Smt. Jharana Pakhira vs Chandra Mohan Parmanik &
2025 Latest Caselaw 4970 Ori

Orissa High Court

Smt. Jharana Pakhira vs Chandra Mohan Parmanik & on 13 March, 2025

Author: Biraja Prasanna Satapathy

Bench: Biraja Prasanna Satapathy

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                    MACA NO.933 of 2023

   In the matter of an application under Section 173 of Motor
   Vehicle Act, 1988.
                          ..................

  Smt. Jharana Pakhira                  ....                   Appellant

                                 -versus-

  Chandra Mohan Parmanik &              ....              Respondents
  Another


        For Appellant            :   M/s. B.B. Singh, P.B. Singh & N.
                                     Panigrahi, Advocate


        For Respondent No.2:         M/s. A.A. Khan, S.K. Mishra,
                                     S.K. Sahoo, J.P. Tripathy,
                                     Z.A. Khan and S. Mohanty,
                                     Advocate


PRESENT:


        THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY

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   Date of Hearing:20.03.2025 and Date of Judgment: 20.03.2025
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   Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Mode.

2. Perused the office note. Since notice on Respondent No.3 has been duly served on her jointly living sister, notice against the said respondent is treated as sufficient.

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3. Heard learned counsel appearing for the parties.

4. The present appeal has been filed inter alia challenging Judgment dtd.17.07.2023 so passed by the learned 3rd M.A.C.T, Balasore in MAC Case No.68 of 2021. The aid claim application was filed by the claimant-appellant seeking grant of compensation in respect of the death of the deceased Sapan Pakhira in a road accident which took place on 03.02.2021.

5. It is the case of the appellant-claimant that the deceased was travelling in a auto-rickshaw bearing Regd. No.OD-01AG-0788. While the said auto-rickshaw was going on the left side of the road, the truck bearing Regd. No.OD-01D-9411 caused the accident, coming from the front side. It is contended that since because of the negligence on the part of the driver of both the vehicles, the accident occurred and the deceased succumbed to the injury, on the ground of composite negligence, the Tribunal should have held the respondent-company under which the auto-rickshaw was insured, to pay the compensation and recover the same from the owner of the offending truck bearing Regd. No.OD-01D-9411.

5.1. In support of the submission, reliance was placed on a decision of the Hon'ble Apex Court in the case of Khenyei Vs. New India Assurance Co. Ltd. & Others, 2015(2) T.A.C 677 (S.C ). Hon'ble Apex Court in the said decision in para 18 has held as follows.

18. This Court in Challa Bharathamma & Nanjappan (Supra) has dealt with the breach of policy

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conditions by the owner when the insurer was asked to pay the compensation fixed by the Tribunal and the right to recover the same was given to the insurer in the executing Court concerned if the dispute between the insurer nin the executing Court concerned if the dispute between the insurer and owner was the subject-matter of determination for the Tribunal and the issue has been decided in favour of the insured. The same analogy can be applied to the instant cases as the liability of the joint tort feasor is joint and several. In the instant case, there is determination of inter se liability of composite negligence to the extent of negligence of 2/3rd and 1/3rd of respective drivers. Thus, vehicle-trailor-truck which was not insured with the insurer, was negligent to the extent of 2/3rd. It would be open to the insurer being insurer of the bus after making payment to claimant to recover from the owner of the trailor-truck the amount to the aforesaid extent in the execution proceedings. Had there been no determination of the inter se liability for want of evidence or other joint tor-feasor had not been impleaded, it was not open to settle such a dispute and to recover the amount in execution proceedings but the remedy would be to file another suit or appropriate proceedings in accordance with law.

What emerges from the aforesaid discussion is as follows:

(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort-feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

(ii) In the case of composite negligence, apportionment of compensation between two tort-feasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

(iii) In case all the joint tort-feasors have been impleaded and evidence is sufficient, it is open to the Court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the

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Court/Tribunal, in main case one joint tort-feasor can recover the amount from the other in the execution proceedings.

(iv) It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort-feasor in independent proceedings after passing of the decree of award.

5.2. It is contended that since for the negligence of both the vehicles, the accident occurred and accordingly, the deceased died, the Tribunal should have held Respondent No.2-company liable to pay the compensation and granted right of recovery as against the owner of the offending truck. However, the Tribunal while assessing the compensation saddled the same on the owner of the offending truck, the Respondent No.3.

5.3. It is also contended that while assessing the compensation at Rs.8,60,000/-, the Tribunal wrongly took the income of the deceased at Rs.7,700/- per month though at the relevant point of time, the wages of an unskilled labourer was Rs.308/- per day. It is also contended that taking into account the age of deceased which was taken by the Tribunal, future prospect should have been calculated at 25% in place of 15%.

5.4. It is contended that had the Tribunal assessed the daily income of the deceased at Rs.308/- per day and allowed 25% towards future prospects, the compensation amount should have been assessed at Rs.10,96,400/- along with interest as awarded.

