The Divisional Manager vs Krushna Chandra Dixit And
2026 Latest Caselaw 2744 Ori

Orissa High Court

The Divisional Manager vs Krushna Chandra Dixit And on 23 March, 2026

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
               MACA No.274 of 2018
   (In the matter of application under Section 173(1) of
   the Motor Vehicles Act, 1988).

   The Divisional Manager,      ...               Appellant
   M/s. National Insurance Co.
   Ltd., Cuttack
                       -versus-
   Krushna Chandra Dixit and         ...       Respondents
   others
   For Appellant            :   Mr. P.K. Tripathy, Advocate
   Respondent No.1 &2       :   Dead and deleted
   For Respondent No.3 to 6 :       Mr. B. Singh, Advocate
   For Respondent No.7      :       None
       CORAM:
                   JUSTICE G. SATAPATHY
             DATE OF HEARING : 27.02.2026
             DATE OF JUDGMENT: 23.03.2026
G. Satapathy, J.

1. The appellant-National Insurance Company

Limited (in short, the "insurer") is subjected to this

appeal by the impugned judgment dated 21.10.2017

passed by the III Motor Accident Claims Tribunal,

Bhadrak (in short, the "Tribunal") in MAC Case No.29 of

2011 directing the insurer to pay Rs.17,00,670/- only

to the claimant-respondent Nos.1 to 6 together with

simple interest @ 7% per annum w.e.f. 19.04.2011 till

its actual realization.

2. Briefly stated, the claimant-respondent Nos.1

to 6 herein being the Legal Representatives (LRs) of

one Kedarnath Dixit (hereinafter referred to as, the

"deceased") a Storage Agent by profession had

approached the learned Tribunal in an application

U/S.166 of the Motor Vehicle Act (in short, the "Act")

for compensation towards death of the deceased on

23.12.2010 at about 4 PM at Ranital Bazar in a motor

vehicular accident, while travelling from Maitapur to

Bhadrak as a pillion rider on the motor cycle of Om

Prakash Nayak bearing Registration No.OR-22E-0699

(hereinafter referred to as, the "offending motor cycle")

being ridden in rash and negligently when the motor

cycle hit the road divider. According to the claimant-

respondent Nos.1 to 6, the accident was reported and

Bhadrak Rural PS Case No.420 of 2010 was registered

against Mr. Om Prakash Nayak for rash and negligent

riding and causing death of the deceased by

negligence. Accordingly, the claim of the claimants-

petitioners (R1 to 6) was registered vide MAC Case

No.29 of 2011 with the owner and insurer of the

offending motor cycle as OPs (R7 & Appellant).

In response to the aforesaid claim, the owner

of the motor cycle did not participate and was

accordingly set ex parte in MAC No. 29 of 2011,

whereas, the appellant-insurer appeared and contested

the claim by filing its written statement denying all the

averments asserted by the claimants and inter alia

setting forth the plea that the deceased died out of his

own negligence for not putting head gear and helmet

and, thereby, contributing to the accident.

3. On the rival pleadings of the parties, the

learned Tribunal struck three issues and allowed the

parties to lead evidence. Accordingly, the claimants

examined two witnesses vide PWs.1 & 2 and exhibited

10 documents vide Exts.1 to 10 as against no evidence

whatsoever by the insurer. After appreciating the

evidence on record upon hearing the parties, the

learned Tribunal passed the impugned judgment

directing the insurer to satisfy the award by holding the

deceased to have contributed to the accident and

fastening the liability of 50% on the insurer. Being

aggrieved, the insurer has preferred this appeal, but

the claimants-R3 to 6 have filed their cross-objection

assailing the apportionment of liability on the deceased

for 50% for equally contributing the accident.

3.1. During the pendency of the appeal, R1 & R2

died, but all the LRs. of R1 & 2 being on record, the

names of R1 & 2 stand deleted from the appeal memo.

4. Heard Mr. Pramoda Kumar Tripathy, learned

counsel for the appellant and Mr. Bishnubrata Singh,

learned counsel for R3 to R6 in the matter and perused

the record, but none appears for R7 despite valid notice

of the appeal.

5. After having considered the rival submissions

upon perusal of record, primarily it appears to the

Court that the insurer challenges the quantum of

compensation on three counts; such as (i) incorrect

assessment of the income of the deceased by relying

upon the Income Tax Return of a solitary year 2010-

2011, (ii) Disputing the profession of the deceased and

(iii) Excessive award of Rs.1,50,000/- towards damages

under non-pecuniary heads and imposition of high

interest rate @ 7% per annum on the award, but the

quantum of compensation is also challenged by the

claimant-R3 to 6 for apportionment of liability 50:50 to

both the deceased and the insurer on account of

intoxication of the deceased and for not granting any

amount towards future prospect of the deceased in

computing loss of dependency for the claimants.

