Orissa High Court
Smt. Jayanti Panigrahi And Others vs S. Bhimsen Patro And Another on 14 July, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.77 of 2010 & MACA No.354 of 2010
In MACA No.77 of 2010
Smt. Jayanti Panigrahi and others .... Appellants
Mr. D. Pattnaik, Advocate
-versus-
S. Bhimsen Patro and another .... Respondents
Mr. A. Das, Advocate for Respondent No.2
In MACA No.354 of 2010
National Insurance Co. Ltd. .... Appellant
Mr. A. Das, Advocate
-versus-
Smt. Jayanti Panigrahi and others .... Respondents
Mr. D. Pattnaik, Advocate for Respondent Nos.1 to 5
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
14.07.2023
Order No.
MACA No.77 of 2010 and MACA No.354 of 2010
12. 1. Heard Mr. D. Pattnaik, learned counsel for the claimants and
Mr. A. Das, learned counsel for the Insurance Company.
2. Both the appeals being arise out of the same judgment dated
5.11.2009 of learned 1st M.A.C.T., Ganjam-Gajapati, Berhampur
in M.A.C. No.167 of 2006, wherein compensation to the tune of
Rs.1,72,500/- has been granted along with interest @7½ % per
annum to the claimants from the date of filing of the claim
application, i.e.30.6.2006 on account of death of the deceased in
Signature Not Verified
Digitally Signed
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Jul-2023 10:46:40
the motor vehicular accident dated 7.7.2005, are heard together
and disposed of by this common order.
3. In MACA No.354 of 2010, the insurer challenged the
impugned award mainly on the ground that the driver of the
offending vehicle, i.e.Tractor bearing Registration No.OR-07-E-
7834 was not authorized to drive the same and secondly, the
deceased has contributed negligence towards the accident.
4. On the other hand, the claimants have filed MACA No.77 of
2010 praying for enhancement of the compensation amount on
the ground that the income of the deceased has been assessed at
lower side.
5. First dealing with the challenges advanced by the Insurance
Company, the contentions regarding driving lincense of the driver
are found without merit. Admittedly, the driver was authorized to
drive a non-transport vehicle and the copy of his driving license
was marked under Ext.B. The offending vehicle being a Tractor,
the driver is found authorize to drive the same in view of Section
2 (21) of the M.V. Act.
6. The accident took place when the deceased was going by
walk. The offending vehicle dashed him from behind. Therefore,
the contentions raised to attribute negligence on the part of the
deceased are also found without merit and rejected.
7. So far as the contentions of the claimants are concerned, it is
seen that learned Tribunal by disbelieving the claim of the
applicants to accept the income of deceased at Rs.7500/- per
Signature Not Verified
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Jul-2023 10:46:40
month, has counted his notional income at Rs.15,000/- per
annum. The case of the claimants is that the deceased was
working as a Supervisor under a contractor (P.W.5). The wife of
the deceased (P.W.1) as well as P.W.5 have stated in their oral
evidence regarding receipt of such amount by the deceased
towards his salary. They have also produced the letter of
appointment of the deceased under Ext.5. But learned Tribunal
has rejected their contention and discarded Ext.5 to accept the
notional income prescribed under Schedule II of the M.V. Act.
This approach of the learned Tribunal is found erroneous and
disapproved by this Court. It is for the reason that when the
consistent case of the claimants that the deceased was working as
Supervisor and they adduced oral evidence to that effect
including Ext.5, the deceased cannot be treated as a non-earning
person only for the simple reason that the claimants failed to
produce documentary evidence regarding specific income of the
deceased. In the circumstances, keeping in view the oral evidence
adduced from the side of the claimants particularly through P.W.1
and P.W.5, which are remained un-rebutted in their cross-
examination, this Court find it appropriate to accept the income of
the deceased at Rs.5000/- per month at least. Such conclusion is
derived by taking note of the place of residence of the deceased
and date of accident.
8. The deceased was 40 years old at the time of accident as per
post mortem report. Accordingly, multiplier '15' is taken and
deducting 1/4th towards personal expenses, the annual loss of
dependency with addition of future prospects to the extent of
25%, comes to Rs.56,250/-. The total loss of dependency
Signature Not Verified
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Jul-2023 10:46:40
becomes Rs.8,43,750/-. Adding Rs.1,50,000/- towards general
damages including consortium to the widow and children, the
compensation amount is determined to Rs.9,93,750/-, payable
along with interest @6% per annum.
9. In the result, both the appeals are disposed of with a direction
to the Insurance Company to deposit the modified compensation
of Rs.9,93,750/- (rupees nine lakhs ninety-three thousand seven
hundred fifty) before the Tribunal along with interest @6% per
annum from the date of filing of the claim application,
i.e.30.6.2006 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 decided by learned Tribunal.
10. On deposit of the award amount by the insurer before the
learned Tribunal and filing of a receipt evidencing the deposit
with refund applications before this Court, the statutory deposit
made in MACA No.354 of 2010 before this Court with accrued
interest thereon shall be refunded to the insurer.
11. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
Signature Not Verified
Signed by: BASANTA KUMAR BARIK
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 18-Jul-2023 10:46:40
