Orissa High Court
Iffco-Tokio General Insurance vs Nalini Sahoo And Others on 28 March, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.705 of 2018 & MACA No.518 of 2018
In MACA No.705 of 2018
IFFCO-TOKIO General Insurance .... Appellant
Company Limited
Mr. A.A. Khan, Advocate
-versus-
Nalini Sahoo and others .... Respondents
Mr. P.K. Mishra, Advocate for Respondent Nos.1 to 3
In MACA No.518 of 2018
Nalini Sahoo and others .... Appellants
Mr. P.K. Mishra, Advocate
-versus-
M/s.C.V. Raman College of .... Respondents
Engineering and another
Mr. A.A. Khan, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
28.03.2023
Order No.
MACA No.705 of 2018 and MACA No.518 of 2018
07. 1. Heard Mr. A.A. Khan, learned counsel for the Insurance
Company and Mr. P.K. Mishra, learned counsel for the claimants.
2. Both the appeals being arise out of same impugned judgment
dated 06.03.2018 of learned 3rd MACT, Bhubaneswar in M.A.C.
Case No.261/111 of 2012, wherein compensation to the tune of
Rs.6,94,500/- has been granted along with interest @7% per
annum to the claimants from the date of filing of the claim
application, i.e.4.7.2012 on account of death of the deceased in a
motor vehicular accident dated 02.01.2012, are heard together
and disposed of by this common order.
3. MACA No.705 of 2018 has been filed by the insurer
challenging the award and MACA No.518 of 2018 has been filed
by the claimants praying for enhancement of the compensation
amount.
4. Mr. Khan, learned counsel for the Appellant-insurer submits
that the driver of the Bolero vehicle bearing Registration No.OR-
02-BJ-8901 has contributed negligence to the accident so also the
driver of the motorcycle in which the deceased was riding as a
pillion. He thus prays to distribute the liability among the owner
of the offending Bus bearing Registration No.OR-02-AD-6477,
owner of the Bolero vehicle and owner of the motorcycle.
5. The accident took place on 02.01.2012 at about 8 a.m. on
N.H.5 near Gohira Chhaka at the turning of road. The undisputed
fact remains that the Bus first hit the Bolero and as a result of the
same the Bolero hit the motorcycle causing death of the deceased.
6. It is seen that one witness, Viz. P.W.2 was examined from the
side of the claimants and one witness Viz. O.P.W.1 from the side
of the owner of the offending Bus was examined. P.W.2 was an
independent biker going at the spot at the time of accident.
According to him, the driver of the Bus was completely negligent
in causing the accident. O.P.W.1 was an occupant of the
offending Bus at the time of accident. According to him, the
motorcycle was driven hurriedly and carelessly and the accident
took place while the motorcycle was trying to overtake the
Bolero. The Police have submitted charge-sheet against the driver
of the Bus as well as the driver of the Bolero.
7. Upon perusal of the evidence of P.W.2, O.P.W.1 and the
copies of the Police papers, the evidence adduced by P.W.2
seems convincing in the circumstances narrated in the FIR as well
as the Police investigation report. What is stated by O.P.W.1 to
attribute negligence on the driver of the motorcycle is found
unsupported by material circumstance. Thus, based on the
principles of pre-ponderance of probability, the evidence adduced
by P.W.2 is found heavier and as such the contentions of the
claimants to establish negligence on the part of the driver of the
Bus is established. Accordingly the finding of the learned
Tribunal is confirmed and it is held that the insurer of the Bus, i.e.
IFFCO-TOKIO General Insurance Co. Ltd. is liable to pay the
compensation amount. However, this Court is not disturbing the
direction of learned Tribunal granting right of recovery in favour
of the Insurance Company for lack of permit on the part of
offending Bus.
8. With regard to quantum of compensation, Mr. Khan submits
for reduction of the same by counting a reduced income of the
deceased. At the same time, the claimants have prayed for
enhancement of the compensation amount by adding future
prospects and parental consortium.
9. It is seen that the deceased was aged about 48 years on the
date of accident. According to the claimants, he was working as a
mason. The learned Tribunal has assessed his income at
Rs.6000/- per month, which is found appropriate. No point is seen
in favour of the insurer to reduce the same. Adding future
prospect to the extent of 25% on the income of the deceased and
Rs.40,000/- each to both the children of the deceased towards
parental consortium, total compensation amount is enhanced to
Rs.9,30,500/-, payable along with interest @6% per annum.
10. In the result, both the appeals are disposed of with a direction
to the insurer i.e. IFFCO-TOKIO General Insurance Co. Ltd. to
deposit modified compensation amount of Rs.9,30,500/- (rupees
nine lakhs thirty thousand five hundred) before the Tribunal along
with interest @6% per annum from the date of filing of the claim
application, i.e. 4.7.2012 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. However, the direction for payment of penal interest
@8% per annum is waived.
11. On deposit of the award amount before learned Tribunal and
filing of a receipt evidencing the deposit with a refund application
before this Court, the statutory deposit made in MACA No.705 of
2018 before this Court with accrued interest thereon shall be
refunded to the Insurance Company.
12. The copies of evidence produced in course of hearing are kept
on record.
13. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