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6. Mr. A.A. Khan, learned counsel appearing for the Respondent No.2 company on the other hand basing on the materials available before the Tribunal contended that the accident in question took place on 03.02.2021 and the same was reported before the I.I.C., Balasore P.S by the Constable of Nampo Outpost on 03.02.2001 itself and in the said information, the informant clearly indicated that the accident was caused due to rash and negligent driving of the driver of the offending truck bearing Regd. No.OD- 01D-9411.

6.1. It is also contended that I.O of the case after completing the investigation, charge-sheeted the offending truck bearing Regd. No.OD-01D-9411 and the driver of the offending truck was made as an accused. No negligence was found with the driver of the auto-rickshaw bearing Regd. No.OD-01AG-0788. It is contended that since the offending truck was only charge-sheeted with the driver being made as an accused and no negligence was found on the part of the driver of the auto-rickshaw, the Tribunal rightly after assessing the compensation saddled the same on the owner of the offending truck, the Owner-respondent no.3.

7. In support of his submission, reliance was placed to a decision of the Hon'b le Apex Court in the case of ICICI Lombard General Insurance Co. Ltd. Vs. Rajani Sahoo & Others, SLP (C ) No.29302 of 2019. Hon'ble Apex Court in para 9 of the said judgment has held as follows:

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9. Thus, there can be no dispute with respect to the position that the question regarding negligence which is essential for passing an award in a motor vehicle accident claim should be considered based on the evidence available before the Tribunal. If the police records are available before the Tribunal, taking note of the purpose of the Act it cannot be said that looking into such documents for the aforesaid purpose is impermissible or inadmissible.

7.1. It is also brought to the notice of the Court the evidence laid by P.W.2, driver of the auto-rickshaw. P.W.2 in his cross-examination, has submitted as follows:

"I have not been made accused in this case. The police made the truck driver as the accused. The offending truck came towards me from the opposite direction and dashed with my auto. I cannot say whether the Insurance was claimed to repair the said auto after the accident. It is not a fact that I have not stated before the police that in order to avoid the head on collision with the said truck, I swerved to my right side, but at that time, the truck driver quickly turned to left for which it dashed with the left side of the auto-rickshaw."

7.2. It is accordingly contended that in view of the evidence laid by P.W.2 and the charge-sheet filed by the I.O, since no negligence was attributed to the driver of the auto-rickshaw, the Respondent No.2-company has been rightly exonerated from the liability, with the liability fixed on the owner of the offending truck, the Respondent No.3. It is accordingly contended that no illegality or illegality can be found with the same.

8. It is however contended in the Bar that, taking into account the age of the deceased taken as 55 years by the tribunal, future prospect should have been allowed at 10% as the deceased being self-employed. It is also contended

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that if income of the deceased should have been taken at Rs.308/- per day with award of 10% towards future prospect, the compensation amount should have been assessed at Rs.9,64,432/- with interest as awarded.

9. Having heard learned counsel for the parties and considering the submission made, this Court finds that with regard to the accident which took place on 03.02.2021, information was lodged by the Constable of Nampo outpost before the I.I.C Jaleswar P.S on 03.02.2021. In the said information, it was clearly indicated that the auto-rickshaw bearing registration no. OD-01-AG 0780, while proceeding on the left side of the road, the offending truck caused the accident while coming from the opposite side in high speed. It is also found from the record that after completion of investigation, the I.O of the case filed the charge-sheet against the offending truck and the driver of the offending truck was made as an accused.

9.1. This Court after going through the materials placed also finds that no negligence has been attributed to the driver of the auto-rickshaw, having any way involved for causing the accident. Placing reliance on the evidence of P.W.2 and the decision cited by the learned counsel for Respondent No.2, as well as fact that the offending truck was only charge-sheeted, this Court finds no illegality or irregularity with regard to the finding of the Tribunal in saddling the liability on the owner-Respondent No.3.

9.2. However, taking into account the finding of the Tribunal available at Para-10 of the impugned judgment,

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this Court is of the view that the Tribunal committed a wrong by not taking the income of the deceased at Rs.308/- per day. This Court accordingly is inclined to held the daily income of the deceased at Rs.308/- per day. However, since the deceased was self-employed and was aged about 55 years, future prospect should have been calculated at 10% in place of 15%. Taking into account the daily income of the deceased at Rs.308/- per day with 10% towards future prospect, and taking into account the view expressed in the bar, this Court while interfering with the award, enhance the same to Rs.9,64,432/-. This Court accordingly is inclined to modify the award so passed by the Tribunal and enhance the same to Rs.9,64,432/- with interest as awarded.

9.3. Since in spite of notice, nobody is appearing on behalf of Respondent No.3-owner, this Court directs Respondent No.3 to deposit the aforesaid amount so assessed by the Court along with interest before the Tribunal within a period of 8(eight) weeks from the date of communication of this order by the present appellant. On such deposit of the amount, the Tribunal shall disburse the same in favour of appellant-claimant in terms of the judgment dt.17.07.2023.

9.4. The M.A.C.A is accordingly disposed of.

Digitally Signed Judge Signed by: SANGITA PATRA Orissa High Court, Cuttack Reason: authentication of order Dated the 20th March, 2025/sangita Location: high court of orissa, cuttack Date: 27-Mar-2025 12:06:01