Orissa High Court
Unknown vs Dhruba Charan Das And on 10 January, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.358 of 2024
(In the matter of application under Section 173(1) of
the Motor Vehicles Act, 1988).
The Oriental Insurance ... Appellant
Company Ltd., Bhubaneswar
-versus-
Dhruba Charan Das and ... Respondents
others
For Appellant : Mr. G.P. Dutta, Advocate
For Respondents : Mr. P.K. Mishra, Advocate
(Respondent Nos.1 to 3)
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:10.01.2025(ORAL)
G. Satapathy, J.
1. This is an appeal U/S.173 of the Motor
Vehicles Act, 1988 (in short, "the Act") by the
appellant-insurer challenging the impugned judgment
dated 27.09.2023 passed by the learned 1st Motor
Accident Claim Tribunal, Puri (in short, "the learned
Tribunal") in MAC Case No.68 of 2014 granting a sum
of Rs.8,43,000/- (Rupees Eight Lakhs Forty Three
Thousand) along with simple interest at the rate of 6%
per annum w.e.f the date of filing the application on
02.04.2014 in an application U/S.166 of the Act.
2. Facts in precise are that on 25.02.2014 at
about 2 PM near Alipada Chhaka one Motor Cycle
bearing Regd. No.OR-13-G-5343 (hereinafter referred
to as the offending vehicle) dashed the other Motor
Cycle from behind, in which Bhami Das (hereinafter
referred to as the deceased) was sitting as a pillion
rider, by coming rash and negligently in a high speed,
as a result the deceased died. Accordingly, Puri Sadar
PS Case No.48 of 2014 was registered, which
culminated in submission of charge-sheet against the
accused driver of the offending motor cycle namely
Rajat Kumar Sahoo for commission of offences
U/Ss.279/304-A of IPC. On this accident, the legal
representatives of the deceased-cum-R1 to 3 filed an
application U/S.166 of the Act claiming compensation of
Rs.8,75,000/- (Rupees Eight Lakhs Seventy-five
Thousand) by impleading the owner and insurer of the
offending motor cycle for the loss of their sole bread
earner. According to the claimants-R1 to 3, the
deceased was a married women aged about 45 years
old and was doing milk business by keeping six cows
and earning Rs.9,000/- per month.
2.1. In response to the notice of claim, the
owner of offending motor cycle-cum-R4 contested the
claim by filing written statement denying all the
allegations made against the rider of the offending
motor cycle and inter-alia pleading that he is not liable
to pay the compensation, rather the appellant-insurer is
contractually liable to indemnify him since the offending
motor cycle was duly insured with it at the relevant
time of accident. However, the appellant-insurer
contested the claim of R1 to 3 by filing a separate
written statement denying its liability to indemnify the
owner of the offending vehicle on the ground of
planting of offending motor cycle in the alleged accident
and the accident occurred due to negligence of the
Motor Cycle in which the deceased was coming as a
pillion rider. In addition, the appellant-insurer
challenged the income and age of the deceased.
2.2. Basing on the rival pleadings, the learned
Tribunal struck four issues and allowed the parties to
lead the evidence. Accordingly, R1 to 3 examined two
witnesses including the claimant-R1 and got exhibited
the certified copy of the police papers in Puri Sadar PS
Case No.48 of 2014 under Exts.1 to 5 as against no
evidence whatsoever by the appellant-insurer. After
having duly considered the evidence and pleadings on
record upon hearing the parties, the learned Tribunal
passed the impugned judgment directing the appellant-
insurer to pay compensation of Rs.8,43,000/- (Rupees
Eight Lakhs Forty Three Thousand) 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. G.P. Dutta,
learned counsel for the appellant, however, seriously
disputes the quantum of compensation and submits
that the deceased being income less, the claimants are
entitled to some nominal compensation, but the learned
Tribunal has granted exorbitant compensation to the
claimants. It is, however, further submitted by Mr.
Dutta that since the deceased was coming on a Motor
Cycle as a pillion rider and the rider of such Motor Cycle
being guilty of rash and negligent driving, the claim of
the R1 to 3 is not solely maintainable against the
appellant-insurer and at best the appellant-insurer can
be saddled with a liability to pay 50% of the
compensation amount on the principle of 50:50
contributing negligence of the two Motor Cycles. Mr.
Dutta further submits that the appellant-insurer had
made an application before the learned Tribunal to
summon the rider of the vehicle in which the deceased
was sitting to depose evidence, but that has been
rejected without any reasoning and, thereby, the truth
remains obliterated. Mr. G.P. Dutta accordingly, prays
to modify the compensation amount.
