Mamata Nayak And Another vs Sunita Dhal & Others
2025 Latest Caselaw 4802 Ori

Orissa High Court

Mamata Nayak And Another vs Sunita Dhal & Others on 10 March, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                    MACA NO.932 of 2023
        (An appeal U/S. 173 of the M.V. Act, 1988).

   Mamata Nayak and another                ....      Appellants
                             -versus-
   Sunita Dhal & Others                    ....   Respondents

   For Appellants        :     Mr. K. Panigrahi, Advocate

   For Respondents       :     Mrs. N. Mohanty,
                               Advocate(R-2)
                               Mr. S.K. Dash, Advocate(R
                               Nos. 3-6)
       CORAM:
                   JUSTICE G. SATAPATHY

              DATE OF HEARING : 04.03.2025
              DATE OF JUDGMENT: 10.03.2025

G. Satapathy, J.

1. This appeal U/S. 173 of the Motors Vehicle

Act, 1988 (In short "the Act") by the Appellants is

directed against the impugned judgment dated

31.07.2023 passed by learned 3rd Motor Accident

Claims Tribunal-cum-Additional District Judge,

Bhanjanagar, Ganjam (In short the "Tribunal") in MAC

Case No. 21 of 2020 directing the Respondent No.2(R2)

to pay a sum of Rs. 18,87,244/- (Rs. Eighteen Lakhs

Eighty Seven Thousand Two Hundred Forty Four) only

together with the interest @ 6 % per annum w.e.f

18.02.2020 to the Appellants-Petitioners and

Respondent Nos.3 to 6(R3 to 6) proportionately in an

application U/S. 166 of the Act.

2. The facts in precise are that on 29.01.2020

at about 3PM, the husband of Appellant No.1(A1)

namely Sunila Nayak while being travelling as a

passenger in a Bus bearing Registration No. OR-05AB-

3530 from Rayagada to Berhampur died in the

accident, which occurred when the Bus lost control and

felled to a depth of 30 feet from the road near village

Palukhola, Taptapani Ghat due to rash and negligent

driving of the driver. On this incident, a police case was

registered in Pattapur PS Case No. 15 of 2020 and

charge sheet was submitted against the driver of the

offending Bus for offence U/Ss. 279/304-A of the IPC.

Accordingly, the present Appellants filed an application

U/S. 166 of the Act before the learned tribunal in MAC

Case No. 21 of 2020 and simultaneously the R3 to 6

filed another application in MAC No.38 of 2020 before

the 8th MACT, Ganjam at Aska for compensation due to

death of the deceased in the motor vehicular accident.

However, MAC No. 38 of 2020 was withdrawn and the

Applicants therein were arrayed as OP Nos. 3 to 6 in

MAC Case No. 21 of 2020. According to the claimants,

the deceased was aged about 28 years at the time of

death and he was working as a driver in a school bus

and earning @ 21,000/- per month. Accordingly, the

claimants in MAC Case No. 21 of 2020 claimed a sum of

Rs. 20,00,000/-, whereas the claimants in MAC No. 38

of 2020, who are R3 to 6 in this appeal claimed Rs.

10,00,000/- as compensation for the loss of the

deceased by impleading the owner and insurer of the

offending vehicle.

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

owner of the offending vehicle did not contest the claim

and was accordingly, set exparte on 29.09.2022, but

the insurer of the offending vehicle who is the R2 in this

appeal filed its written statement denying the claim of

the claimants with regard to age, income and

profession of the deceased. Additionally, the insurer-R2

also took a plea that it is not liable to indemnify the

owner of the offending vehicle, since the driver was not

having any valid and effective driving licence at the

time of accident. Be it noted, OP Nos. 3 to 6, while

being arrayed in the claim in MAC No. 21 of 2020 as

Opposite Parties came with a plea in their written

statement that the claimant-wife and son being paid

with a ex gratia compensation from Chief Minister's

Relief Fund did not pay a single pie to them and they

further claimed for payment of compensation to them

in equal proportion, since they are not only the natural

legal heirs of the deceased, but also dependents on

him.

