The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA Nos. 125, 123, 124, 126, 127 & 128 of 2023 (An appeal Under Section 173(1) of the M.V. Act, 1988) … Appellant … Respondents HDFC-ERGO General Insurance Company Ltd., Cuttack(In all these appeals) -versus- Gahar Alli Purkait and others (In MACA No. 125 of 2023) Chamion Bibi and others (In MACA No. 123 of 2023) Hanchina Bibi and others (In MACA No. 124 of 2023) Amadulla Purokait and another (In MACA No. 126 of 2023) Maniruddin Purokait and another (In MACA No. 127 of 2023) Hanif Molla and another (In MACA No. 128 of 2023) For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. S.N. Kar, Advocate CORAM: HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :18.02.2025 DATE OF JUDGMENT:16.05.2025 G. Satapathy, J. 1. Challenge in these appeals is as to the common judgment dated 15.11.2022 passed in six claims vide MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 1 of 24 M.A.C. Case Nos. 833 to 838 of 2017, by which the learned 3rd Motor Accident Claim Tribunal (Hereinafter referred to as “the learned tribunal”) has awarded different compensation amounts to the different claimants preferring applications U/S. 166 of Motor Vehicles Act, 1988(In short “the MV Act”) for compensation due to motor vehicular accident in which three persons died and three persons sustained injuries. 2. Facts in precise are on 03.10.2017 at about 2:30 AM in the mid night, one truck bearing Registration No. OD-05-W-8955(offending vehicle) belonging to Respondent No.5(R5) M/S. MM Enterprises, proceeding towards Solopakhari under Balugaon PS carrying the deceased Habibulla Purkait, Khatip Purkait @ Raja Purkait, Arabilla Purkait and injured Amadulla Purkait, Maniruddin Purkait and Hanif Molla met with an accident and capsized by felling on the side of National Highway resulting in death and injuries to above persons. Accordingly, the family members of the deceased persons claiming themselves MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 2 of 24 to be dependents on the deceased persons and the injured themselves filed applications U/S. 167 of the MV Act claiming certain compensation by impleading the owner and insurer of the offending vehicle. According to the claimants, the deceased and injured
Legal Reasoning
persons were working under M/S. Sri Sai Construction engaged to install Jio Mobile Phone Tower and these persons were proceeding to work site at Solopakhari for installation of Mobile Tower. In response to the claims six in number as filed, the owner of the offending vehicle-cum-R5 M/S. MM Enterprise did not choose to contest the claims and it was accordingly, set exparte in all the claims, but the insurer of the offending vehicle-cum-present Appellant HDFC-ERGO General Insurance Company Ltd., Cuttack contested all the six claims by filing separate written statements inter-alia challenging maintainability of the claims and its liability to pay compensation to the claimants in these six claims on various grounds, but the main plea of the insurer is that since the deceased and injured persons were travelling in the offending MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 3 of 24 vehicle by sitting in its Dala as a gratuitous passengers, the insurer is not liable to pay any compensation to the claimants. According to the insurer, the prescribed capacity of the offending truck in terms of registration certificate was two persons including the driver, but the owner of the offending vehicle having allowed the offending vehicle to carry the deceased and injured persons beyond the permissible limit, the insurer is not contractually liable to indemnify the owner. In addition of denying its liability, the insurer had also disputed the profession and income of the deceased and injured persons. 3. Since all the claims arise out of one accident, the learned tribunal took all the matters simultaneously, however, on the inter se pleadings of the parties, the learned tribunal struck five issues and allowed the parties to lead evidence. Accordingly, five witnesses were examined in favour of the claimants as against one witness by the insurer-appellant. In addition to oral evidence, the claimants exhibited twenty two documents under Ext.1 to Ext.22 as against MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 4 of 24 the documentary evidence of copy of insurance policy, certified copy of RC Book, Road permit and final form in the accident case under Exts A to D by the insurer. 4. After appreciating the evidence upon hearing the parties, the learned Tribunal held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and thereby, the claims by the claimants are maintainable and the appellant-insurer being contractually liable is required to satisfy the awards passed in these claims, but the learned tribunal by the impugned judgment while allowing the claim of the claimants against the insurer dismissed the claim against the owner of the offending vehicle. Being aggrieved, the insurer has filed all these six appeals. 