[Cites 10, Cited by 0]

Orissa High Court

Gurubari Biswal vs M/S. Sudhakar on 9 January, 2026

Author: V. Narasingh

Bench: V. Narasingh

   IN THE HIGH COURT OF ORISSA AT CUTTACK
               MACA No.1315 of 2017

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

1. Gurubari Biswal
2. Akash Kumar Biswal       ...          Appellants
3. Nabana @ Labanya
   Biswal
4. Suresh Biswal

                    -versus-

1. M/s. Sudhakar
   Marketing Agencies
   Pvt. Ltd. Near SRMT,
   Aska Road, Berhmpur, ...           Respondents
   Ganjam
2. D.M. Oriental
   Insurance Co. Ltd.
   Bhubaneswar
   Division, Alok Bharati
   Tower (TP Cell),
   Saheed Nagar,
   Bhubaneswar, Khurda


    For Appellant     : Mr. B.N. Rath, Advocate

   For Respondents : Mr. S. Satapathy, Advocate

          CORAM: JUSTICE V. NARASINGH

       Date of Final Hearing: 09.10.2025
       Date of Judgment     : 09.01.2026




                                                  Page 1 of 13
 V. Narasingh, J.

1. Heard learned counsel for the Appellants and

learned counsel for the Respondents.

2. The claimants are Appellants assailing the award

dated 10.10.2017 passed by the learned District Judge-

cum-1st M.A.C.T., Nayagarh in M.A.C. No.65 of 2013 by

which the claim application filed was held to be not

maintainable under Section 163(A)1 of the Motor Vehicles

Act, 1988 as the income of the deceased was more than

Rs.40,000/- per annum.

3. The LRs of the deceased- Pitabas Biswal filing the

application under Section 163(A)1 of the Motor Vehicles

Act claimed compensation of Rs.9,00,000/- on account of

his death in the vehicular accident. To substantiate their

claim it was inter alia stated in the claim petition that the

163-A. Special provision as to payment of compensation on a structured formula basis- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation: For the purposes of this Sub-section, "permanent disability" shall have the same meaning and extent as in the Workman's Compensation Act, 1923.

(2) In any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or, permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living, by notification in the official Gazette, from time to time amend the Second Schedule.

deceased at the time of accident was getting a salary of

Rs.3,300/- along with food allowance of Rs.150 per day.

4. The Insurance Company-Respondent No.2

(Opposite Party No.2) as well as the owner-Respondent

No.1 (Opposite Party No.1) filed their written statement.

It was the stand of the owner-Opposite Party No.1 that

since the deceased was working as a helper cum co-

driver and the vehicle being duly insured with Respondent

No.2-Opposite Party No.2 (Insurer) he is not liable to pay

any compensation and it is incumbent upon the insurance

company to pay the compensation.

5. On the basis of the pleadings of the parties, the

following three issues and an additional issue were

framed;

"ISSUES

1. Whether, the accident has taken place due to rash and negligent driving of the driver of the offending vehicle bearing registration No.ORO7H 6288 causing death of Pitabas Biswal?

2. Whether, the petitioners are entitled to any compensation, if so, to what extent and from whom?

3. To what relief, the petitioners are entitled to?

ADDL. ISSUE

4. Whether, the application U/s.163(A) of M.V. Act, 1988 by the claimants is maintainable when the deceased had income more than Rs.40,000/- per annum?"

6. The claimants in order to substantiate their case

examined two witnesses and also relied on the

documentary evidences marked as Exts.1 to 7.

Neither oral nor documentary evidence was

adduced on behalf of Respondent-Opposite Parties.

7. The learned Tribunal took up Additional Issue

No.4 for consideration at the threshold.

8. Taking into account the stand of the Insurance

Company-Respondent No.2 (Opposite Party No.2) that

the claim application is not maintainable on two grounds

i.e., the claimant has income of more than Rs.40,000/-

and he is not the third party to file the claim application

under the Motor Vehicles Act.

It is apt to note here that on a bare perusal of

Additional Issue No. 4, it can be seen that the ground of

the claim application being not maintainable, as allegedly

the claimant is not a third party, was not formulated.

9. Learned counsel for the claimant-Appellants, Mr.

Rath, submits that the impugned award is liable to be set

aside since all the grounds on which the same has been

rejected are untenable.

Per contra, the learned counsel for the Insurance

Company, Mr. Satapathy supported the impugned

judgment and the reasoning in arriving at such judgment.

10. The claim of the Appellants was not entertained

on the following grounds by the learned Tribunal;

i. The claim application at the instance of the

appellants under section 163-A of the M.V Act is not

maintainable as the annual income of the deceased

is more than Rs.40,000/- as provided under the

second schedule of the M.V Act.

ii. Insurance policy issued by the Insurance

Company (Res. No.2) does not cover the risk of any

driver and helper as no extra premium has been

taken for that purpose.

iii. As the deceased having died in course of his

employment, the claimants may claim compensation

against the owner at the appropriate forum.

11. It was the finding of the learned Tribunal that the

deceased, being the helper of the mini truck, was getting

Rs. 3,300/- per month, and he was also getting Rs.150

per day towards his fooding allowance. And, adding to

such fooding allowance, the deceased's annual income

was held to be more than Rs. 40,000/-. As such, the LRs

cannot maintain the claim under Section 163(A)1 of the

Motor Vehicles Act, 1988.

And to justify such finding, the learned Tribunal

relied on the judgments of the Apex Court in the case of

Deepal Girishbhai Sony v. United India Insurance

Co. Ltd.2, National Insurance Company Ltd. V.