4. After having considered the rival pleadings,

the learned Tribunal struck with three issues relating to

cause of death of the deceased & accident occurring

due to rash and negligent driving of the offending bus;

entitlement of the claimants and R3 to 6; and liability of

OP Nos. 1 and 2 to pay the compensation. The learned

Tribunal accordingly, allowed the parties to lead

evidence and in support of their claim, the claimants

examined Petitioner No.1 as PW1 and relied upon

document in Police Papers in Pattapur PS Case No. 15

of 2020 under Ext. 1 to 6, original DL particular and ID

issued to the deceased under Exts 8 & 9 as against sole

oral evidence of OP No.4 as OPW1 and copy of the

claim application in MAC Case No. 38 of 2020 by OP

Nos.3 to 6, however, no evidence has been tendered by

the insurer.

5. After analyzing the evidence on record

upon hearing the parties, the learned Tribunal passed

the impugned judgment directing R2 to pay the

compensation of amount of Rs.18,87,244/- to the

Appellants and R3 to 6 proportionately, but the

Appellants being aggrieved with the quantum of

compensation and apportionment of the claim have

preferred this appeal.

6. In assailing the impugned judgment, Mr.

Kalpataru Panigrahi, learned counsel for the Appellants

has submitted that impugned judgment suffers from

illegality on the question of quantum of compensation

and apportionment of the claim amount amongst the

parties inasmuch as the learned Tribunal has taken the

income of the deceased notionally on the basis of

minimum wage, but the principle remains that while

assessing the income of the deceased in absence of any

concrete evidence, the learned Tribunal has to assess

the income of the deceased on the basis of real wages

that were being paid to the deceased on the basis of

speculation and, therefore, the learned Tribunal ought

to have taken the income of the deceased at least @

Rs. 15,000/- per month, instead of Rs. 10,000/- per

month which was taken by the Tribunal, which further

fallen in error in adding 25% of the income of the

deceased as future prospects, despite having come to a

finding that the deceased was a self employed and 40%

of his income should be added as future prospects. It is

accordingly, urged by Mr. Panigrahi that the

compensation be quantified by taking into account the

income of the deceased @ Rs. 21,000/- per month by

adding 40% of the income of the deceased @ Rs.

15,000/- per month towards future prospect. Mr.

Panigrahi has further argued that out of R3 to 6, only

R3 being the mother of the deceased is entitled to

compensation, but R4 to 6 being major sister, minor

sister and major employed brother being not

dependents on the deceased are not entitled to any

compensation. Mr.Panigrahi has accordingly, prayed to

pass appropriate order to direct R2 to pay the enhanced

compensation by modifying the apportionment of the

compensation amongst the Appellants and R3 only after

excluding R4 to 6 as not entitled to compensation.

6.1. In reply, Mr. Soubhagya Kumar Dash,

learned counsel for the R3 to 6 has submitted that

the learned Tribunal has not committed any illegality

either in determining the compensation or apportioning

it amongst the Appellants and R3 to 6 inasmuch as the

act itself provides for compensation to the legal

representative of the deceased and it does not restrict

the right to claim compensation solely to the

dependents. He has further alternatively submitted that

even if the claimants are not financially dependents on

the deceased, they retain the right to seek

compensation for the loss of estate and other

conventional heads and, therefore, the plea as

advanced by the Appellants being untenable in the eye

of law may kindly be rejected.

6.2. On the other hand, Mrs. Nibedita Mohanty,

learned counsel for R2-insurer has in fact not replied to

the dispute of apportionment, but she has strongly

contended that the learned Tribunal has not committed

any illegality in determining the compensation,

however, she assails the finding of the learned Tribunal

for ordering penal interest @ 9% per annum, if the

award is not paid within two months of the receipt of

copy of the order. It is accordingly, submitted by Mrs.

Mohanty that in absence of any evidence of income of

the deceased, the Tribunal has rightly quantified the

compensation by taking the income of the deceased on

the basis of minimum wages and, therefore, such

finding needs no interference, but she prays to set

aside the direction for payment of penal interest. Mrs.

Mohanty has accordingly, prayed to dismiss the appeal.

