(An Appeal U/S.173 Of M.V. Act vs Sudha Jaipuria & Others
2024 Latest Caselaw 16740 Ori

Orissa High Court

(An Appeal U/S.173 Of M.V. Act vs Sudha Jaipuria & Others on 18 November, 2024

Author: G. Satapathy

Bench: G. Satapathy

       IN THE HIGH COURT OF ORISSA AT CUTTACK
                    MACA NO.189 of 2023

      (An appeal U/S.173 of M.V. Act, 1988).
      The Branch Manager,        ...                  Appellant
      Magma General Insurance
      Co. Ltd., Rourkela
                          -versus-

      Sudha Jaipuria & Others        ...            Respondents

      For Appellant                  :   Mr. A.A. Khan, Adv

      For Respondents                :   Mr. P.K.Mishra,Adv
                                          (R. Nos.1 & 2)


          CORAM:
                   JUSTICE G. SATAPATHY

  F        DATE OF HEARING & JUDGMENT:18.11.2024

G. Satapathy, J.

1. This appeal by the insurer is directed against

the impugned judgment dated 11.10.2022 passed in

M.A.C. Case No.177 of 2017 by which the learned 3rd

Motor Accident Claims Tribunal, Rourkela (in short,

"the Tribunal") has directed the insurer to pay a sum

of Rs.6,91,456/- to the claimants-cum-respondent

Nos. 1 & 2 along with interest @7% per annum from

the date of filing of the claim application w.e.f

12.07.2017 till realization of the same as

compensation towards death of one Laxman

Jaipuria(hereinafter referred to as the "deceased")

who was the husband of respondent No.1(R1) and

father of respondent No.2(R2) in a motor vehicular

accident.

2. The facts in precise are that on 04.02.2017 at

about 10.00 A.M., while the deceased was coming to

his house, on his way near Bileigarh in the District of

Sundargarh was dashed by a truck bearing Regd.

No.OD-14E-7450 being driven in a rash and negligent

manner causing injuries to him, who was immediately

shifted to RGH, Rourkela and thereafter, referred to

Hi-Tech Hospital, Rourkela where he stayed for three

days as an indoor patient, but subsequently, he was

taken to Super Specialty Hospital, Civil Township,

Rourkela where he was admitted as an indoor patient

for 12 days. However, during the course of his

treatment in his house, he succumbed to the injuries

on 25.05.2017. On this incident, the claimants-R1&2

filed an application U/S. 166 of Motor Vehicles Act,

1988 (in short, "the Act") in the learned Tribunal by

impleading the owner and insurer of the offending

vehicle as parties for grant of compensation of

Rs.8,00,000/- towards loss of dependency, love &

affection and funeral expenses etc. In such

application, which came to be registered as M.A.C.

Case No.177 of 2017, the claimants-R1&2 claimed that

the deceased was earning Rs.10,000/- per month and

due to sudden demise of the deceased, they became

income less.

2.1. On being noticed, although the appellant-

insurer appeared and contested the claim by filing

written statement, but the insured-owner of the

offending vehicle, who is impleaded as respondent

No.3 in this appeal did not contest the claim and,

accordingly, he was set ex-parte in the proceeding

before the learned Tribunal. In its written statement,

the appellant-insurer disputed not only the age of the

deceased, but also his income, however, it admitted

the insurance policy of the offending vehicle to be

valid at the relevant time of accident with further plea

of violation of terms and conditions of the policy by

the driver of the offending vehicle for being not having

a valid Driving License and, accordingly, it denied its

liability to pay the compensation to the claimants-R1&

2 or to indemnify the owner of the offending vehicle-

R3.

3. The learned Tribunal on the basis of rival

pleadings of the parties framed necessary issues and

proceeded to take evidence in the claim of the R1 & 2.

Accordingly, the parties adduced evidence and

thereafter, the learned Tribunal upon analysing the

evidence and hearing the parties, passed the

impugned award which is the subject matter of this

appeal preferred by the insurer.

4. In the course of hearing of this appeal, Mr.

Adam Ali Khan, learned counsel for appellant-insurer

challenges the impugned judgment awarding

compensation to the claimants-respondent Nos. 1 & 2

in the claim Case mainly on three grounds; firstly,

delay in lodging of F.I.R; secondly, no nexus between

cause of death and the injuries sustained by the

deceased due to the accident and thirdly, on the age

of the deceased by claiming him to be 71 years. In

elaborating his submission, Mr. Khan submits that not

only there is delay in lodging the F.I.R, but also the

post-mortem report under Ext.9 clearly reveals the

death to be on account of heart attack and, therefore,

the claim of the respondent Nos. 1 & 2 should have

been rejected by the learned Tribunal, but instead, it

has allowed such claim of the respondent Nos. 1 & 2

for compensation by erroneously interpreting the

evidence available on record. Mr. Khan also disputes

the age of the deceased to be 53 years as taken by

the learned Tribunal on the ground that the original

school leaving certificate of the deceased which was

proved under Ext.11 is a manufactured document and

the same was issued just before one month of the

deceased leaving the school which cannot happen.