6. Before addressing the challenges of the parties,

it is found from the record that the claimants by

examining the witnesses and exhibiting documents in

evidence had established by preponderance of

probability that the accident occurred due to rash and

negligent riding of the rider of the offending motor

cycle namely Om Prakash Nayak, which in fact could

not be disputed by the insurer. Further, the insurer has

not led any evidence to establish any of his plea, but on

the other hand, the copy of FIR, charge-sheet, seizure

list, inquest report, zimanama and PM report in

Bhadrak Rural PS Case No.420 of 2010 being exhibited

in evidence without any objection by the insurer itself

has established that the accident occurred due to rash

and negligent riding of the rider of the offending motor

cycle and the deceased died in such accident.

7. Once the accident is found to have occurred

due to rash and negligent riding of the rider of the

offending motor cycle, the next question comes for

determination is the quantum of compensation to the

claimants, who are the legal representatives of the

deceased. In this case, the profession and income of

the deceased have been seriously disputed by the

insurer, but such dispute of the insurer remains on

paper without any evidence tendered by it. In support

of proof of the avocation of the deceased, the claimants

had examined PW2, who in his Examination-in-Chief

has stated that the deceased was working as a Storage

Agent for Simulia Block and also doing transport

business, but not a single question was asked to PW2

to dispute the profession of the deceased as a Storage

Agent and even no suggestion was given to PW2 in this

regard. It is, therefore, considered that the challenge to

the profession of the deceased remains on paper only,

but it could not be validly disputed by the insurer.

Further, to establish the income of the deceased, the

claimants had proved the Income Tax Return (ITR) of

the deceased for the Assessment Year 2010-2011

under Ext.8, which was in fact objected to by the

insurer, but only one question was put to PW1 with

regard to non-filing the balance sheet of the deceased

for the Assessment Year 2010-2011, however, on the

other hand, the copy of Income Tax Return issued by

the authority for an Assessment Year is a public

document, which is admissible in evidence, unless the

same is established to have not been issued by the

authority. It has been held by the Apex Court in

Malarvizhi and others Vrs. United India Insurance

Company Limited and another; (2020) 4 SCC 228

that Income Tax Return is a statutory document on

which reliance may be placed to determine the annual

income of the deceased. It is the contention of the

learned counsel for the insurer that the learned Tribunal

has committed error in relying upon the ITR, rather it

should have been the average of the ITRs for three

years, however, such proposition does not appeal to

the conscience of the Court and, therefore, the

challenge of the insurer to the Income Tax Return of

the deceased being unfounded stands rejected.

8. It is also claimed by the insurer that the grant

of compensation of Rs.1,50,000/- towards damages

under non-pecuniary heads appears to be on higher

side, which finds support from the decision in National

Insurance Company Limited Vrs. Pranay Sethi and

others; (2017) 16 SCC 680, wherein a constitutional

Bench of five Judges of the Apex Court in paragraph-

59.8 has been pleased to held that reasonable figures

on conventional heads, namely, loss of estate, loss of

consortium and funeral expenses should be Rs.15,000/-

, Rs.40,000/- and Rs.15,000/- respectively and the

aforesaid amounts should be enhanced at the rate of

10% in every three years. Applying the said principle,

since the accident had taken place on 23.12.2010, the

claimants are entitled to Rs.70,000/- + Rs.35,000/- (5

X 10% of Rs.70,000/- for five escalation) =

Rs.1,05,000/-.

9. Adverting to the challenge of the claimants

which was advanced through a cross-objection, it

appears that the claimants strongly challenges the

quantum of compensation for apportionment of liability

in the ratio of 50:50 to both the deceased and the

insurer on the ground of intoxication of the deceased

and for not granting any amount towards future

prospect of the deceased in computing the loss of

dependency. In this context, it is found from the

impugned judgment that the learned Tribunal while

calculating compensation has ignored the future

prospect of the deceased and it has apportioned the

liability of the insurer and the deceased in the ratio of

50:50, but the main ground to hold the deceased to

have contributed to the accident for his own negligence

is for his intoxication, which is evident from the

observation of the learned Tribunal in the last part of

paragraph-9 of the impugned judgment, which reads as

under:-

"9. Xxx xxx xxx The PM report, Ext.6 reveals that on dissection of stomach of the deceased, 700 ml of fluid admixed with food with strong alcohol smell was detected. So, it is apparent that there was contributory negligence on the part of the deceased."