7. After having considered the rival

submission upon perusal of evidence on record, since

the present appeal U/S.173 of the Act essentially an

appeal in the nature of an appeal U/S. 96 of the Code

of Criminal Procedure, 1908 (In short "the CPC") in

essence, this Court is under legal obligation to consider

all the issues both on facts and law as raised by the

parties and decide the appeal accordingly by re-

appreciating the evidence on record vis-a-vis the

pleadings of the parties. On a studied and comparative

scrutiny of rival submissions, two questions arise before

the Court for adjudication; viz firstly, the quantum of

compensation and secondly; the apportionment of

compensation between the Appellants and R3 to 6. Be

it noted, the learned Tribunal while adjudicating the

claim of the claimants has answered all the three issues

in favour of the claimants and R3 to 6, but these

findings have neither been challenged by the insurer

nor by the owner. Further, the police paper under Exts.

1 to 7 if read together with the oral evidence, it gives

rise to a conclusion by preponderance of probability

that the deceased died in the accident due to rash and

negligent driving of the driver of the offending vehicle

and, therefore, the learned Tribunal on appreciation of

evidence has rightly held that the deceased died in a

motor vehicular accident due to rash and negligent

driving of the driver of the offending Bus, however, the

maintainability of the claim has not been challenged by

any of the parties and thus, the issue of maintainability

of the claim having been given a quietus by the parties,

the findings thereon by the learned Tribunal has

attained finality and needs no interfere by this Court in

this appeal.

8. Once the claim is found maintainable, the

next question comes for adjudication is the quantum of

compensation. In quantifying the compensation, the

Tribunal is primarily required to ascertain the loss of

dependency which can be calculated by the formula laid

down by the Apex Court in Sarla Verma Vrs. Delhi

Transport Corporation;(2009) 6 SCC 121 which

prescribes a three steps formula in which the first step

is for determination of the income of the deceased per

annum. It is prescribed therein that the income of the

deceased per annum should be determined by making

deduction of the amount which the deceased could

have spent on himself by way of personal and living

expenses and the net amount could be considered as

the contribution of the deceased to the depending

family. Accordingly, a formula has been provided in

Sarla Verma(supra) for determining the deduction

towards the personal living expenses of the deceased

person and it has been prescribed therein that there

should be a deduction of 1/3rd from the actual income

of the deceased, where the number of dependent family

members is two to three, 1/4th where the number of

dependent family members is four to six and 1/5th

where the number of dependent family members

exceed six, but it is further clarified therein that when

the deceased died as a bachelor, normally 50% of

deduction is the rule towards the personal & living

expenses of the deceased.

9. Before applying the rule as prescribed in

Sarla Verma(supra) for determining the deduction

towards personal living expenses of the deceased, it

appears that although there are six claimants to be

dependent on the deceased, but it is claimed on behalf

of widow wife and son of the deceased as claimants

that except the mother of the deceased, none other

such as the brother and sisters are entitled to

compensation as dependents of the deceased. This

conundrum persuades this Court to see the pleadings

and evidence of the claimants. The specific plea of R3

to 6 in their claim for compensation is that after the

death of his father, the deceased being the elder son,

Karta and only earning member of the family and they

being the widow mother, major unmarried sister, minor

sister and younger brother were fully dependent upon

the earning of the deceased along with the Appellants

and now they are beggar in the street. The issue in this

question spelt out a dispute between the widow and her

child on one side and widow mother, major and minor

sisters and brother on the other side asserting their

right to compensation, but the mother, brother and

sisters of the deceased are also claiming share in the

compensation in equal proportion with that of widow

and infant son of the deceased who also lay their claim

on the compensation along with widow mother of the

deceased, but to the exclusion of sisters and brother.

10. In support of their claim, R3 to 6 relies

upon the decision in National Insurance Company

Ltd. Vrs. Birender and others; AIR 2020 SC 434,

wherein after surveying its earlier decision and the

distinction between right to apply for compensation and

entitlement to compensation as well as on adverting to

the provision of Sec. 165 of the Act, the Apex Court by

interpreting Section 2(11) of the Code of Civil

Procedure, 1908 (In short "CPC") has held thus in

paragraph-15:-

"15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs.1,00,000/ and Rs.1,50,000/ per

annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years."

