Divisional Manager vs Pyari Dungdung And Others
2023 Latest Caselaw 2180 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK
                                  MACA No.1177 of 2007
                 Divisional Manager, National
                 Insurance Company Ltd.                  ....          Appellant
                                                Ms. Rimjhimbala Pati, Advocate
                                         -versus-
                 Pyari Dungdung and Others               ....       Respondents
                                 Ms. S. Sahoo, counsel for Respondents 2 & 3
                           CORAM:
                           SHRI JUSTICE B. P. ROUTRAY
                                         ORDER

16.3.2023 Order No.

18. 1. The matter is taken up through hybrid mode.

2. Heard Ms. R. Pati on behalf of Mr. S. Roy, learned counsel for the insurer - Appellant and Ms. S. Sahoo, learned counsel for claimant - Respondents 2 & 3.

3. Present appeal by the insurer is directed against the impugned judgment dated 21st April, 2007 of learned 2nd MACT, (Northern Division), Sambalpur passed in Misc.(A) Case No.37 of 1995 (SN), wherein compensation to the tune of Rs.3,45,200/- along with interest @ 6% per annum from the date of filing of the claim application, i.e. 10th February, 1995 has been granted on account of death of deceased in the motor vehicular accident dated 29th December, 1994.

4. The accident took place on 29th December, 1994. The deceased was a bachelor aged about 27 years on the date of accident and his income at Rs.3,300/- per month from the employment under TISCO has been substantiated on record under Ext.7 to Ext.11. The validity of the insurance policy and negligence of the driver of the offending vehicle has not been disputed.

5. The tribunal while computing compensation took the age of the mother of deceased as the determining factor to derive the multiplier.

6. Ms. Pati, learned counsel submits on behalf of the insurer that the claimants have already received Rs.50,000/- towards no fault liability, which is required to be adjusted from the compensation amount directed by the tribunal. She further submits that the present claimant - Respondents 2 and 3 being the major brother and sister of the deceased should not be treated as dependents of the deceased.

7. The claimant - Respondents No. 2 & 3 have filed cross-appeal praying for enhancement of the compensation amount.

8. Upon hearing both parties, it is seen that the mother of the deceased died during pendency of the appeal and as such her name was deleted. So far as claimant - Respondents No.2 and 3 are concerned, they are undisputedly major brother and sister of the deceased. But the same would not disqualify them from the status of dependents of the deceased, who was unmarried at the time of death. Law has been set at rest on this point in the case of National Insurance Company Ltd. v. Birender and others, (2020)11 SCC 356. As such no merit is seen in the contention of the insurer.

9. The income and age of the deceased being established on record, which is not disputed at the Bar, the computation of compensation is determined afresh as follows:-

i) Annual income =Rs.3,300/- x 12 =Rs.39,600/-

      ii)   Future prospect (50%)                     =Rs.59,400/-
      iii) Annual loss of dependency after
           deducting 50% towards personal
           expenses                                   =Rs.29,700/-
      iv) Total loss of dependency
          (Applying multiplier '17')                  =Rs.5,04,900/-
      v)    Adding Rs.30,000/- towards loss
            of estate and funeral expenses            =Rs.5,34,900/-

Accordingly the total compensation amount is determined at Rs.5,34,900/-, payable along with interest @ 6% per annum.

10. In the result the appeal is disposed of with a direction to the insurer - Appellant to deposit modified compensation of Rs.5,34,900/- (five lakhs thirty four thousand nine hundred) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 10th February 1995, within a period of two months from today, where-after the same shall be disbursed in favour of the claimant - Respondents 2 and 3, namely Pyari Dungdung and Wilson Dungdung on such terms and proportion to be decided by learned tribunal.

It is further directed that the amount of Rs.50,000/- paid towards no fault liability shall be adjusted from the modified compensation amount.

11. It is made clear that the direction of learned tribunal regarding right of recovery granted in favour of the insurer has been left undisturbed.

12. The statutory deposit made by the insurer before this court along with accrued interest thereof shall be refunded on proper application and on production of proof of deposit of the awarded amount before the tribunal.

13. An urgent certified copy of this order be issued as per rules.

( B.P. Routray) Judge M.K.Panda