Orissa High Court
Jayashri Jena And Others vs P.Murdan And Another on 30 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.728 of 2019
(From the judgment dated 9th July, 2019 passed by the 3rd M.A.C.T.,
Balasore in M.A.C.No.113 of 2016)
.Jayashri Jena and others ...... Appellants
Versus
P.Murdan and another ....... Respondents
Advocate(s) appeared in this case:-
For Appellants : Mr.B.Singh, Advocate
For Respondents : Mr.G.P.Dutta, Advocate
(for Respondent No.2)
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
th
30 January, 2023
B.P.Routray, J.
1. Present appeal by the claimants is directed against the
judgment dated 9th July, 2019 IIIRD MACT, Balasore, in
M.A.C.No.113 of 2016, wherein compensation to the tune of
Rs.8,38,000/- has been granted along with interest @7.5% 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
4th March, 2016.
2. Heard Mr.Singh, learned counsel for the Claimants-
Appellants and Mr.Dutta, learned counsel for the Insurer-
Respondent No.2.
3. This Court by order dated 19th September, 2022 directed the
Tribunal to give its finding on Issue No.2, i.e. relating to negligence
aspect. Pursuant to said direction, the Tribunal by its order dated
22nd November, 2022 has given its finding fixing negligence on the
driver of the offending vehicle bearing Registration No.TN-58S-
2253, i.e. the motorcycle in which the deceased was going as a
pillion rider.
4. Mr.Dutta, learned counsel for the Insurer seriously disputes
this finding of the Tribunal to fix negligence on the driver of the
motorcycle. To support of his contention, Mr.Dutta submits that
according to the contents of the F.I.R. under Ext.1 and the police
investigation report under Ext.B, the driver of the motorcycle was
not negligent for the cause of accident. It is seen from Ext.1 and
Ext.B that the F.I.R. was lodged by the accused driver of the
motorcycle himself. The police while submitting the investigating
report of 'no clue' regarding the lorry involved in the accident, has
observed that the driver of the lorry was responsible for causing the
accident.
5. Admittedly, involvement of the offending motorcycle bearing
Registration No.TN-58S-2253 in the accident is not disputed. As per
the claimant, while the deceased was travelling in the said
motorcycle as a pillion rider, the accused driver of the motorcycle
dashed it against the unknown lorry. In support of their contention,
the claimants examined the eyewitness, namely, Sagar Hembram
(P.W.2), who in his evidence has categorically stated that the driver
of the offending motorcycle was completely negligent in causing the
accident. This part of evidence of P.W.2 is not sufficiently rebutted
in his cross-examination. The reliance placed on the contents of the
F.I.R. as well as the police investigation report is without any
substance in absence of any evidence led from the side of the
insurer. When the case of the claimants is supported by the evidence
of P.W.2, who is the eye-witness, the same cannot be brushed aside
only for a different statement made in the F.I.R. Moreover, when the
witness speaks in his oral evidence in the witness box, the same has
to prevail over the contents of the F.I.R. In this particular case, the
accused driver is the informant and as such, the credence of contents
of the F.I.R. is itself lost. The Supreme Court in the case of
National Insurance Company Ltd. vrs. Chamundeswari and
others, 2021 (4) TAC 367, have observed that, 'if any evidence
before the Tribunal runs contrary to the contents in the First
Information Report, the evidence which is recorded before the
Tribunal has to be given weightage over the contents of the First
Information Report.'
Accordingly, all such contentions raised by Mr.Dutta with
regard to negligence are rejected.
6. Next coming to the quantum of compensation, the claimants
do not raise any dispute about the same except with regard to
addition of future prospects. It is seen from the impugned judgment
that the Tribunal has not added any future prospect to the income of
the deceased while determining the loss of dependency. The
deceased was more than 35 years age on the date of accident and his
monthly income has been taken at Rs.6,000/- by the Tribunal. It is
further seen that the deceased was working in a private company
and the Tribunal has determined his monthly income taking into
consideration the prevalent minimum wage rate. As such, future
prospect to the extent of 40% is to be added in the income of the
deceased. Doing so, the loss of dependency comes to Rs.10,75,200/-
.Adding Rs.80,000/- towards loss of consortium to the wife and
minor daughter of the deceased and Rs.30,000/- towards general
damages, the total compensation is determined at Rs.11,85,200/-.
7. Mr.Dutta further contends that the name of the insured-
Respondent No.1 being not the same as it is in the Insurance Policy,
the Insurer is not liable to indemnify the compensation amount.
However, he does not dispute validity of the Insurance Policy in
respect of the offending vehicle, i.e. motorcycle bearing
Registration No.TN-58S-2253.
8. It is seen that there is some typographical error crept in while
writing the name of the owner. Therefore, such objection raised by
Mr.Dutta is found unsubstantiated and rejected. Present Respondent
No.2, i.e. Oriental Insurance Co. Ltd. is held liable for payment of
compensation amount on behalf of the Owner-Respondent No.1.
9. In the result, the appeal is disposed of with a direction to the
Insurer-Respondent No.2 to deposit the compensation amount of
Rs.11,85,200/- (Eleven lakhs eighty five thousand two hundred)
along with interest @6% per annum from the date of filing of the
claim application, i.e. 28th March, 2016 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.
( B.P. Routray)
Judge
C.R.Biswal