11. True it is that in the present case, R3 to 6

being the legal representative of the deceased have a

right to apply for compensation, but fact remains that

whether they can be considered as a dependent on the

deceased to have a share in the amount of

compensation under the heading of "loss of

dependency" which can be answered by placing reliance

on the decision in New India Assurance Company

Ltd. Vrs. Anand Pal and others; 2024 (1) T.A.C. 3

(S.C.), wherein in a similar situation with regard to

entitlement of brothers and sisters as dependents upon

the deceased, the Apex Court after referring to

paragraph 31 of the Sarla Verma(supra) has held in

paragraph 4 and 5 of the judgment as under:-

"4. In support of his contention, Mr. Kumar relies on Sarla Verma (Smt.) & Ors. Vrs. Delhi Transport Corporation & Another; (2009) 6 SCC 121, wherein this Court held as under:

"31.Where the deceased was a bachelor and the claimants are the parents, the deduction follows

a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.

5. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents as because they will either be independent and earning, or married, or be dependent on the father."

12. After a cumulative reading of principle laid

down by the Apex Court in the decisions referred to

above, this Court now adverts to see the impugned

judgment with regard to the entitlement of R3 to 6 as

dependents. The learned Tribunal on the last part of

paragraph-9 of the impugned judgment by considering

the evidence has held that R4 to 6 are all entitled to get

compensation, but since R5 (Ranima Nayak) being

married and leading conjugal life with her husband; and

R6 being a major employed, equity must not prevail so

far as quantum of compensation is concerned. While

observing so, the learned Tribunal has taken into

consideration the evidence of OPW1. For clarity, the

relevant part of consideration of the evidence of OPW1

in judgment by the Tribunal is extracted as under:-

"She (OPW1) further stated in her cross- examination that Ranima (Respondent No.5) is now married and is having a child. She is now staying with her husband in his house and she got married after the death of Sunil. Cross-examination of DW.1 (OPW1) further reveals that her younger brother Samil (Respondent No.6) is now working in a shop after the death of Sunil and is now managing the expenditure of their family. From the available documents and from the oral evidence of Respondent No.4, it is now clear that at the time of death of Sunil Nayak, Respondent No.3 Kuni Nayak who is the widow mother of the deceased was staying with Sunil Nayak and Sunil Nayak was taking care of her. Similarly, Respondent No.4 Minati Nayak who is the elder sister of the deceased was also sharing the same household since she is not married is also the rightful claimant on the compensation. Respondent No.5 Ranima Nayak was minor at the time of accident and in the meantime she has already

got married and is living with her husband in his house. Similarly, Respondent No.6 was a minor and was unemployed at the time of death of his elder brother Sunil Nayak. But, after the death of Sunil Nayak he (R6) is managing the affairs of his family."

13. On a careful scrutiny and conspectus of the

aforesaid facts and evidence which has not been

disputed by any of the parties, it appears that R3 is the

widow mother and R4 is the major unmarried sister of

the deceased, but since there being some evidence that

R4 was depending on the income of the deceased,

although she being major unmarried daughter is

entitled to compensation under the heading of "loss of

dependency" in addition to the widow mother since the

law laid down by the Apex Court in Sarla

Verma(supra) which was reiterated in Anand

Pal(supra) focuses on the evidence to decide the issue

of dependency of brothers and sisters and there being

evidence in this case to indicate about major married

sister Minati Nayak depending on the income of the

deceased brother is entitled to compensation under the

heading of "loss of dependency", but apportionment of

the compensation amount would be considered at

appropriate stage by taking into account their life

expectancy and requirements in addition to the fact

that their requirement can also be managed by R6

being a major earning son of the family right now,

however, R5 and 6 are not entitled to compensation

under the heading of "loss of dependency", but they

may have the right to a share on the non-conventional

heads of loss of estates as well filial consortium towards

loss of love and affection of their deceased brother.

14. In examining the findings of the learned

Tribunal with regard to income of the deceased in the

light of the contention canvassed by the learned

counsel for the Appellants, there appears no dispute

that the learned Tribunal has assessed the income of

the deceased by wholly relying upon the minimum rates

of wages per day in terms of the notification of labour

department and accordingly, the learned Tribunal has

calculated the monthly income of the deceased @ Rs.