5. In the course of hearing of these appeals, Mr. G.P. Dutta, learned counsel for the appellant-insurer has emphatically submitted that the claim by the Respondents-claimants in MACA No. 124 of 2023, arising out of claim in MAC Case No. 834 of 2017 being the sister and brother of the deceased is not maintainable because they are not dependent on their MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 5 of 24 deceased brother, but ignoring such fact, the learned tribunal has awarded compensation to the brother and sister of the deceased who are not only married, but also having independent income and are residing separately. In order to buttress his submission, Mr. Dutta has relied upon the decision in New India Assurance Co. Ltd. Vrs. Anand Pal; 2024 (1) T.A.C. 3 SC. In addition to specially challenging the award in MACA No. 124 of 2023, Mr. Dutta also assailed the impugned judgment in rest of the claims on various grounds inter alia that the deceased and injured persons being gratuitous passenger, their dependents or themselves (injured) are not entitled to any compensation and the claim of the claimants having been dismissed against the owner by the impugned judgment, the insurer of such offending vehicle is statutorily not liable to indemnify the owner of the offending vehicle because the insurer is only liable to indemnify the liability of the insured, but when no liability has been fastened on the insured in a motor accident case, the insurer is absolved of indemnifying MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 6 of 24 the insured by paying compensation. It is, however, submitted by Mr. Dutta that MV Act never recognizes imposition of any penal interest, but in this case, the learned tribunal has awarded penal interest @ 12% which being unsustainable is liable to be set aside. Accordingly, Mr. Dutta has prayed to allow these appeals. 5.1. On the contrary, Mr. S.N. Kar, learned counsel for the claimants-Respondents in all these appeals has submitted by relying upon the decision in Gian Singh and others Vrs. Ram Krishnan Kohli and others; (2002) 3 T.A.C 671 (J &K) that sisters and brothers of the deceased being his legal representatives can maintain a claim petition U/S. 166 of the Act and thereby, the learned tribunal has not committed any illegality in granting compensation to the brothers and sisters in MAC No. 834 of 2017 (MACA No. 124 of 2023). On this point, Mr. Kar also relies on another decision in Maharashtra State Road Transport Vrs. Darab Khan and others; (2005) 3 T.A.C. 537 (Bombay). In addition, Mr. Kar, however, MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 7 of 24 has submitted that since the tribunal has rightly assessed the compensation, there is no need of any interference in these appeals and the learned tribunal has rightly imposed the penal interest only to secure payment of compensation to the claimants, otherwise the insurer may delay to pay the compensation to the claimants. It is also submitted by Mr. Kar that since IMT No.39 covers the liability of maximum 7 persons including the driver and cleaner while being engaged in the service of insured, the learned tribunal has not committed any illegality in fastening the liability to pay compensation to the insurer and, therefore, the awards to the claimants need no interference. Mr. Kar, has accordingly, prayed to dismiss all these appeals. However, none appears for the Respondent-owner of the vehicle despite being duly noticed. 6. After having considered the rival submissions upon perusal of record, since the learned tribunal has awarded compensation to the claimants in different claims, but arising out of one accident, this Court considers it appropriate to examine the liability of MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 8 of 24 the appellant-insurer to satisfy the award passed in all the claims simultaneously, while examining the quantum of compensation individually in each claim. Additionally, this Court also wants to examine specifically the maintainability of the claim and entitlement of the claimants in MAC No. 834 of 2017, who are major married brother and sister, since the maintainability of claim by them has been specifically challenged in MACA No. 124 of 2023 for being the major brother and sister. Before dwelling upon these issues, it needs to be emphasized that the evidence, both oral and documentary, on record clearly establishes the accident to have occurred due to rash and negligent driving of the driver of the offending vehicle i.e. the Truck bearing Regd. No.OD-05-W-8955 in which the deceased and injured persons were travelling at the relevant time and therefore, the finding of the learned trial Court with regard to accident occurring due to rash and negligent driving of the driver of offending vehicle needs no interference, rather it is confirmed and bears the approval of this Court. MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 9 of 24 Further, the evidence on record clearly reveals about the death of Habibulla Purkait, Khatip Purkait @ Raja Purkait and Arabilla Purkait and the injuries to Amadulla Purokait, Maniruddin Purkait and Hanif Molla in the aforesaid vehicular accident which was caused due to rash and negligent driving of the driver of the offending vehicle, since neither any evidence nor material is brought to the notice of this Court