The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1234 of 2007 (From the judgment dated 21st May, 2007 of learned 2nd MACT, Sambalpur passed in Misc.(A) Case No.309 of 2004 (D)) Mumena Bai and Others …. Appellants -versus- Sujit Kumar Pradhan and Another …. Respondents Advocate(s) appeared in this case:- For Appellants
Legal Reasoning
: Mr. S.C. Samantaray, Advocate For Respondents : Mr. S.S. Rao, counsel for Respondent No.2 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 11th May, 2023 B.P. Routray, J. 1. The matter is taken up through hybrid mode. 2. Heard Mr. S.C. Samantaray, learned counsel for the claimant – Appellants and Mr. S.S. Rao, learned counsel for insurer – Respondent No.2. 3. Present appeal by the claimants is directed against the impugned judgment dated 21st May, 2007 of learned 2nd MACT, Sambalpur passed in Misc.(A) Case No.309 of 2004 (D), wherein the tribunal has refused to grant any compensation disbelieving the case of the claimants. MACA No.1234 of 2007 Page 1 of 6 4. According to the claimants, when the deceased was going in his motor cycle it was dashed by the offending motorcycle bearing registration number OR-19-8834 and as a result of the same, the motor cycle driven by the deceased dashed against a mango tree causing death of the deceased. In support of his contention, the claimants examined two witnesses among whom P.W.2 is the witness who has stated to have seen the accident as the pillion rider of offending motor cycle. 5. On the other hand though no witness was examined from the side of the insurer but they adduced copies of police papers to deny the case of the claimants. 6. The tribunal disbelieved the death of deceased involving the offending motor cycle mainly on the ground that the contentions of claimants goes contrary to the findings given in police report and secondly, the evidence of P.W.2 as an eye witness is untrustworthy. 7. It is true that as per the findings given by the police in the investigation report the deceased who was driving the motor cycle hit against a mango tree and died. But as per the statement of P.W.2, he was the pillion rider in the offending motor cycle driven by the owner-cum- driver, namely Sujit Kumar Pradhan and the leg-guard of the offending motor cycle struck against the motor cycle driven by the deceased MACA No.1234 of 2007 Page 2 of 6 resulting hitting of the later motor-cycle against a mango tree. As per P.W.2, the place of accident was a slop road. 8. The tribunal disbelieved P.W.2 on the ground that he did not say anything about involvement of the offending motor cycle before police and he was not a witness examined by police in course of investigation. 9. Law is well settled regarding standard of proof to be maintained in a claim application concerning motor vehicular accident. {See Bimla Devi and Others vs- Satbir Singh and Others (2013) 14 SCC 345, Bimla Devi and others vs- Himachal Road Transport Corporation and others (2009) 13 SCC 530, Sunita and others vs- Rajasthan State Road Transport Corporation and others (2020) 13 SCC 484, Anita Sharma and others vs- New India Assurance Company Limited and another (2021) 1 SCC 171, Janabai and others vs- I.C.I.C.I. Lambord Insurance Company Ltd., 2022 SCC OnLine SC 994 } It is now settled that extremely strict proof of facts as Evidence Act may not be adhered to religiously and some amount of flexibility has to be given. The claimants are required to establish their case on the touchstone of preponderance of probabilities. MACA No.1234 of 2007 Page 3 of 6 10. As stated above, in the present case, the statement of P.W.2 as the eye witness is not rebutted during his cross-examination. Nothing substantial could be elicited from him to disbelieve his version as an eye witness of the occurrence. Moreover, when the owner admits the accident being the driver of the offending motor cycle in his WS before the tribunal, no point is seen in disbelieving the statement of P.W.2 to be an eye witness. It is well known that the findings of police recorded in the final report have no evidentiary value and the same cannot outweigh the statements of direct witnesses. As such, this court upon analysis of the evidence adduced on record comes to the conclusion that the death of deceased in the vehicular accident is due to negligence of the driver of the offending motor cycle bearing registration number OR-19-8830. 11. Next coming to the question of quantum of compensation, the deceased was aged about 56 years as per the post mortem examination report. Though the claimants have stated his age to be 45 years but the same is not found believable on the face of record where the widow is stated to be aged about 46 years. Therefore on the given facts, the age as opined in the post mortem examination report is accepted. 12. So far as the income of the deceased is concerned, according to P.W.1 – the son of deceased, he was earning Rs.7000/- per month by MACA No.1234 of 2007 Page 4 of 6 dealing with scrap irons. However, no documentary evidence has been produced to that effect nor any independent witness has been adduced to prove such income of the deceased. In such circumstance, when no definite proof is there regarding income of the deceased, guess work can be made to determine probable income of the deceased keeping in view all such factors including his place of residence and economic background. (See Ramchandrappa v. Manager, Royal Sundaram Alliance Insurnace Co. Ltd., 2011 (4) T.A.C. 1 (S.C.)). This court accordingly considered the facts of the case and assessed the income of deceased at Rs.3000/- per month. Adding future prospect to the extent of 10% and deducting 1/3rd towards personal expenses, the total loss of dependency is computed at Rs.2,37,600/-. Adding general damages including consortium to the wife and two children to the extent of Rs.1,00,000/-, the compensation amount is determined at Rs.3,37,600/-, payable along with interest @ 6% per annum. 13.
Decision
In the result the appeal is disposed of with a direction to the insurer – Respondent No.2 to deposit the modified compensation of Rs.3,37,600/- (three lakhs thirty-seven thousand six hundred) before the tribunal along with interest @ 6% per annum from the date of filing of MACA No.1234 of 2007 Page 5 of 6 the claimant application, within a period of two months from today; where-after the same shall be disbursed in favour of the claimant – Appellants on such terms and proportion to be decided by the learned tribunal. 14. Urgent certified copy be issued as per rules. M.K. Panda, Sr. Steno (B.P. Routray) Judge Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Designation: Sr. Steno Reason: Authentication Location: Orissa High Court, Cuttack Date: 15-May-2023 19:21:49 MACA No.1234 of 2007 Page 6 of 6