10,096/- per month, but the copy of the claim

application of the Appellants and that of R3 to 6 as

supplied by the learned counsel for the parties reveal

that the Appellants have showed the monthly income of

the deceased @ Rs. 21,000/- per month in their claim

application, whereas R3 to 6 have described the

monthly income of the deceased @ Rs. 15,000/- per

month + Rs. 100/- DA per day. However, no evidence

has been produced by either of the parties to show the

monthly income of the deceased for a particular

amount. In absence of any evidence with regard to the

profession/avocation of the deceased, the learned

Tribunal has rightly taken the deceased as skilled

labour by speculation while applying the minimum rates

of wage per day fixed for skilled labour and, therefore,

such finding being on sound application of mind and law

needs no interference. This Court, therefore, takes the

monthly income of the deceased @ Rs. 10,096/- per

month, but the learned Tribunal has fallen in error while

adding 25% of such income towards future prospects

even after holding that since the deceased was self

employed, 40% of his income should be added towards

future prospects by relying upon the decision of Apex

Court in National Insurance Company Ltd. Vrs.

Pranay Sethi and others ; (2017) 16 SCC 680

since the deceased was aged about 31 years at the

time of death. Accordingly, the deceased's annual

income would be Rs. 10,096/- X 12= Rs. 1,21,152/-,

but since the deceased was aged about 31 years, his

net monthly income by adding 40% towards future

prospects would be Rs. 1,21,152/+40% of 1,21,152/=

Rs.1,69,613/-.

15. Applying the principle of Sarla

Verma(supra), since the deceased was considered to

have four dependents, 1/4th of the aforesaid income is

to be deducted from it to determine the "loss of

dependency". Accordingly, the "loss of dependency" per

year is calculated @ Rs. 1,69,613- Rs.42,403(1/4th of

Rs.1,69,613)=Rs.1,27,210/-. Hence, the correct figure

under the heading of "loss of dependency" would come

to Rs. 1,27,210/- X 16 (multiplier)= Rs. 20,35,360/-.

In addition, the claimants are also entitled to receive

Rs. 84,000/- towards non conventional heads of loss of

consortium, estate and funeral expenses by adding

10% increase on the amount of Rs. 70,000/- for every

three years for two times for death having occurred in

the year 2020 in terms of the law laid down by the

Apex Court in Pranay Sethi (supra). Accordingly, the

modified compensation amount is calculated at

Rs.20,35,360/+Rs. 84,000/=Rs. 21,19,360/-(Rupees

Twenty One Lakhs Nineteen Thousand Three Hundred

Sixty) only. In addition, an interest @ 6% per annum is

applicable to this case, but the imposition of penal

interest @ 9% per annum on the compensation amount

being not sustainable is hereby set aside since Sec. 171

of the Act only contemplates about interest, but not

penal interest.

16. As a consequence of the discussion made

hereinabove, the compensation amount is recalculated

at Rs. 21,19,360/- together with interest @ 6 % per

annum, but the apportionment of the award is to be

made accordingly by taking into consideration the fact

discussed in paragraph No.13. Thus, in case of payment

of modified awarded amount as calculated above, 25%

of it in the name of widow of the deceased for five

years; 30% of it in the name of minor son of deceased

till he attains majority; 10% of it in the name of mother

and 5% of it in the name of unmarried sister (Minati

Nayak) of the deceased for five years be deposited in

any Nationalized Bank without any facility of premature

withdrawal, unless being permitted by the learned

Tribunal and 20% of the awarded amount be disbursed

to the widow and son of the deceased in cash and out

of rest 10% of the awarded amount, 5% be disbursed

to the mother in cash and rest 5% would be disbursed

to the two sisters and brother of the deceased

proportionately. It is further made clear that the Court

fee in the appeal be realized from the Appellants on

awarded amount.

17. In the result, the appeal stands allowed on

contest, but in the circumstance, there is no order as to

costs. Ergo, the recalculated award and its

disbursement to the parties are accordingly modified to

Designation: Jr. Stenographer (G. Satapathy)

Location: HIGH COURT OF ORISSA Date: 10-Mar-2025 17:49:15 Judge Orissa High Court, Cuttack, Dated the 10th March, 2025/Priyajit