to dispute such facts by the appellant. On the above premises, especially when it is established by the evidence on record that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and some persons died and some persons sustained injuries in such accident, the legal representative of the deceased persons and the injured persons personally are entitled to receive compensation in view of the provisions under Section 166 of the M.V. Act, which provides for making application for compensation by the person who has sustained injury(ies) or by all or any of the legal representative of the deceased who suffered death in such accident. MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 10 of 24 7. Undoubtedly, the appellant herein seriously disputes about the maintainability of the claim by the married major brother and sister of the deceased in MAC Case No.834 of 2017 which needs to be addressed by this Court, but before adverting to such question, this Court makes it very clear that the claim by the other appellants for compensation is quite maintainable which the appellant could not validly dispute. Once the claim for compensation under MV Act is found maintainable, such claim should be allowed against the owner and driver of the offending vehicle, but the liability of the insurer will arise only when the liability of the insured is contractually protected by the insurer, who is contractually liable to indemnify the insured, who may be the owner of the offending vehicle under a contract of insurance. In this case the appellant is the insurer of the offending vehicle and thereby, it is contractually liable to indemnify the owner of the offending vehicle subject to terms and conditions of the contract of insurance, which has not been proven to have been violated by the insured inasmuch as neither MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 11 of 24 any evidence nor any material is produced by the appellant-insurance company to establish violation of terms and conditions of the policy by the insured-owner of the offending vehicle. The tribunal albeit has found all the claims by the claimants for compensation to be maintainable, but it has erroneously dismissed the claims for compensation against the respondent-owner of the offending vehicle without making any analysis of evidence or assigning any reason, however, at the same time, the learned Tribunal has saddled the liability of paying compensation to the appellant- insurance company and, therefore, such finding of dismissal of claim against respondent No.5-owner is unsustainable and, accordingly, the claims against the R5 are allowed ex parte. Further, the Tribunal has committed error in imposing penal interest @ 12% per annum after granting simple interest @ 6% per annum on each award, if the award is not satisfied within two months from the date 23.10.2007, but Section 171 of the M.V Act only recognize payment of Simple Interest on the award at such rate and from such date not MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 12 of 24 earlier than the date of making claim application. Accordingly, the direction for payment of penal interest @ 12% per annum over and above grant of 6% interest on each award being unsustainable needs to be ignored. 8. On coming to the issue of maintainability of claim by the major married brother and sister as advanced by the appellant-insurer to challenge the award made in MAC Case No.834 of 2017, it needs to be stated here that the objective of granting compensation under the MV Act is to ensure that just and fair compensation is paid to the aggrieved party, but Section 166 of the MV Act makes it ample clear that an application for compensation arising out of an accident of the nature specified in Sub-Section 1 of Section 165 may be made by all or any of the “legal representative” of the deceased, where death has resulted from the accident. The MV Act does not define the term “legal representative”, but generally “legal representative” means a person who in law represents the estate of a deceased person, and includes any MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 13 of 24 person(s) in whom legal right to receive compensatory benefit vests/vest. A “legal representative” may also include any person who intermeddles with the estate of the deceased and such person does not necessarily have to be a legal heir, who is the person entitled to inherit the surviving estate of the deceased. No doubt a legal heir may also be a “legal representative”, but may not be vice versa. Sub-Section 11 of Section 2 of the Code of Civil Procedure, 1908 describes “legal representative” as a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. An unmarried person dying intestate shall be succeeded by his and her legal heirs and in absence of parents, such unmarried person is ordinarily succeeded by his brother and sisters, even if they are married. It is, however, not uncommon in Indian society that in absence of parents, unmarried brother would be linked with other MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 14 of 24 family members; such as brothers and sisters for guidance & dependence and if such unmarried brother is working and earning, some time his brother and sister may be dependent on his income. Besides, it is not uncommon that the unmarried brother would contribute his income to his dependent brother and sister on various occasions. In this regard, this Court is also quite alive with the principle laid down by Apex Court in Gujarat State Road Transport Corporation, Ahmedabad Vs. Ramanbhai Prabhatbhai and others; (1987) 3 SCC 234, wherein it is held that a “legal representative” is one, who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parents or child. 