Narmada Behera @ Bhoi And Others vs Venkata Naryana Pamarti And ...
2023 Latest Caselaw 7606 Ori

                                       IN THE HIGH COURT OF ORISSA AT CUTTACK

                                          MACA No.1182 of 2018 & MACA No.1329 of 2018


                                   MACA No.1182 of 2018
                                   Narmada Behera @ Bhoi and others          ....        Appellants
                                                                          Mr.P.K.Mishra, Advocate


                                                               -versus-

                                   Venkata Naryana Pamarti and another ....       Respondents
                                                   Mr.A.A.Khan, Advocate for Respondent No.2


                                                              AND

                                  MACA No.1329 of 2018
                                  Cholamandalam MS General Insurance
                                  Company Limited                    ....        Appellant
                                                                  Mr.A.A.Khan, Advocate


                                                               -versus-


                                  Narmada Behera@Bhoi and others        ....     Respondents
                                            Mr.P.K.Mishra, Advocate for Respondent Nos.1 to 5

                                              CORAM:
                                              JUSTICE B. P. ROUTRAY

                                                            ORDER

14.7.2023 Order No.

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

2. Heard Mr.Mishra, learned counsel for the Claimants Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL and Mr.Khan, learned counsel for the Insurer. Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack

3. Both the appeals arise out of the same judgment dated 25th August, 2018 passed by the learned 3rd M.A.C.T., Bhubaneswar, in M.A.C.Case.No.231/357 of 2012-11, wherein compensation to tune of Rs.9,13,750/- along with interest @8% per annum has been granted from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident dated 1st June, 2011.

4. MACA No.1182 of 2018 has been filed by the claimants for enhancement of the compensation amount and MACA No.1329 of 2018 has been filed by the Insurer challenging the award.

5. Mr.Khan on behalf of the Insurer, i.e. M/s. Cholomandalam General Insurance Co. Ltd. submits that when the negligence is contributed equally on both the vehicles, direction to present Insurer to pay entire compensation amount and recover 50% of the same from the Insurer of other vehicle is erroneous. He further questions the quantum of compensation by challenging the income of the deceased assessed by the Tribunal.

6. On the other hand, Mr.Mishra submits for the claimants that the Tribunal has failed to add compensation towards loss of parental consortium to the minor children and on this score he prays for enhancement of the compensation amount.

7. The accident was the result of head on collision between the offending truck bearing Registration No.AP-37V- Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL 7236 and Tata Ace bearing Registration No.OR-02BJ-4385 and Designation: Secretary Reason: Authentication the deceased was an occupant of Tata Ace. The Tribunal Location: Orissa High Court, Cuttack Date: 18-Jul-2023 11:37:56 accordingly contributed equal negligence on the part of drivers of

both the vehicles. Since the owner and Insurer of Tata Ace vehicle was not made party before the Tribunal, the Tribunal directed present Appellant i.e. the Insurer of the offending truck to pay the entire compensation with further direction to recover 50% amount from the insurer of the Tata Ace vehicle. This direction of the Tribunal is seen without any flaw keeping in view the principles decided in the case of Khenyei Vrs. New India Assurance Company Limited and others, (2015) 9 SCC 273.

8. So far as the challenges advanced on the question of quantum of compensation, the assessment of the Tribunal to determine the income of the deceased at Rs.5,000/- per month is found justified keeping in view the fact that the deceased was a vegetable vender as per the contention of the claimants in the claim application. What is submitted by Mr.Khan to treat the deceased as a labourer and to re-determine his income accordingly are found without merit since at the time of accident the deceased was returning after sell of vegetables in the market as per evidence of the claimants. The dependents include four minor children of the deceased and they are certainly entitled for parental consortium upon death of their father. On this count, a sum of Rs.1,20,000/- is added keeping the date of accident in view. As such, the compensation amount is enhanced to Rs.10,33,750/-, payable along with interest @6% per annum.

9. In the result, the appeals are disposed of with a direction to the Insurer to deposit the compensation amount of Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Rs.10,33,750/-along with interest @6% per annum from the date Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack

of filing of the claim application within a period of two months from today; where-after the same shall be disbursed in favour of claimants No.1 to 5 on such terms and proportion to be decided by the Tribunal since Claimant No.6, namely Rambha Behera @ Bhoi, died in the meantime as per submission of the parties.

The direction for payment of penal interest @8% per annum is waived.

10. The statutory deposit made by the Appellant in MACA No.1329 of 2018 along 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.

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

( B.P. Routray) Judge

C.R.Biswal

Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 18-Jul-2023 11:37:56