Orissa High Court
The Divisional Manager vs Sk. Ayub Hossain And Others on 14 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.248 of 2018 & MACA No.225 of 2018
(From the judgment dated 23rd August, 2017 passed by learned 6th
M.A.C.T., Karanjia in M.A.C. No.125 of 2012 and M.A.C. No.101 of
2013)
In MACA No.248 of 2018
The Divisional Manager, Oriental .... Appellant
Insurance Co. Ltd.
-versus-
Sk. Ayub Hossain and others .... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. G.P. Dutta, Advocate
For Respondents : Mr. B. B. Singh, Advocate
For Respondent Nos.1 to 3
Mr. S. Roy, Advocate
For Respondent No.6
In MACA No.225 of 2018
Divisional Manager, Oriental .... Appellant
Insurance Co. Ltd.
-versus-
Rasonara Begum and others .... Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. G.P. Dutta, Advocate
For Respondents : Mr. B.B. Singh, Advocate
For Respondent No.1
Mr. S. Roy, Advocate
For Respondent No.4
MACA Nos.248 & 225 of 2018 Page 1 of 9
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
14th March, 2023
B.P. Routray, J.
1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-insurer
(Oriental Insurance Co. Ltd.), Mr. S. Roy, learned counsel for the
Respondent-insurer (New India Assurance Co. Ltd.) and Mr. B. B.
Singh, learned counsel for the Respondents-claimants.
2. Both the appeals arising out of two claim applications pertaining
to same accident, where one person died and other one was injured, are
heard together and disposed of by this common judgment.
3. MACA No.248 of 2018 has been filed by the insurer-Oriental
Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6th
M.A.C.T., Karanjia in M.A.C. No.125 of 2012, wherein compensation
to the tune of Rs.3,25,000/- has been granted along with simple interest
@7% per annum to the claimants from the date of filing of the claim
application, i.e.1.11.2012 on account of death of the deceased, namely,
Rezwana Parbeen in the motor vehicular accident dated 12.5.2011.
4. MACA No.225 of 2018 has been filed by the insurer-Oriental
Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6th
M.A.C.T., Karanjia in M.A.C. No.101 of 2013, wherein compensation
to the tune of Rs.56,100/- has been granted along with simple interest
@6% per annum to the claimant from the date of filing of the claim
application, i.e.6.8.2013 on account of injury sustained to the claimant,
namely, Rasonara Begum in the motor vehicular accident dated
12.5.2011.
5. The accident was the result of front collision between Indica Car
bearing Registration No.OR-11-E-1191 and Truck bearing Registration
No.OR-09-P-1859 on a Ghat road while the Car was going up the hill
and the Truck coming downhill. The deceased as well as the injured
were the occupants of the Car. As per the claimants, the Car was on its
left side and the Truck while coming down the hill with high speed
dashed the Car swerving to right side.
6. The learned Tribunal has concluded about composite negligence
of both the vehicles and by observing that there are insufficient
evidences to determine the extent of negligence of the respective
drivers, has directed the present Appellant to indemnify entire
compensation amount. This is challenged by the Appellant and Mr.
Dutta, learned counsel for the Appellant-insurer (Oriental Insurance
Co. Ltd.) submits that, when admittedly there is front collision between
two vehicles and the Police has submitted the charge-sheet against both
the drivers for criminal prosecution under Sections 279/337/338/304A,
I.P.C., the negligence of the drivers should be distributed equally and
accordingly the liability to pay the compensation should be shared in
same proportion.
7. Two eye-witnesses including the injured were examined in total
in both the cases. Their consistent statement is to the effect that the
driver of the Truck was entirely negligent for the cause of accident.
The Appellant-Insurance Company though did not examine any
witness on its behalf, but relied on the contents of Police papers
including FIR and final form to substantiate its contention regarding
contributory negligence in equal proportion on both the drivers.
8. Having perused the evidences of both these eye-witnesses, i.e.
P.W.2 in M.A.C. No.125 of 2012 and P.W.1 in M.A.C. No.101 of
2013, it reveals that they have categorically stated about negligence of
the driver of the Truck, who dashed the Indica Car by swerving
towards right side. However, the content of the FIR goes to show that
both the vehicles were coming in high speed on the Ghat road resulting
the unfortunate accident. Neither party did attempt to examine the
informant before learned Tribunal. It is true that production of copies
of documents like FIR and charge-sheet does not dispense with proof
of contents of the documents. Therefore, in absence of evidence of
material witnesses, no point is seen in favour of the contention of the
insurer to conclude part-negligence on the driver of the Car. So, upon
going through the evidences produced before the Tribunal, I agree with
the opinion of learned Tribunal that such evidences produced are
insufficient to determine the extent of negligence on each of drivers in
definite proportion.