3.1. On the other hand, Mr. Pradeep
Kumar Mishra, learned counsel for the claimants-cum-
R-1 to 3 submits that the learned Tribunal has not
committed any illegality in awarding the compensation
of Rs.8,43,000/- (Rupees Eight Lakhs Forty Three
Thousand) by making a reasonable calculation and,
therefore, the impugned judgment calls for no
interference. None appears for the R4 despite valid
service.
4. After having considered the rival
submissions upon perusal of record, the dispute
between the parties now narrowed down only to the
quantum of compensation and the extend of liability of
the appellant-insurer to pay the compensation. It is no
doubt claimed by the appellant-insurer that its
application for summoning the rider of the Motor Cycle
in which the deceased was travelling was rejected, but
even if had it been allowed, the appellant-insurer could
not have avoided the liability to pay compensation to
the claimants, in view of the admitted fact that the
appellant is admittedly the insurer of the offending
motor cycle. Moreover, the appellant-insurer in its
written statement has never taken any plea for
contributory negligence or the negligence of the
deceased in contributing to the accident, however, no
evidence has even been tendered by the appellant-
insurer to prove anything against the claimants. On the
other hand, the learned Tribunal after duly appreciating
the evidence on record including documentary evidence
has found in the impugned judgment that the deceased
died due to rash and negligent act of the rider of the
offending vehicle and the appellant being admittedly
the insurer of the offending contributory is contractually
liable to indemnify the owner of the offending
contributory under the contract of agreement of the
insurance policy and, it thereby, cannot avoid its
liability. True it is that the appellant-insurer has
advanced the plea of contributory negligence, but no
evidence was tendered to prove it nor was any material
produced before the learned Tribunal to evidence that
the Motor Cycle in which the deceased was coming had
contributed to the accident. In absence of any pleading
or evidence on record, the appellant-insurer is solely
liable to pay the compensation for the damages caused
by the insured-cum-owner of the offending motor
cycle(R4).
5. Once the appellant-insurer is found liable
to indemnify the owner of the offending motor cycle for
the accident causing death of the deceased, the next
question comes for discussion is the quantum of
compensation, which has been seriously disputed by
the appellant-insurer in this appeal. Adverting to such
point, it appears that the learned Tribunal had
considered and taken the deceased to be a daily
labourer, but while computing her income, the learned
Tribunal took the monthly income of the deceased @
Rs.5,200/- on the basis of wage @ Rs.200/- per day for
26 days in a month, however, the minimum wage for
daily labourer at the prevailing time of accident was
Rs.150/- per day and, therefore, the monthly income of
the deceased would have been calculated at Rs.4,500/-
per month. Since the age of the deceased at 45 years
having not been validly disputed, the monthly income
of the deceased could have been calculated at
Rs.4,500/- + 25% of Rs.4,500/- towards future
prospects. Thus, the monthly income of the deceased
would come around Rs.5,625/- for the purpose of
computing compensation. Since the deceased was
having three dependents, 1/3rd of her income has to be
deducted towards her personal and living expenses
and, therefore, after deducting such amount towards
personal and living expenses, the net monthly income
of the deceased would come around 2/3rd of Rs.5,625/-
= Rs.3,750/- and, therefore, the annual loss of
dependency of the claimants would be calculated at
around Rs.3,750/- x 12 = Rs.45,000/-. Since the
deceased was aged about 45 years, the appropriate
multiplier would be 14 and, therefore, the total loss of
dependency of the claimants would be assessed at
Rs.45,000/- x 14 = Rs.6,30,000/-. It is not disputed
that the accident occurred in the year 2014 and,
thereby, the claimants are also entitled to 10% revision
in the non-pecuniary head of damages at Rs.70,000/-
in every three years and, thereby, the claimants-R1 to
3 are entitled to Rs.91,000/- (Rs.70,000/- + 3 x 10%
of Rs.70,000/-) under the head of general damages.
Hence, the claimants are entitled to compensation of
Rs.6,30,000/- + Rs.91,000/- = Rs.7,21,000/-. In
addition, the claimants are also entitled to simple
interest at the rate of 6% per annum.
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.7,21,000/- together with simple interest @
6% w.e.f. 02.04.2014 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 to the claimants in terms of its award.
(G. Satapathy)
Judge
Location: High Court of Orissa
Orissa High Court, Cuttack,
Dated the 10th day of January, 2025/Subhasmita
