The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.108 of 2019 Divisional Manager, National Insurance Company Limited, Angul …. Appellants Mr. G.P. Dutta, Advocate -Versus- Subarna Sahu and Others …. Respondents Mr. P.S. Nayak, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 05.03.2024 Order No. 12. 1. Heard Mr. Dutta, learned counsel for theappellant Insurance Company and learned counsel for the claimants respondent Nos.1 to 3. 2. None appears for respondent No.4. 3. As per the SR, neither AD nor undelivered notice returned from respondent No.4. However, the Postal Tracking Report as at Flag-M reveals that notice was delivered to responded No.4 on 27th February, 2024. Considering the said report, notice vis-à-vis respondent No.4 is treated as sufficient. 4. Instant appeal is filed by the appellant Insurance Company challenging the liability as well as the quantum of compensation directed in M.A.C. Case No.03 of 2017 by the learned 1st M.A.C.T., Angul on the grounds stated therein. 5. The first limb of argument of Mr. Dutta, learned counsel for appellant Insurance Company is that the contributory negligence Page 1 of 5 is 50% each since for the alleged accident, FIR was lodged against the deceased rider which led to the filing of charge sheet, hence, learned Tribunal was at error to fix it at 80% for them and rest 20% against the rider. The further contention is that deceased income was fixed at Rs.7,500/- which was on the higher side as it should have been Rs.6,216/- as per the minimum wages for an unskilled labour prevailing at that point in time. In so far as, the offending bus is concerned, it was carrying more passenger than the capacity, hence, according to Mr. Dutta,it was in violation of the conditions of the permit, therefore, learned Tribunal should have allowed recovery right against respondent No.4. With the above submission, Mr. Dutta, learned counsel for the appellant Insurance company would submit that with a calculation on assessment vis-a-vis the income, if the Court is not inclined to consider contributory negligence at 50% each, it would stand at Rs.9,40,240/- and with the contribution of 80% at Rs.7,52,192/- and to the aforesaid extent, the impugned award is to be modified with the recovery right allowed against respondent No.4. 6. On the other hand, learned counsel for the claimants respondent Nos.1 to 3 justifies the award under challenge on the ground that rightly learned Tribunal determined the compensation at Rs.11,20,000/- payable at 6% per annum with the penal interest at 7.5% which is therefore should not be disturbed. 7. In so far as, the contributory negligence is concerned. It is contendedby Mr. Dutta, learned counsel for the appellant Insurance Company that the rider deceased was equally responsible, hence, therefore, the liability should have been 50% Page 2 of 5 each and while claiming so, he refers to FIR (Ext.1)and charge sheet (Ext.2). However, the FIR is stated to have been lodged by the informant, who is not an ocular witness. The learned Tribunal has considered the evidence on record and referring to the testimony of one of the passengers of the offending bus examined as P.W.2 held that the driver of the said vehicle lost control, as a result of which, the accident took place. Merely by referring to Ext.1 and the charge sheet i.e. Ext.2 as against the rider deceased, in the considered view of the Court,it would not be proper to hold that he was equally responsible and hence, liability should be 50%. In fact, there has to have clear evidence with regard to the manner in which the accident had taken place, in absence of which, the Court is not inclined to fix liability of 50% against the deceased rider. In other words, the Court is of the view that the learned Tribunal did not commit any error or illegality in directing the appellant Insurance Company to bear the liability with payment of 80% of the compensation determined. 8. With regard to income of the deceased, no evidence was produced before the learned Tribunal as made to reveal from the award itself. However, the learned Tribunal fixed the income of the deceased at Rs.7,500/-. If the deceased is treated as an unskilled labour, as per the Government notification with the prevailing minimum wages applicable, it should have been Rs.6,216/- per month instead of Rs.7,500/-. So, therefore, the Court finds force in the submission of Mr. Dutta, learned counsel for the appellant Insurance Company and accordingly, fixed the monthly income of the deceased at Rs.6,216/-. With such daily wage applied meant for an unskilled labour and monthly income determined, the compensation with 25% future prospectsadded, the compensation stands at Rs.8,70,240/- with an additional sum Page 3 of 5 of Rs.70,000/- towards non-pecuniary damages, the amount is arrived at Rs.9,40,240/- with the share of 80% at Rs.7,52,192/- to be payable by the appellant Insurance Company at the same rate of interest so levied by the learned Tribunal. In other words, the Court reaches at a conclusion that the appellant Insurance Company is liableto pay 80% of the compensation for an amount of Rs.7,52,192/- at 6% per annum. 9. As regards the violation of the conditions of the permit, the learned Tribunal has considered the same and also death of passengers of the offending bus, which was travelling beyond its capacity by then, this Court, taking cognizance of the said facts and decision of the Apex Court in the case of Amrit Paul Singh and Another Vrs. TATA AIG General Insurance Company Ltd.2018(III) T.A.C 1 on the point in issue involved, is of the humble view that the recovery right should have been allowed in favour of the appellant Insurance Company and as against respondent No.4, who did not respond and contest as he was set ex-parte before the learned Tribunal. 10. Hence, it is ordered. 11. In the result, the appeal stands allowed in part. Consequently, the impugned award dated 13th July, 2018 passed in M.A.C. Case No.03 of 2017 by the learned 1st M.A.C.T., Angul is hereby modified to the extent as aforesaid with a direction to the appellant Insurance Company, with the recovery right in its favour vis-à-vis respondent No.4,to deposit the amount of Rs.7,52,192/- payable along with interest at the rate of 6% per annum within eight weeks from today,which shall on being so deposited to be immediately disbursed in favour of the claimants Page 4 of 5 respondent Nos.1 to 3. It is further directed that there shall be no penal interest as it has been levied by the learned Tribunal. The Court further directs that the statutory deposit along with accrued interest thereon shall be refunded to the appellant Insurance Company soon after the above deposit is made and disbursed. (R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 07-Mar-2024 11:10:58 Page 5 of 5