Accordingly, Mr. Khan prays to allow the appeal by

setting aside the impugned judgment rejecting the

claim of the respondent Nos. 1 & 2.

In reply, Mr. Pradeep Kumar Mishra, learned

counsel for respondent Nos.1 & 2, however, stoutly

denies the submission of the appellant by contenting

inter alia that the evidence on record clearly discloses

nexus between the cause of the death of the deceased

and the injuries sustained by him in the accident which

is further strengthened by the documentary evidence

of police paper exhibited in evidence in which the

driver of the offending vehicle has been charge

sheeted for offence U/S. 304-A of the IPC. In

addressing the dispute with regard to the age of the

deceased, Mr. Mishra submits that not only the age of

the deceased has been proved by the claimant-

respondent Nos.1 & 2 under Ext.11, but also the post-

mortem report and the inquest report of the deceased

corroborates such age of the deceased as stated under

Ext.11 and, therefore, the appeal by the insurer merits

no consideration. Accordingly, Mr. Mishra prays to

dismiss the appeal.

Since respondent No.3 was set ex-parte in the

original claim and no findings have been recorded

against respondent No. 3 by the learned Tribunal,

which is not challenged by the appellant in this appeal,

notice against him(R3) is accordingly, dispensed with.

5. On consideration of the rival submissions, it is

very clear that the inter-se dispute between the

appellant and claimants-respondent Nos.1 & 2 can be

resolved by examining the sustainability of the

impugned award as passed by the learned Tribunal

keeping in view the rival submissions. In the course of

argument, the appellant gave thrust on delay in

lodging of F.I.R, but such submission has hardly any

bearing in a claim by the legal representative of the

deceased who died in a motor vehicular accident,

unless it is established by the evidence on record that

the deceased had not died in a vehicular accident or

there is no connection between the cause of death of

the deceased with injuries sustained by him in the

accident. It cannot be held that the claim of claimants-

respondent Nos.1 & 2 would be false merely because

they have failed to explain the delay in lodging of F.I.R

inasmuch as the foundational facts for compensation

in an application U/S.166 of the Act rests on the proof

of death suffered or injuries sustained by a person in a

motor vehicular accident. In this case, the appellant-

insurer has never disputed about the vehicular

accident, but it only disputes with regard to the cause

of the death of the deceased by inviting attention of

the Court to the opinion of the Doctor as to cause of

death of the deceased in the post-mortem report

under Ext.9 which unambiguously reveals that the

cause of death of the deceased was due to heart

attack, but facts remains that the documentary and

oral evidence led by the claimants-respondent Nos.1 &

2 clearly discloses that the deceased met with an

accident and sustained injuries and he was treated in

different hospitals, but ultimately he died due to such

injuries. Further, the driver of the offending vehicle

was charge sheeted for offence U/S.304-A of the IPC

which basically goes to show that the deceased died

due to rash and negligent act of the person charge

sheeted. It is also not disputed by the appellant-

insurer that the deceased was treated in different

hospitals for the injuries sustained by him in the

vehicular accident. No specific evidence has been

adduced by the appellant-insurer to dispute that the

deceased died not on account of the injuries sustained

by him in the accident, but for the reason unconnected

with the injuries sustained by him in the vehicular

accident. On the other hand, the claimants-respondent

Nos. 1 & 2 have led sufficient evidence to prove that

there was nexus between the cause of death and the

injuries sustained by the deceased in the vehicular

accident. The learned Tribunal has rightly held that the

deceased died on account of the injuries sustained by

him in the vehicular accident. Accordingly, the

contention as raised by the appellant in this appeal

that there was no nexus between the cause of death

of the deceased and the injuries sustained by him in

the vehicular accident is not acceptable.

6. On coming to the next question about the

dispute regarding the age of the deceased, it appears

that the claimants-respondent Nos.1 & 2 have proved

the school leaving/transfer certificate issued to the

claimants under Ext.11 which of course discloses the

date of birth of the deceased to be 28.06.1964, but in

Column No.8 therein, the date on which the deceased

left the school has been stated to be on 28.07.1975,

but the date of issue of Ext.11 is 28.06.1975 and,

therefore, how come a person would be issued with a

certificate just one month before he left the school.

Hence, no reliance can be placed on such a document

in which the date of school leaving of such student is

one month after the date of issue of such document.