9. The Supreme Court in the case of Khenyei vs. New India
Assurance Co. Ltd. and others, 2015 (2) T.A.C. 677 (S.C.) has
observed as follows:
"What emerges from the aforesaid discussion is as follows:
(i) In the case of composite negligence, plaintiff/claimant
is entitled to sue both or any one of the joint tort-feasors
and to recover the entire compensation as liability of joint
tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of
compensation between two tort-feasors vis-à-vis the
plaintiff/claimant is not permissible. He can recover at his
option whole damages from any of them.
(iii) In case all the joint tort-feasors have been impleaded
and evidence is sufficient, it is open to the Court/Tribunal
to determine inter se extent of composite negligence of the
drivers. However, determination of the extent of
negligence between the joint tort feasors is only for the
purpose of their inter se liability so that one may recover
the sum from the other after making whole of payment to
the plaintiff/claimant to the extent it has satisfied the
liability of the other. In case both of them have been
impleaded and the apportionment/extent of their
negligence has been determined by the Court/Tribunal, in
main case one joint tort-feasor can recover the amount
from the other in the execution proceedings.
(iv) It would not be appropriate for the Court/Tribunal to
determine the extent of composite negligence of the drivers
of two vehicles in the absence of impleadment of other
joint tort feasors. In such a case, impleaded joint tort feasor
should be left, in case he so desires, to sue the other joint
tort-feasor in independent proceedings after passing of the
decree or award."
10. In the case at hand, when the evidences are insufficient to
determine the extent of negligence on respective drivers, the joint tort-
feasor, i.e. the owner of the Car along with its insurer (New India
Assurance Co. Ltd.), who has been left out from the rigor of payment
of compensation, can be proceeded with for realization of appropriate
amount in proportion with his amount of negligence by the present
Appellant-insurer, in view of the law settled in the afore-cited case.
Therefore, it is observed here that the present Appellant-insurer is at
liberty to proceed against New India Assurance Co. Ltd. along with the
owner of the offending Car, in case he desires so, to sue him in
independent proceeding after satisfying the award amount.
11. In MACA No.248 of 2018, i.e. the case of death, the claimants
have prayed for enhancement of the compensation amount on the
ground of higher income of the deceased and also by addition of future
prospects. The cross-objectors being the claimants are exempted from
payment of deficit Court fee for the time being and also are dispensed
with filing of certified copy of the judgment.
12. It is contended on behalf of the Appellant-insurer that the award
of compensation amount to the extent of Rs.1,00,000/- towards
consortium and Rs.50,000/- towards love and affection are
unsustainable in view of the settled principles.
13. Perusal of impugned judgment reveals that the date of birth of
the deceased as per H.S.C. Certificate is 25.11.1970. So considering
the date of accident on 12.5.2011, her age is taken as 39 years and
accordingly multiplier '15' is found applicable. The deceased being a
woman aged about 39 years, her notional income is fixed at Rs.3000/-
per month as per the ratio settled in the case of Laxmi Devi and others
vs. Mohammad Tabbar and another, (2008) 12 SCC 165. Further, the
Supreme Court in Kirti and another vs. Oriental Insurance Company
Limited, (2021) 2 SCC 166, have held in support of addition of future
prospects on notional income.
14. Thus adding future prospects to the extent of 40% on the
notional income of the deceased at Rs.3000/- per month, her annual
income comes to Rs.50,400/-. Deducting 1/3rd towards personal
expenses, the total loss of dependency is determined at Rs.5,04,000/-.
A sum of Rs.1,00,000/- is added towards spousal consortium as well as
parental consortium, keeping in view the date of accident on 12.5.2011.
Further a sum of Rs.30,000/- is added towards loss of estate and
funeral expenses. Accordingly, the total compensation amount is
derived at Rs.6,34,000/-, payable along with interest @6% per annum.
15. In the injury case, i.e. M.A.C.A. No.225 of 2018, no such valid
ground is seen to interfere with the quantification of compensation
amount. Accordingly, the amount as directed by learned Tribunal in the
injury case is confirmed.
16. In the result, both the appeals (MACA No.248 of 2018 and
MACA No.225 of 2018) are disposed of with a direction to the
Appellant-insurer (Oriental Insurance Company Ltd.) to deposit
respective compensation amounts of Rs.6,34,000/- and Rs.56,100/-
before learned Tribunal along with interest @6% per annum from the
date of filing of respective claim applications, within a period of two
moths from today. The amounts shall be disbursed in favour of the
respective claimants on such terms and proportions to be decided by
learned Tribunal.
17. On deposit of the award amount before the learned Tribunal and
filing of receipt evidencing the deposit with refund applications before
this Court, the statutory deposits made in MACA No.248 of 2018 and
MACA No.225 of 2018 before this Court with accrued interest thereon
shall be refunded to the Appellant-Insurance Company.
18. The copies of the evidences and other documents produced in
course of hearing are kept on record.
(B.P. Routray)
Judge
B.K. Barik/Secretary