9. In N. Jayasree and others Vs. Cholamandalam MS General Insurance Company Limited; (2022) 14 SCC 712, the Apex Court in Paragraph-16 has observed as under:- In our view, “16. term “legal representative” should be given a wider interpretation for the purpose of Chapter the MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 15 of 24 for XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased. As noticed above, MV Act is a benevolent legislation enacted the object of providing monetary relief to the victims or their families. Therefore, the MV Act calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfill its legislative intent. We are also of the view that in order to maintain a claim petition, it is sufficient for the claimant loss of to establish his dependency. Section 166 of the MV Act legal makes representative who suffers on account of the death of a person in a motor vehicle accident should have a for realization of compensation.” remedy every clear that it It is no doubt true that the appellant- insurer has relied upon the decision in New India Assurance Company Ltd. Vs. Anand Pal and Ors; 2024 (1) T.A.C. 3 (S.C.) to contend that the brother and sister would not be considered as dependent so as to entitle them to compensation, but the Apex Court in this decision has held that in absence of the evidence to the contrary, brother and sister would not be considered as dependents because they will either be independent and earning, or married, or be dependent on the father, but in this case the deceased was not MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 16 of 24 survived by his father and he was living with his brother and sister and therefore, factually this principle may not be applicable to the present case since the brother and sister of the deceased are found to be dependent on the income of deceased. In view of the above facts and circumstance and taking into account the law laid down by Apex Court in N. Jayasree(supra), the claimants in MAC Case No.834 of 2017 can well be considered to be dependents on the deceased so as to maintain a claim for compensation in terms of Section 166 of the MV Act. Accordingly, the plea as advanced by the appellant is answered in negative. 10. On coming back to the issue of quantum of compensation, this Court now adverts to the each case individually. In sequence, MAC Case No.833 of 2017 comes first, but on analysis of evidence, the deceased was found to be 35 years of age at the relevant time of his death and the Tribunal has taken his income by relying upon the minimum wages circular of Labour Commissioner of Odisha vide letter No.4909 of dated MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 17 of 24 30.04.2018, which prescribes the daily wages of an unskilled labourer then at Rs.214/- per day and accordingly, the learned Tribunal calculated the monthly income of the deceased at Rs.6420/- (Rs.214/- x 30) and adding 40% towards future prospects to the income of deceased, the learned Tribunal assessed the net monthly income of the deceased at Rs.8988/- per month (Rs.6420/- + 40% of Rs.6420/-) and thereafter, deducting 1/4th towards personal & living expenses since the deceased was having six dependents, the contribution of the deceased to his family was assessed at Rs.80,892/- per year. Accordingly, the quantum of compensation in MAC Case No.833 of 2017 has been quantified at Rs.12,94,272/- (Rs.80,892 x 16) + Rs.70,000/- towards loss of estate, consortium and funeral expenses. Accordingly, the final compensation to the claimants in the above claim has been rightly quantified by the learned Tribunal at Rs.13,64,272/- (Rs.12,94,272/- + Rs.70,000/-), which could not be validly disputed by the appellant-insurer. MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 18 of 24 11. In MAC No.834 of 2017, the deceased died as a bachelor and was having two dependents, who are his brother and sister. The deceased was found to be 19 years at the time of his death and accordingly, the compensation to the claimant has been rightly quantified at Rs.10,40,740/- [50% of Rs.8988/- x 12(months) x 18(multiplier) + Rs.70,000/- (towards conventional heads of loss of consortium estate and funeral expenses)]. While quantifying compensation to the claimants in this claim, the learned Tribunal has followed the same principle by taking the minimum wage circular of the State for an unskilled labourer @ Rs.240/- per day. In coming to the quantum of compensation in MAC No.835 of 2017, the deceased was having four dependents and his age was found to be 32 years at the relevant time of his death. Accordingly, the compensation to the