This Court is convinced that the learned Tribunal has

erroneously placed reliance on Ext.11 to determine the

age of the deceased which was disputed by the

appellant-insurer by cross-examining and suggesting

P.W.1, who admitted that the date of issue of Ext.11 is

28.06.1975 and her deceased father left the school on

28.07.1975. It is contended for the appellant-insurer

that the deceased was aged about 71 years by

producing the certified copy of Ext.A, which is the ocpy

of the Aadhaar Card of the deceased, but facts remain

that mere exhibiting or marking a document in

evidence does not dispense with its proof, which is

otherwise required to be done in accordance with law,

inasmuch as the marking of document would go to

show that such a document is exhibited or marked in

evidence, but the contents therein are further subject

to proof in accordance with the rules of the evidence.

In this case, the appellant-insurer has of course

exhibited the Aadhaar Card of the deceased under

Ext.A to contend that the D.O.B. of the deceased is

10.03.1945, but such fact is required to be proved

otherwise in accordance with law which in fact has not

been done so. In the aforesaid situation, neither the

party can said to have proved the age of the

deceased, however, taking into account the post-

mortem report and inquest report of the deceased

together with other evidence on record, the age of the

deceased can be taken at 55years plus which means

56 years for selecting the appropriate multiplier.

7. Further, in absence of any evidence of income

of the deceased at the relevant time of death, the

learned Tribunal, although has rightly taken the

income of the deceased at Rs.214/- per day by taking

into account the minimum wage prescribed by the

Govt. of Odisha for unskilled labour, but it has

erroneously calculated the monthly income of the

deceased by multiplying 30(days) to Rs.214/- which is

the daily wage of the deceased as taken, but the daily

minimum rate of wages shall be inclusive of wages

payable for the weekly day of rest, which is mandatory

and thereby, in the aforesaid backdrop, while

calculating the income for the deceased or injured in a

claim for compensation in Motor Vehicular Accident

and in particular is absence of any evidence of income,

by applying the notification of minimum wage issued

by Govt. from time to time, the Tribunal should take

into account the weekly day of rest, which is

mandatory and, therefore, the income has to be

calculated by taking 26 days for the month after

deducting 04 days of weekly rest, unless there is

specific evidence that such injured/ deceased was also

working and earning on weekly rest day. In this case,

keeping in view the hypothetical consideration of

probability and improbability of deceased getting work

for whole of months or years, it would be just and

proper to calculate the monthly income of the

deceased by multiplying 26 to Rs.214/-, which would

come to 26xRs.214/-= Rs.5,564/- and his annual

income would be Rs. 5,564x12= Rs. 66,768/-.

Further, adding 10% of Rs. 66,768/- towards future

prospect by applying the law laid down by the Apex

Court in National Insurance Company Vrs. Pranay

Sethi and others; (2018) 69 OCR (SC) 1, the

annual income of the deceased would be assessed at

Rs. 66,768 + Rs. 6,677(10% of Rs. 66,768/-) =

73,445/-. Since the deceased had two dependents,

1/3rd of his income has to be deducted towards

personal and living expenses and thereby, the loss of

dependency of the claimant is calculated 2/3rd of Rs.

73,445x9 (48,963x9)=Rs.4,40,667/-. Adding Rs.

84,000/- [Rs. 70,000+10% towards increase as

enhancement for this amount for two times, once in

every three years as prescribed in Pranay

Sethi(supra)] towards non-pecuniary damages such

as loss of consortium, loss of estate and funeral

expenses, the net modified compensation amount

would come to Rs. 440,667+ Rs. 84,000 = Rs.

5,24,667/-(Rupees Five Lakhs Twenty-Four Thousand

Six Hundred Sixty Seven), which the claimants-R1&2

are entitled to receive with simple interest @ 6 % per

annum w.e.f 12.07.2017.

8. In the result, the Appeal succeeds in part on

contest, but no order as to costs and the

compensation as awarded by the tribunal is modified

to the extent indicated above. Consequently, the

claimants are entitled to receive modified

compensation of Rs.5,24,667/-(Rupees Five Lakhs

Twenty Four Thousand Six Hundred Sixty Seven) with

simple interest @ 6 % per annum w.e.f 12.07.2017.

Statutory deposit be refunded back on proof of

deposit of the modified compensation amount before

the tribunal, who shall disburse the same by keeping

80% of the compensation amount in fixed deposit in

the name of the claimants (50% in the name of R1 &

30% in the name of R2) in any nationalized Bank for 5

years with permission to receive quarterly interest

thereon by the claimants. The decision with regard to

allowing premature withdrawal be rest with the

tribunal on his satisfaction. It is also made clear that

the rest 20% of the compensation amount be paid to

the claimants in cash proportionately.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 18th day of November, 2024/S.Sasmal

Location: High Court of Orissa