Motor Vehicles Act vs Manjulata Panda And Others
2025 Latest Caselaw 2153 Ori

Orissa High Court

Motor Vehicles Act vs Manjulata Panda And Others on 7 January, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   MACA No.1080 of 2024

   (In the matter of application under Section 173 of the
   Motor Vehicles Act, 1988).
   Branch Manager, Oriental         ...          Appellant
   Insurance Co. Ltd.,
   Sambalpur
                          -versus-

   Manjulata Panda and Others         ...      Respondents

   For Appellant           : Mr. P.K. Mahali, Advocate

   For Respondents         : Mr. S. Bahadur, Advocate
                             (Respondent Nos.1 - 5)
                             Mr. M.K. Swain, Advocate
                             appearing on behalf of
                             Mr. S.C. Sahoo, Advocate
                             (Respondent No.6)

       CORAM:
                   JUSTICE G. SATAPATHY

    DATE OF HEARING & JUDGMENT:07.01.2025(ORAL)

G. Satapathy, J.

1. This is an appeal Under Section 173 of the

MV Act, 1988 (in short "the Act") by the appellant-

insurer challenging the impugned judgment dated

03.05.2024 passed by the learned 4th Motor Accident

Claim Tribunal Sundargarh (in short, "the learned

Tribunal") in M.A.C Case No.42/240 of 2021-22

granting a sum of Rs.16,48,664/- along with simple

interest at the rate of 6% per annum w.e.f the date of

filing the application on 21.09.2021 in an application

Under Section 166 of the Act.

2. Facts in precise are that on 14.06.2019 at

about 09.00 P.M, while one Rashmi Mukunda Panda

(hereinafter referred to as "the deceased") was

returning to his home at village Lephripada on his

Motor Cycle OD-16B-2055, on the way at

Mahadevpada, Giringkela, one Auto Rickshaw OD-16-F-

1184 (hereinafter referred to as "offending vehicle")

suddenly came from the opposite side and dashed the

deceased as a result the deceased sustained severe

bleeding injuries and succumbed to death at DHH,

Sundergarh. Accordingly, Lephripada P.S. Case No. 64

of 2019 was registered on the FIR presented by one

Ballav Kumar Panda and the criminal case was

investigated into which culminated the submission of

charge-sheet against the driver of the offending vehicle

namely Sushanta Kumar Patel. On this accident, the

legal representatives of the deceased filed an

application under Section 166 of the Act claiming

compensation of Rs.23,00,000/- by impleading the

owner and insurer of the offending vehicle for the loss

of their sole bread earner which came to be registered

as MAC Case No. 42 of 2021. According to the

claimants-Respondent No. 1 to 5, the deceased was

aged about 46 years and he was working as a

Supervisor at Dulanga Coal Mines with salary at the

rate of 15,340/- per month.

2.1. In response to the notice of the claim, the

owner of the offending vehicle-cum-Respondent No.6

contested the claim by filing written statement denying

all the allegations including the involvement the

offending vehicle in the accident. However, the insurer-

cum-appellant also contested the claim of the R 1 to 5

by filing written statement denying its liability to

indemnify the owner of the offending vehicle on the

ground that the said vehicle was not involved in the

accident and the driver of the vehicle was not having

any valid Driving License and the offending vehicle was

plying without permit. While praying to dismiss the

claim of R 1 to 5, the appellant-insurer had also

disputed the income of the deceased in the written

statement.

2.2. Basing on the rival pleadings, the learned

Tribunal struck five issues and allowed the parties to

lead the evidence. Accordingly, the claimants examined

two witnesses including the wife of the deceased as

PWs 1 & 2 and relied upon in evidence the police

papers in Lephripada P.S. Case No.64 of 2019 under

Ext. 1 to 7 as against the only documentary evidence

by the appellant-insurer under Ext.A which is the

insurance policy of the offending vehicle valid at the

time of the accident. After having duly considered the

evidence and pleadings on record upon hearing the

parties, the learned Tribunal passed impugned

judgment directing the Appellant-Insurer to pay

compensation of Rs.16,48,664/- together with the

simple interest at the rate of 6% per annum w.e.f. the

date of filing of the claim. Being aggrieved with the

aforesaid judgment, the insurer has preferred this

appeal.

