IPC. As per settled principles, the standard of proof required in claim application is not that strict as required in criminal cases but is based on the principles of preponderance of probabilities. In the present case at hand, the oral evidence adduced by the Claimants through those witnesses, particularly P.W.2 & 3, vis-à-vis the FIR and police investigation report etc including the cognizance order, the oral evidence, i.e. the direct evidence is certainly seen

heavier. It is thus established that, the offending vehicle, i.e. Indica car bearing registration No. OR-01-S-2344 (D1-04CU- 7561) is involved in the accident causing such injuries leading to death of deceased and as such, the driver of said offending vehicle is found negligent for the accident. Accordingly, the finding of the learned Tribunal under Issue No.2 is set aside and the claim application is held maintainable at the instance of the present Appellant-Claimants.

8. In respect of quantification of compensation amount and the reliefs concerned, considering the age of deceased as 38 years stated in the post-mortem examination report (Ext.3), multiplier 15 is found applicable. Regarding his income, the same is assessed at Rs.3,500/- considering the evidence adduced by the Claimants as well as the rate of minimum wages prevalent on the date of accident, i.e. on 15.05.2011. Further, adding future prospect to the extent of 40%, the total loss dependency is counted at Rs.6,61,500/-, and adding consortium of Rs.1,60,000/- to the widow and three children as well as Rs.30,000/- towards general damages, total compensation amount is determined at Rs,8,51,500/-, payable along with interest @ 6% per annum.

9. Admittedly, no dispute is raised with regard to liability of insurance company and the validity of insurance policy in respect of the offending vehicle is admitted by Mr. Das, learned counsel for the Insurer-Respondent.

10. In the result, the appeal is disposed with a direction to the Insurer-Respondent No.3 to deposit the total compensation amount Rs. 8,51,500/- before the Tribunal along with interest 6% per annum from the date of filing of the claim application within

a period of two months from today; where-after the same shall be disbursed among all the Claimant-Appellants in equal share by keeping 75% of share of each Claimants in fixed deposit for a period of 6 years with quarterly interest payable on the same.

11. The copies of the evidences and Exhibits as produced by Mr. Mishra are kept on record.

12. Urgent certified copy of this order be granted on proper application.

( B.P. Routray) Judge Sangram Das