claimants has been rightly quantified at Rs.13,64,272/- [(Rs.8988/- x 1/4th) x12(months) 16(multiplier) + Rs.70,000/- (towards conventional heads)]. MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 19 of 24 12. In coming to the quantum of compensation in MAC No.836 of 2017, the claimant therein is the injured who sustained injuries in the accident, but the learned Tribunal after referring to the injuries as per the injury report under Ext.15 granted compensation of Rs.30,000/-, which is just and proper and the appellant-insurer has not seriously disputed such compensation. Similarly in MAC No.837 of 2017, the claimant therein is the injured and the learned Tribunal after referring to the injuries of the injured as proved under Ext.16 has rightly quantified the compensation to the claimant at Rs.50,000/-, which is just and proper and cannot be disputed by the appellant-insurer. More or less the same in the case of the claimant in MAC No.838 of 2017, wherein the learned Tribunal after referring to the injuries of the injured as proved under Ext.17 granted a sum of Rs.30,000/- as compensation to the claimant, which is just and proper and could not be disputed by the appellant-insurer. 13. Now coming to the liability of the insurer, the learned Tribunal has found the appellant to be the MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 20 of 24 insurer of the offending vehicle which was having valid insurance at the relevant time of accident, but the validity of insurance policy of the offending vehicle belonging to the insured was never disputed by the appellant, however, the plea of the appellant in these appeals is that the appellant is not contractually liable to pay the compensation to the claimants. However, the learned Tribunal has fastened the liability of paying compensation to the appellant by referring to IMT.39 which provides legal liability to person employed in connection with operation and/or maintaining and/or loading and/or unloading motor vehicle (FOR GOODS VEHICLES) and the learned Tribunal has referred IMT.39 in the impugned judgment by extracting as under:- “In consideration of the payment of an additional premium of *……..it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workmen’s Compensation act, 1923 and subsequent amendments of that Act prior to the date of this Endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver (or cleaner MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 21 of 24 or conductor or person employed in loading/or unloading but in any case not exceeding seven in number including driver and cleaner) whilst engaged in the service of the insured in such occupation in connection in with the……and not exceeding seven number and will in addition be responsible for all costs and expenses incurred with its written consent.” 14. Nothing was brought to the knowledge of this Court to dispute above observation of the learned Tribunal with regard to IMT.39. Further, it is not in dispute that the offending vehicle was a goods carriage truck and on the date of accident, the deceased persons along with the injured persons in total six, who were working as a contract labourer under M/s. M.M Enterprises, were travelling in the offending truck carrying tower materials to the work site and therefore, there is no dispute that on the date of accident, the truck was loaded with working materials which was supposed to be used by the deceased and injured for installing the tower at the work site and therefore, they cannot be turned to have been travelling in this offending truck as a gratuitous passengers, rather they would be considered as worker/labourer going to the MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 22 of 24 work site with the working materials. Further, the insurance policy reveals payment of premium of Rs.100/- by the owner towards LL to persons employed in connection with operation (IMT.39) and therefore, the appellant-insurer is contractually liable to indemnify the owner of the offending vehicle to satisfy the awards as passed by the learned Tribunal. 15. In view of aforesaid discussions of facts and law, this Court has no hesitation to concur with the findings of the learned Tribunal with minor modification like allowing the claim ex parte against the respondent(R5)-owner and ignoring the penal interest as imposed by the learned Tribunal, but this Court does not find any justification to interfere with the quantum of compensation, liability to pay compensation to the claimants and the entitlement of the claimants so also the apportionment compensation made to the claimants in the respective claims. 16. In the result, all the six appeals stands dismissed with modification of the impugned judgment for allowing the claim against the owner-respondent ex MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 23 of 24 parte and setting aside the penal interest. Parties are directed to bear their own cost. All the six appeals are
Decision
disposed of. (G. SATAPATHY) JUDGE Orissa High Court, Cuttack, Dated the 16th day of May, 2025/Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 16-May-2025 15:43:27 MACA Nos. 125, 123, 124 ,126, 127& 128 of 2023 Page 24 of 24