3. In the course of hearing, Mr. Prasant

Kumar Mahali, learned counsel for the appellant,

however, challenges the impugned award on three

grounds; firstly, planting of the Auto Rickshaw in the

accident, secondly, the negligence of the deceased by

not wearing the headgear (helmet) and thirdly, the

quantum of compensation. It is also argued by Mr.

Mahali that since the M.V. report discloses the

involvement of only the motor cycle, but not the

offending vehicle and thereby, the insurer is absolved

of liability to pay compensation to the claimants. In

elaborating, Mr. Mahali submits that although the FIR

was lodged against unknown vehicle, but subsequently

the offending vehicle-cum-Auto Rickshaw was planted

by the claimants after 8 months of the accident only to

get the compensation. It is also submitted by Mr.

Mahali that since the deceased was not wearing the

helmet at the time of the accident, he, thereby, had

contributed to the negligence and on that score, the

claimants are not entitled to full compensation, rather

the deceased being guilty of negligence and thereby,

the claimants are at best entitled to 50% of the

compensation amount as determined by the learned

Tribunal. Further Mr. Mahali argues and submits that

since the claimants could not establish that the

deceased was serving as a Supervisor and thereby,

taking the profession of the deceased as a skilled

labour is contrary to the established principle of law

and, therefore, at best the deceased can be considered

to be an unskilled labour and the quantum of

compensation is accordingly liable to be

reduced/modified on that ground. Further, Mr. Mahali

submits that since Rs. 2,37,000/- has been granted to

the claimants under the non-pecuniary head of

damages, the same required to be reduced to only

Rs.84,000/- after adding 10% enhancement to

Rs.70,000/- which is prescribed under non-pecuniary

head of damages, for six years in view of the law laid

down by the Apex Court in National Insurance

Company Vrs. Pranay Sethi and others; (2018) 69

OCR (SC) 1 and Shri Ram General Insurance Co.

Ltd Vrs. Bhagat Singh Rawat and others disposed

of on 27.03.2023 in Civil Appeal Nos. 2410-

2412/2023 [SLP [C] Nos. 11669-11671/2020].

Mr. Mahali in the alternative prays to reduce the

quantum of compensation by taking into account the

aforesaid submissions.

3.1. On the other hand Mr. Samarendra

Bahadur learned counsel for the claimants-cum-R-1 to

5 submits that there is neither any evidence nor

pleading by the insurer to say that the Auto Rickshaw

was planted or the deceased was not wearing any

helmet and thereby, contributed to the negligence.

Further, Mr.Bahadur submits that since the MVI Report

has not been relied upon by the insurer in the

proceeding before the Tribunal, the aforesaid

contentions of the appellant is liable to be rejected at

the threshold. Mr. Bahadur, however, does not

seriously dispute about the excessive compensation

granted under the non-conventional head of general

damages and he agrees with the principle that the

claimants are entitled to Rs. 84,000/- under that head.

Mr. Bahadur, accordingly, prays to pass appropriate

order by modifying the compensation.

3.2. Mr. Manas Kumar Swain, learned counsel

appearing on behalf of Mr. Subash Chandra Sahoo,

learned counsel for the R-6, however, submits that

since no liability has been fixed upon the owner, the

owner of the offending vehicle being the insured with

the appellant is not liable to pay the compensation to

the claimants and the learned tribunal has rightly

saddled the liability of payment of compensation on the

insurer-appellant. Mr.Swain accordingly prays to pass

appropriate order.

