Orissa High Court
The Branch Manager vs Tularam Bisoi And Others on 11 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.635 of 2018
The Branch Manager, .... Appellant
National Insurance Co. Ltd.,
Jeypore, Koraput
Mr. Nibas Chandra Mishra, Advocate
-versus-
Tularam Bisoi and others .... Respondents
Mr. Tapas Kumar Acharya Advocate
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 11.10.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel appearing for the Appellant as well as
learned counsel for the Respondents. Perused the records.
3. The present appeal has been filed at the instance of the
Appellant-Insurance Company challenging award dated 6th February,
2018 passed by the 1st M.A.C.T., Koraput at Jeypore in Motor
Accident Claim Case No.60 of 2016.
4. Learned counsel for the Appellant, at the outset, submitted that
the Tribunal by taking into consideration the age of the deceased to
be 55 years applied 11 multiplier and finally awarded a total sum of
Rs.5,62,000/- including Rs.15,000/- towards funeral expenses.
Assailing the aforesaid award on the ground that the age of the
deceased was 58 years at the time of death, the Appellant has
preferred the present Appeal. During the pendency of the preset
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appeal, an application was filed under Order-41 Rule-27 of the
C.P.C. to adduce additional evidence. Along with the application
under Order-41 Rule-27 of the C.P.C., learned counsel for the
Appellant has also filed a copy of the Aadhaar Card of the Petitioner
which indicates that the date of birth of the deceased is 9.5.1958.
Thus, it is argued by Mr. Mishra, learned counsel for the Appellant-
Insurance Company that the age of the deceased at the time of the
death was 58 years and not 55 years. In such view of the matter,
learned counsel for the Appellant submitted that instead of 11
multiplier, the Tribunal should have applied 9 multiplier. Only on the
aforesaid ground, the present appeal has been preferred.
5. Learned counsel for the Respondents, on the other hand,
submitted that the Tribunal while adjudicating the entire issue has
taken note of the date of the death of the deceased as furnished by the
claimants in the claim application as well as P.M. Report. He further
contended that the Insurance Company although filed their W.S.,
they did not challenge the age of the deceased at the first instance.
However, at the belated stage, the Appellant-Insurance Company has
filed an application under Order-41 Rule-27 of the C.P.C. to adduce
evidence and bring on record a copy of the Aadhaar Card of the
deceased.
6. Learned counsel for the Respondents further emphatically
argued that such belated attempt to bring on record a document
which was although in existence at the time of filing of the W.S. of
well before the conclusion of the trial having not been produced
before the Tribunal, the Appellant is estopped to bring on record such
a document by way of adoption of additional evidence. In such view
of the matter, learned counsel for the Respondents further contended
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that the Tribunal has not committed any illegality in applying the 11
multiplier by taking into consideration the age that was available on
record at the time of adjudication of the matter.
7. Having heard the learned counsels appearing for both the sides
and on a careful consideration of the materials on record, this Court
observes that the Tribunal in its judgment by taking into
consideration the age of the deceased to be 55 years applying the 11
multiplier. The Insurance Company has filed an application to adduce
additional evidence at the stage of the appeal. Although the same is
permissible under the law, however, this Court has to consider the
same objectively. On a perusal of the documents that is sought to be
introduced by way of additional evidence, this Court further observed
that the same is the copy of the Aadhaar Card of the deceased and the
same also reveals that the date of birth of the deceased is 9.5.1958.
Therefore, in the event such additional evidence is accepted and
taken on record, the age of the deceased at the time of accident would
be 58 years. However, this Court is also of the considered view that
such Aadhaar Card is not conclusive view of the date of birth of a
person and it can only corroborate the facts which have been pleaded
or otherwise proved and can only be used as a supportive evidence.
Thus, further assuming that the same is accepted by this Court, the
difference is only to three years. Therefore, there would be not much
of difference. In the present case, admittedly the victim is
accidentally died. The Tribunal has duty bound to access the
compensation. Further, it is well settled principle of law that exact
loss sustained cannot be assessed by any court of law. Therefore,
attempt should always be through compensate the loss as far as
practicable.
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8. In view of the aforesaid analysis, this Court although is not
inclined with the adjudication of the compensation, however, in the
larger interest of justice, the compensation amount that has been
awarded by the Tribunal is modified to the extent that the total
amount of compensation shall be of Rs.5,30,000/- (Rupees five lakhs
thirty thousand) including the funeral expenses and the same shall
carry @ 6% interest instead of 7% as has been directed by the
Tribunal. Further, the Appellant-Insurance Company is directed to
make payment to the Respondents No.1 to 4 within a period of two
months from today, as has been directed by the Tribunal subject to
the modification made hereinabove. It is further directed that on
production of a copy of the receipt showing acknowledgement of the
award amount, the Registry of this Court shall release the statutory
deposit along with interest to the Appellant.
9. With the aforesaid modification in the award, the appeal is
disposed of.
( A.K. Mohapatra)
Judge
Debasis
Signature Not Verified
Digitally Signed
Signed by: DEBASIS AECH
Designation: Secretary
Reason: Authentication
Location: OHC CUTTACK
Date: 17-Oct-2023 17:28:35