10. This Court is unable to persuade itself to accept

the view of the learned Tribunal not only for the solitary

reason of the insurer not taking such plea, but also for

many other reasons, such as no suggestion in fact was

given to any of the witnesses of the claimants for

deceased taking liquor and accident occurring due to

consumption of liquor by the deceased. In addition, the

insurer has not advanced such plea in its written

statement, besides; the insurer has not adduced any

evidence to prove that the deceased was under the

influence of alcohol at the time of accident and the

accident occurred due to consumption of alcohol by the

deceased. Additionally, the doctor was not examined by

the insurer to establish the plea of intoxication of the

deceased.

11. For arguendo, accepting, but not admitting the

observation of the learned Tribunal about intoxication

of the deceased, it appears that the consumption of

alcohol would not debar or disentitle the claimants for

compensation, unless it is established that the

consumption of alcohol had caused/contributed to the

accident, especially when the amount of alcohol or

degree of intoxication are real markers/indicators to

find out the cause of accident inasmuch as a small

amount of liquor, such as one peg of drink may not be

sufficient to inebriate a habitual drunkard, but the same

may inebriate a tee-totaller, however, no provision of

any act is brought to the notice of the Court to suggest

that merely because one has consumed alcohol, the

claim against his death for compensation by his

dependants is not maintainable or he can be considered

to have contributed to the accident, more particularly

when he was the pillion rider on the motor cycle.

Additionally, merely because the deceased had

consumed liquor, it does not necessarily mean that he

had contributed to the accident. In the aforesaid facts

and situation, especially when the evidence does not

reveal the accident to have occurred due to the act of

the deceased-pillion rider, but the accident occurring

due to the rash and negligent action of the rider of the

motor cycle from the evidence on record together with

the rival pleadings, it can certainly considered that the

deceased had not contributed to the accident in any

manner. In the fitness of thing; this Court, however,

disapproves the observation and finding of the learned

Tribunal with regard to deceased contributing to the

accident by his own negligence.

12. Once it is found that the deceased had not

contributed to the accident, the liability has to be borne

out by the owner of the motor cycle, but the insurer

being contractually liable to indemnify its owner; it is

only the insurer that has to bear the liability to pay the

compensation to the claimants. As it is already said that

the learned Tribunal has not computed the

compensation by taking the future prospect of the

deceased, this Court by relying upon the decision in

Pranay Sethi (supra) considers it proper to hold that

the income of the deceased has to be reassessed and

recalculated by adding the amount towards future

prospect. It is not in dispute that the deceased was

aged about 37 years, and he being in the category of

self-employed or on a fixed salary, an addition of 40%

to the established income of the deceased be the basis

of computation for the loss of dependency. It is not in

dispute that the learned Tribunal has taken into

consideration the ITR of the deceased for the

Assessment Year 2010-2011 under Ext.8 towards

computation of income of the deceased. According to

Ext.8, the net annual income less the tax paid would

come around Rs.2,84,224/- and after addition of 40%

to it towards future prospect of the deceased, the net

amount would come around Rs.2,84,224/- +

Rs.1,13,689/-(40% of Rs.2,84,224/-) = Rs.3,97,913/-.

Since, the deceased was having six dependents, 1/4th

of the aforesaid amount is required to be deducted as

personal and living expenses of the deceased and after

deducting such amount, the net amount would come

around Rs.3,97,913/- - Rs.99,478/- (1/4th of

Rs.3,97,913/-) = Rs.2,98,435/- and applying 15

multiplier to it, the net loss of dependency of the

claimants would come around Rs.2,98,435/- X 15 =

Rs.44,76,525/- and adding to it Rs.1,05,000/- towards

damages under non-pecuniary heads, the net

compensation amount for the claimants would come to

Rs.44,76,525/- + Rs.1,05,000/- = Rs.45,81,525/-.

Besides, the claimants are also entitled to simple

interest @ 6% per annum on the aforesaid amount.

13. In the result, the appeal stands dismissed, but

the cross-objection by R-3 to 6 is allowed on contest

against the insurers, ex-parte against R-7. Consequently,

the impugned judgment is modified to the extent

indicated above and the insurer is directed to pay the

modified compensation amount to the claimants

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

19.04.2011 till its actual realization within eight weeks

hence. In case of deposit of the modified compensation

amount, the same shall be disbursed to the claimants

proportionately in terms of the award and the statutory

deposit together with the accrued interest thereon be

refunded back to the insurer on production of proof of

deposit of such modified compensation.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 23rd day of March, 2026/Kishore

Signed by: KISHORE KUMAR SAHOO

Location: High Court of Orissa Date: 23-Mar-2026 18:06:08