Orissa High Court
Divisional Manager vs Sanjukta Pal And Another on 15 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.460 of 2019
Divisional Manager, D.O.-II,
National Insurance Co. Limited .... Appellant
Mr.Subrat Satpathy, Advocate
-versus-
Sanjukta Pal and another .... Respondents
Mr.B.N.Samantray, Advocate for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
15.05.2023
Order No.
12. 1. Present appeal by the Insurer is directed against the
judgment dated 20th December, 2018 of the 1st Addl. District
Judge-cum-1st M.A.C.T., Cuttack in M.A.C. No. 366 of 2016,
wherein compensation to the tune of Rs.5,54,000/- has been
granted along with interest @6% per annum with effect from the
date of filing of the claim application on account of death of the
deceased in the motor vehicular accident on 2nd April, 2016.
2. The challenge is mainly on two aspects, first,
negligence on part of the driver of the offending motorcycle
bearing Registration No.OD-05N-6825 has been denied and
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:56:08
secondly, the quantification of amount of compensation is stated
to be on higher side.
3. The facts of the case as per the claimants are that, the
deceased while going as a pillion rider in the offending
motorcycle driven by one Pradeep Mallik fell down due to
accident resulted by involvement of an unknown motorcycle. The
accident took place on 2nd April, 2016 due to rash and negligent
driving of the offending motorcycle and the F.I.R. was lodged on
26th April, 2016.
4. According to the Insurer, the F.I.R. lodged by the son
of deceased clearly depicts negligence on the part of the driver of
an unknown motorcycle and therefore, compensation cannot be
saddled on the present Appellant on behalf of the owner of the
offending motorcycle. Further, negligence on the part of the
driver of the offending motorcycle where the deceased was a
pillion rider is not established on record.
5. As seen from record, the admitted position remains that
involvement of the offending motorcycle in the accident is not
disputed. It is not that the Insurer does not admit fall of the
deceased from the offending motorcycle in the accident. P.W.1,
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:56:08
an eyewitness to the accident, says in his evidence that the
deceased while going in the motorcycle as a pillion rider fell
down due to the accident. The police upon completion of
investigation have submitted the charge-sheet for commission of
offence under Sections 279/304-A against the driver of the
offending motorcycle where the deceased was a pillion rider. The
charge-sheet as submitted by the police is not questioned by the
Insurer before the Criminal Court nor did the accused driver of
the offending motorcycle question the same. Most importantly,
no evidence has been adduced from the side of the Insurer. So,
the contention of the Insurer put forth to absolve negligence on
the part of the driver of the offending motorcycle is obviously
without substance. In the given circumstances, applying the
principles of res ipsa loquitur, the negligence on the part of the
driver of the offending motorcycle where the deceased was the
pillion rider can safely be concluded. Thus, the finding of the
Tribunal in this regard is confirmed.
6. Further, the submission advanced to question on the
quantification of the compensation is seen without merit also. The
dispute as put forth by the Insurer is with regard to the income of
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:56:08
the deceased. As per the Insurer, in absence of any documentary
proof regarding income of the deceased, the same ought not have
been counted at Rs.5,000/- per month. It is true that no
documentary evidence has been produced to substantiate the
income of deceased for the claimed amount. The claimants have
stated that the deceased had an income of Rs.12,000/- per month
by running a rice huller. This statement made by P.W.1, the wife
of the deceased, of course has not been supported by any
materials. But, at the same time keeping in view the prevalent rate
of minimum wages, age and social status of the deceased, and his
place of residence, the sum of Rs.5,000/- per month as assessed
by the Tribunal towards income of the deceased per month is
found reasonable and just. The same needs no interference.
7. The Tribunal by adding future prospects to the extent
of 10% to the income of the deceased and deducting 1/3rd there
from towards personal expenses has determined the total
compensation of Rs.5,54,000/-. The same is found appropriate
and is confirmed by this Court.
8. In the result, the appeal is dismissed and the Insurer-
Appellant is directed to deposit the entire compensation of
Signature Not Verified
Digitally Signed Rs.5,54,000/- (Five lakhs fifty four thousand) including interest
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:56:08
as directed by the Tribunal within a period of two months from
today; which shall be disbursed in favour of the claimants on
same terms and proportion as contained in the impugned
judgment. The direction for payment of penal interest @12% is
waived.
9. The statutory deposit made by the Appellant 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.
10. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal, Secy.
Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 16-May-2023 10:56:08
