Orissa High Court
The Divisional Manager vs Kajol Bisoi & Ors on 10 April, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.970 of 2024
The Divisional Manager, New ..... Appellant
India Assurance Co. Ltd., Mr. B. Dasmohpatra, Advocate
Sundergarh
-versus-
Kajol Bisoi & Ors. ..... Respondents
Mr. P.K. Mishra, Advocate
(Respondent Nos. 1 to 4)
CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
10.04.2025
Order No.04
1. This matter is taken up through hybrid mode.
2. Heard Mr. B. Dasmohapatra, learned counsel appearing for the
Appellant-Company and Mr. P.K. Mishra, learned counsel
appearing for the Claimants-Respondent Nos. 1 to 4. Perused the
tracking report. Since notice has been duly served on Respondent
No. 5, notice against Respondent No. 5 is treated as sufficient.
3. Memo containing the death certificate of Respondent No. 3 filed
in Court be kept in record.
4. The present appeal has been filed by the Appellant-Company
challenging Judgment dtd.18.05.2024 so passed by the learned First
Additional District Judge-cum-3rd MACT, Rourkela, Sundargarh in
MAC Case No. 126 of 2022. Vide the said Judgment the Tribunal
assessed the compensation at Rs.1,33,07,408/- along with interest @
6% per annum payable from the date of filing of the claim
application till its realization.
5. In support of the appeal learned counsel appearing for the
Appellant-Company contended that since during the investigation
the Police did not seize any helmet at the accident spot, it is to be
held that the deceased was not wearing the helmet at the time of
accident, which is clear violation of the provisions contained under
Sec. 129 of the M.V. Act. It is also contended that since the
deceased was not wearing a helmet at the time of accident, the
Tribunal while assessing the compensation should have deducted
30% of the awarded amount towards contributory negligence.
5.1. It is also contended that the Tribunal while assessing the
compensation, wrongly calculated the monthly income of the
deceased. It is contended that taking into account the income of the
deceased reflected in the pay slip for the month of March,
2022,under Ext. 15 and the ITR vide Ext. 16, monthly income of
the deceased should have been taken at Rs.46,600/- per month in
place of Rs. 735411/- per annum.
5.2. It is contended that had the Tribunal appreciated the income at
Rs.46,600/- per month and deducted 30% of the assessed
compensation towards contributory negligence, the total
compensation would have come to Rs.71,15,920/-.
5.3. It is also contended that the Tribunal instead of exempting the
Appellant-Company from paying the compensation, only awarded
right of recovery as against Owner-Respondent No. 5. It is also
contended that Respondent No. 5 was set ex parte before the
Tribunal and challenging the right of recovery, Respondent No. 5
has not filed any appeal.
5.4. It is accordingly contended that the impugned award is not
sustainable in the eye of law and requires interference of this Court.
6. Mr. P.K. Mishra, learned counsel appearing for the Claimants-
Respondent Nos. 1 to 4 though on the other hand supported the
impugned Judgment and contended that the Tribunal has rightly
assessed the compensation, but in course of hearing learned counsel
appearing for the Claimants-Respondent Nos. 1 to 4 contended that
the Claimants-Respondents will be fully satisfied, if this Court will
assess the compensation amount at Rs.1,04,50,000/- along with
interest @ 6% per annum payable from the date of filing of the
claim application till its realization. However, it is contended that
since during pendency of the appeal Respondent No. 3 has died on
03.02.2025 and all his legal heirs are on record, the share as will be
admissible to Respondent No. 3, be distributed amongst the other
Claimants, proportionately in terms of the judgment dt.18.05.2024.
7. Learned counsel appearing for the Appellant-Company while left
the aforesaid proposition made by the learned counsel for the
Claimants-Respondent Nos. 1 to 4 to the discretion of this Court,
contended that right of recovery so allowed by the Tribunal as
against Owner-Respondent No. 5 be confirmed.
8. Having heard learned counsel appearing for the Parties and
considering the submissions made, this Court while interfering with
the impugned judgment, is inclined to held the Claimants-
Respondent Nos. 1 to 4 entitled to get compensation amount of
Rs.1,04,50,000/- along with interest @ 6% per annum payable from
the date of application till its realization and confirm the right of
recovery as against Owner-Respondent No. 5 as it is contended that
challenging the right of recovery, Owner-Respondent No. 5 has not
filed any appeal. While holding so, this Court directs the Appellant-
Company to deposit the compensation amount of Rs.1,04,50,000/-
along with interest @ 6% interest per annum payable from the date
of filing of the claim application till its realization before the
Tribunal within a period of eight (8) weeks from the date of receipt
of this order. On such deposit of the amount, since Claimant-
Respondent No. 3 has died in the meantime, the Tribunal shall
distribute the share as due and admissible to Claimant-Respondent
No. 3 as well as the individual share proportionately in favour of
other Claimants in terms of the Judgment passed on 18.05.2024.
8.1. However, it is observed that if the amount as directed is not
deposited within the aforesaid time period of eight (8) weeks, the
compensation amount of Rs.1,04,50,000/- shall carry interest @ 7%
starting from the expiry of the period of eight (8) weeks till the
amount is so deposited.
8.2. It is also observed that if any application will be filed by the
Appellant seeking recovery of the compensation from
Owner/Respondent No. 5, the same be considered and disposed of in
accordance with law and by giving due opportunity of hearing to
Respondent No. 5.
8.3. On such deposit of the amount, the Appellant-Company shall be
permitted to take back the statutory deposit along with accrued
interest, if any from the Registry on proper identification.
9. The appeal is disposed of accordingly.
Digitally Signed (BIRAJA PRASANNA SATAPATHY)
Reason: Authentication Judge
Location: High Court of Orissa, Cuttack
Date: 16-Apr-2025 10:34:55Sneha