Laxshmi Thappa3 and National Insurance Company

Ltd. V. Arabindakshan and another4.

Deepal Girishbhai Soni v. United India Insurance Co. Ltd., (2004) 5 SCC 385

National Insurance Company Ltd. v. Lakshmi Thapa, 2014 SCC OnLine Gau 490; 2016 A.C.J.

National Insurance Co. Ltd. v. Aravindakshan, 2016 SCC OnLine Ker 8836; 2016 A.C.J. 2849

12. Apart from the above case laws referred and

relied upon by the learned Tribunal, the learned counsel

for the Respondent-Insurance Company, Mr. Satpathy,

also placed reliance on the judgment of the Apex Court in

the case of Kavita Devi and others v. Sunil Kumar

and another5.

13. He also relied on the judgments in the case of

Oriental Insurance Co. Ltd. Vrs. Shyamsundar

Rohidas and others6 and The Divisional Manager,

New India Assurance Co. Ltd. Vrs. Manorama Devi

and others7 to fortify his submission that fooding

allowance forms part of the wages and therefore, there is

no illegality in the assessment by the learned Tribunal

that the income of the deceased was more than

Rs.40,000/- per annum.

14. Learned counsel for the claimants, Mr. Rath relied

on the judgments of the Apex Court in the case of

Surekha and others vs. Branch Manager, National

Kavita Devi v. Sunil Kumar, 2025 SCC OnLine SC 1639

Oriental Insurance Company Ltd. v. Shyamsundar Rohidas, 1999 SCC OnLine Ori 74; 2000(3)TAC290

Divisional Manager, New India Assurance Co. Ltd. v. Manorama Devi, 2004 SCC OnLine Ori 64; 2004(II)OLR712; 2005(1)TAC544

Insurance Co. Ltd.8and Divisional Manager, United

India Insurance Co. Ltd. Vs. Panchanan Panigrahi

and others9 and also the very order of the Apex Court

on which much reliance is placed by the learned counsel

for the Respondent in the case of Kavita Devi(Supra)5.

On a close scrutiny of the order of the Apex Court

in the case of Kavita Devi(Supra)5,it is seen that the

Apex Court quoted with approval paragraph-19 of its

finding in National Insurance Co. Ltd. V. Indira

Srivastava and others10. The said paragraph-19 reads

as under;

"19. The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted."

(Emphasised)

Surekha v. National Insurance Co. Ltd., (2017) 15 SCC 579; 2017ACJ2389

Divisional Manager, United India Insurance Co. Ltd. Vs. Panchanan Panigrahi, 2024(4)TAC273

National Insurance Co. Ltd. V. Indira Srivastava, (2008) 2 SCC 763

15. On a bare perusal of the said paragraph, one has

to arrive at the irresistible conclusion that the amount

which is paid exclusively for the employee cannot be

counted towards the benefit of the family and as such,

cannot be included in quantification of total income for

the purpose of assessment of compensation.

The use of the expression "contradistinguished"

by the Apex Court, while dealing with the aspects of

income exclusively meant for the individual vis-à-vis the

computation of the monthly income of a family, has to be

given its full play.

16. The decisions referred to by the learned Trial

Court are distinguishable on facts inasmuch as, in the

decisions relied upon by the learned Trial Court the

nature of computation of allowance vis-à-vis the income

of the family has not been discussed.

17. As such, this Court is persuaded to hold that

fooding allowance of Rs.150 per day cannot be included

towards computation of income of the deceased for

quantification of compensation and the finding on this

count by the learned Trial Court is set aside.

18. It is apt to note here that, in view of the dismissal

of the claim application on account of the finding relating

to Additional Issue No. 4, as quoted above, regarding the

maintainability of the claim application under Section

163(A)1 of the Motor Vehicles Act, the learned Tribunal

did not proceed to return findings on the other issues.

19. Notwithstanding the same, since the learned

counsels have addressed this Court on the quantum of

compensation to be awarded and the liability of the

Insurance Company to indemnify on account of the stand

of the Insurance Company, this Court proceeds to

adjudicate on the question of the liability of the Insurance

Company and the quantum as well since the accident in

question relates to the year 2012. And, in the considered

view of this Court, it would be unjust to throw the

claimants into the quagmire of further litigation, keeping

in view that the legislation in question is a beneficial one.

20. Insurance policy was submitted during the course

of hearing. A copy thereof is treated as a part of this

order. The same is extracted hereunder;

Copy thereof has been served on the learned

counsel for the Insurance Company.

21. On a bare perusal of the same, it is seen that it is

a comprehensive package policy which includes the

carrying of the employees of the owner, not exceeding

three in number.

Since the deceased was an employee of the

owner, being the helper, the Insurance Company is liable

to pay the compensation.

22. As such, the compensation is quantified as under;

Income                                 :- Rs.3,300/- per month



Annually                               :- Rs.39,600/-

1/3rd deduction for personal           :-

expenses of the deceased      (-)

= Rs.4,75,200/- + 9,500/- (General damages)

= Rs.4,84,700/- along with 6% interest from the

date of application.

23. The amount, as quantified, shall be paid within a

period of three months from the date of

receipt/production of copy of the judgment by

Respondent-Insurance Company.

The learned Tribunal shall apportion the

compensation amongst the claimants.

The Claimants shall be liable to pay Court fee as

per the rules.

Accordingly, the MACA stands disposed of. No