M/S. New India Assurance Co vs Karunakar Sabar & Ors
2025 Latest Caselaw 7246 Ori

Orissa High Court

M/S. New India Assurance Co vs Karunakar Sabar & Ors on 17 April, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

      IN THE HIGH COURT OF ORISSA AT CUTTACK
                    MACA No.120 of 2024
M/s. New India Assurance Co.     .....      Appellant
Ltd.                                    Mr. A.A. Khan, Advocate
                             -versus-
Karunakar Sabar & Ors.         .....        Respondents
                                                 Mr. S.B. Das, Advocate
                                                 (Respondent Nos. 1 to 3)

                    CORAM:
THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY
                     ORDER

17.04.2025

Order No.10

1. This matter is taken up through hybrid mode.

2. Heard Mr. A.A. Khan, learned counsel appearing for the Appellant-Company and Mr. S.B. Das, learned counsel appearing for the Claimants-Respondent Nos. 1 to 3.

3. The present appeal has been filed by the Appellant-Company challenging Judgment dtd.07.08.2023 so passed by the learned 3rd Additional District Judge-cum-4th MACT, Cuttack in MAC Case No. 1537 of 2019. Vide the said Judgment the Tribunal assessed the compensation at Rs.25,66,738.4/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization. The Tribunal also awarded default interest @ 12%, if the compensation so assessed is not deposited within the stipulated time period.

4. Learned counsel appearing for the Appellant-Company in support of the appeal contended that in view of the clear finding of the Tribunal that drivers of both the vehicles are negligent for causing

the accident, resulting the death of the deceased, awarded amount should have been reduced proportionately.

4.1. In support of the same, reliance was placed to a decision of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Ors. reported in 2015(2) TAC 677 (SC). Hon'ble Apex Court in Para 6 of the said Judgment has held as follows:-

"6. In Law of Torts by Winfield and Jolowicz, 17th Edn., 2006, the author has referred to Performance Cars Ltd. v. Abraham [(1962) 1 QB 33 : (1961) 3 WLR 749 : (1961) 3 All ER 413 (CA)] , Baker v. Willoughby [1970 AC 467 :

(1970) 2 WLR 50 : (1969) 3 All ER 1528 (HL)] , Rogers on Unification of Tort Law : Multiple Tortfeasors, Great North Eastern Railway Ltd. v. Hart [2003 EWHC 2450 (QB)] , Mortgage Express Ltd. v. Bowerman & Partners [(1996) 2 All ER 836 (CA)] and observed thus:

"WHERE two or more people by their independent breaches of duty to the claimant cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the claimant to suffer a single, indivisible injury the position is more complicated. The law in such a case is that the claimant is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. If the claimant sues Defendant A but not B and C, it is open to A to seek 'contribution' from B and C in respect of their relative responsibility but this is a matter among A, B and C and does not affect the claimant. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It may be greatly to the claimant's advantage to show that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. Even where all participants are solvent, a system which enabled the claimant to sue each one only for a proportionate part of the damage would require him to launch multiple proceedings, some of which might involve complex issues of liability, causation and proof. As the law now stands, the claimant may simply launch proceedings against the 'easiest target'. The same picture is not, of course, so

attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role. Thus, a solicitor may be liable in full for failing to point out to his client that there is reason to believe that a valuation on which the client proposes to lend is suspect, the valuer being insolvent; and an auditor will be likely to carry sole responsibility for negligent failure to discover fraud during a company audit. A sustained campaign against the rule of joint and several liability has been mounted in this country by certain professional bodies, who have argued instead for a regime of "proportionate liability" whereby, as against the claimant, and not merely among defendants as a group, each defendant would bear only his share of the liability. While it has not been suggested here that such a change should be extended to personal injury claims, this has occurred in some American jurisdictions, whether by statute or by judicial decision. However, an investigation of the issue by the Law Commission on behalf of the Department of Trade and Industry in 1996 led to the conclusion that the present law was preferable to the various forms of proportionate liability.""

4.2. It is accordingly contended that the impugned award is not sustainable in the eye of law and requires interference of this Court.

5. Mr. S.B. Das, learned counsel appearing for the Claimants- Respondent Nos. 1 to 3 though on the other hand supported the impugned Judgment, but in course of hearing contended that the Claimants-Respondents will be fully satisfied, if this Court will assess the compensation amount at Rs.20,00,000/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization. With regard to award of 12% default interest, learned counsel appearing for the Respondents- Claimants contended that this Court can pass appropriate order in that regard.

6. Learned counsel appearing for the Appellant-Company left the aforesaid proposition made by the learned counsel for the Claimants-Respondent Nos. 1 to 3 to the discretion of this Court.

7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court while waiving out the default interest levied @ 12% per annum, is inclined to held the Claimants-Respondent Nos. 1 to 3 entitled to get compensation amount of Rs.20,00,000/- along with interest @ 6% per annum payable from the date of application till its realization. While holding so, this Court directs the Appellant-Company to deposit the compensation amount of Rs.20,00,000/- 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, the Tribunal shall disburse the same in favour of the Claimants-Respondent Nos. 1 to 3 proportionately in terms of the Judgement dtd.07.08.2023.

7.1. 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.20,00,000/- shall carry interest @ 7% starting from the expiry of the period of eight (8) weeks till the amount is so deposited.

7.2. 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.

8. The appeal is disposed of accordingly.

Digitally Signed                                         (BIRAJA PRASANNA SATAPATHY)

Reason: Authentication                                                Judge
Location: High Court of Orissa, Cuttack
Date: 24-Apr-2025 11:30:20Sneha