4. After having considered the rival

submissions upon perusal of record, the dispute

between the parties now boils down only to three

grounds; firstly, whether the Auto Rickshaw was

planted and only the motor cycle was involved in the

accident; secondly, the deceased had contributed to the

negligence by not wearing the helmet; and lastly,

whether the award of compensation as granted by the

Tribunal is liable to be modified or reduced. In

addressing the first ground, it goes without saying that

the insurer-appellant has neither pleaded in its written

statement nor led any evidence to the effect that the

Auto Rickshaw was planted in the accident and only the

motorcycle was involved in the accident. Further, the

appellant-insurer has also not relied upon the MVI Report,

and it is raised for the first time before this Court and,

therefore, such plea cannot be accepted at this stage.

Besides, facts which have not been pleaded, evidence

thereon cannot be let in and even evidence, if any has

been let in on such facts which have not been pleaded

can be ignored. Thus, the appellant-insurer having not

relied upon MVI report in its pleading is precluded to raise

such issue in this appeal for the first time. The plea of the

appellant-insurer about planting of Autorickshaw is not

acceptable and is accordingly rejected. It is equally true

that the appellant-insurer had never pleaded that the

deceased had contributed to the accident by not wearing

helmet and thereby, such plea of the appellant-insurer

being taken without any pleading could be legally ignored

on the principle of pleadings reiterated above. Further,

the learned Tribunal after taking into account the oral as

well as documentary evidence of the police paper as

exhibited under Exts. 1 to 7 has rightly held that the

accident occurred due to rash and negligent driving of the

driver of the offending vehicle and the deceased died in

such accident. Once it is established that the deceased

died in an accident due to rash and negligent driving of

the offending vehicle, the claim is maintainable. In this

case, the tribunal has rightly held that the claim is

maintainable.

5. Once the claim is found to be maintainable,

the next question comes for adjudication is as to what

amount the claimants are entitled to as compensation

and as to who is liable to pay such compensation. In this

case, the pleadings of the claimants are that the

deceased was working as supervisor, but the appellant-

insurer seriously disputes the profession of the deceased

as a supervisor. However, on perusal of the evidence on

record, this Court does not find a single word with regard

to disputing the profession of the deceased to be a

Supervisor and even, no suggestion was given to the

claimant-witness examined in this case to indicate that

the deceased was not serving as a supervisor. However,

the learned Tribunal has considered the deceased to be

supervisor, but in absence of concrete proof of income of

the deceased, the Tribunal has rightly relied upon the

daily wages notification to assess the income of the

deceased. This Court, however, does not find any error

apparent on such finding of the learned Tribunal and

since the deceased was proved to be a supervisor, his

income can be assessed as a skilled labour and at the

time of accident, the daily wages for skilled labour was

Rs.388/- which was rightly taken by the Tribunal and,

therefore, no other ground being advanced to dispute the

assessment of income of the deceased, the loss of

dependency has been rightly calculated by the Tribunal.

Now coming to the next issue of the award of

compensation under the non-pecuniary head of general

damages, it is an admitted law that the claimants are

only entitled to Rs. 84,000/- in this case by taking into

consideration that the accident occurred around 6 years

back and revision of 10% for every three years in the

amount of Rs. 70,000/- under the head of general

damages is permissible. Hence, the claimants are entitled

to Rs.84,000/- under the head of general damages and,

therefore, the claimants are entitled to compensation of

Rs.14,18,664/-+Rs.84,000/-=Rs.15,02,664 together with

simple interest at the rate of 6% per annum with effect

from the date of filing of the claim application.

6. In the result, the claim appeal is allowed in

part on contest, but there is no order as to costs. The

impugned award of compensation is modified to the

extent of Rs.15,02,664/- together with simple interest

@ 6% w.e.f. 21.09.2021 which shall be deposited by

the appellant-insurer before the learned Tribunal within

60 days hence.

It is made clear that the statutory deposit

be refunded back to the appellant-insurer on proof of

deposit of the modified compensation amount before

the tribunal, who shall disburse the same

proportionately in terms of its award.

(G. Satapathy) Judge

Location: HIGH COURT OF ORISSA

Orissa High Court, Cuttack, Dated the 7th day of January, 2025/Priyajit