The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK M.A.C.A. Nos.1203 & 1228 of 2015 (In the matter of appeals under Section 173 of the Motor Vehicles Act, 1988) In M.A.C.A No.1203 of 2015 Urbasi Behera and others Rotosh Agrawalla and another -versus- …. …. Appellants Respondents For Appellants - For Respondents - Mr.A.S. Nandy, Advocate. Mr. S. Satpathy, Advocate. (for respondent No.2) In M.A.C.A No.1228 of 2015 …. Appellant Reliance General Insurance Co. Ltd. Represented through the Authorized Signatory Azim Ganj House, 4th Floor, Camac Street, Kolkata-700017 -versus- Urbasi Behera and others …. Respondents For Appellant - Mr. S. Satpathy, Advocate. For Respondents -
Legal Reasoning
Mr. A. S. Nandy, Advocate. (for respondent Nos.1 to 4) Page 1 of 16 {{ 2 }} CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :03.10.2024 :: Date of Order :08.10.2024 A.C. Behera, J. Since both the appeals were preferred by the respective appellants challenging one judgment/award passed on dated 31.07.2015 in M.A.C. Case No.11 of 2008 by the learned 1st M.A.C.T.- cum-District Judge, Dhenkanal, then both the appeals have been taken up together analogously for their final disposal through this common judgment. 2. The appeal vide M.A.C.A. No.1203 of 2015 was preferred by the appellants (claimants-petitioners before the learned Tribunal in M.A.C. Case No.11 of 2008) challenging the impugned judgment/award on the ground of inadequacy of the awarded compensation amount for enhancement of the same. The appeal vide M.A.C.A. No.1228 of 2015 was preferred by the appellant (Insurance Company-opposite party No.2 in M.A.C. Case No.11 of 2008) challenging the impugned judgment/award for setting aside the same passed against the said Insurance Company. 3. The factual backgrounds of these two appeals, which prompted the appellants for preferring the same are that, Page 2 of 16 {{ 3 }} On dated 06.12.2007 at about 5:50 A.M., while the deceased Pabitra Behera was coming from his residence through his motorcycle bearing Registration No.OR-19B-4093 on the left side of N.H.42 in a normal speed to join in his duty at Captive Power Plant of NALCO, near the main gate of the said power plant, an offending truck bearing Registration No.CG-04T-6484 of opposite party No.1 in M.A.C. Case No.11 of 2008 came from his opposite side on being driven by its driver with a very high speed and in a rash and negligent manner and suddenly dashed against his motorcycle and by the result of such accident, he (deceased) thrown away from his motorcycle with heavy force and sustained multiple grievous injuries all over his body and for his such motor vehicular accidental injuries, he (Pabitra Behera) expired. For that motor vehicular accidental death of the deceased through the aforesaid offending truck of the opposite party No.1 due to the rash and negligent driving of the driver thereof, a case vide NALCO P.S. Case No.135 of 2007 was registered against the driver of the offending truck under Sections 279, 337 & 304-A of the IPC, 1860 and an investigation was conducted. During investigation, the offending truck of the opposite party No.1 along with its documents including the insurance policy were seized and the dead body of the deceased Pabitra Behera was sent for postmortem examination and accordingly, postmortem examination over the dead body Page 3 of 16 {{ 4 }} of the deceased was conducted and on completion of the investigation, charge-sheet under Sections 279, 337 & 304-A of the IPC, 1860 was submitted against the driver of the offending truck. Thereafter, the legal representatives of the deceased Pabitra Behera i.e. his wife, father and children filed a case vide M.A.C. Case No.11 of 2008 against the owner and insurer of the above offending truck bearing Registration No.CG-04T-6484 arraying them as opposite party Nos.1 & 2 respectively claiming their just compensation for such motor vehicular accidental death of the deceased stating that, at the time of death of the deceased through such motor vehicular accident, he (deceased) was a permanent employee of National Aluminum Company Ltd., Angul and his monthly salary was Rs.30,000/- and they (petitioners) were his dependants, because the deceased was the only earning member of their family. 4. Having been noticed from the learned Tribunal in M.A.C. Case No.11 of 2008, the owner of the offending truck i.e. opposite party No.1 was set ex-parte without filing any written statement and without contesting the same. Whereas, the opposite party No.2 (Insurance Company) contested the case of the petitioners (claimants) by filing its written statement denying the involvement of the so called offending truck with such Page 4 of 16 {{ 5 }} accident and also denying the occupation and income of the deceased stated by the petitioners in their claim petition. 5. The specific stands/pleas of the Insurance Company (opposite party No.2) in its written statement for its exoneration was that, at the time of the accident, the so called offending truck was moving on the road violating the insurance policy conditions thereof. As there was breach of policy conditions by the owner of that truck i.e. opposite party No.1, for which, no accidental liabilities for the death of the deceased can be fastened upon it i.e. opposite party No.2 (Insurance Company). As such, the Insurance Company (opposite party No.2) claimed for the dismissal of the claim application of the petitioners against the opposite party No.2 (Insurance Company). 6. In order to substantiate the claim of the petitioners against the opposite parties, the petitioners examined two witnesses from their side including the widow wife of the deceased i.e. petitioner No.1 as P.W.1 and exhibited series of documents vide Exts.1 to 9 i.e. certified copy of the F.I.R., charge-sheet, seizure list, inquest report, postmortem report, pay slip of the deceased, salary slips of the deceased and D.L. of the driver of the offending truck on their behalf. Page 5 of 16 {{ 6 }} But, none of the opposite parties including the opposite party No.2 (Insurance Company) adduced any oral or any documentary evidence from their side. 7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the learned Tribunal answered all the issues in M.A.C. Case No.11 of 2008 in favour of the petitioners and against the opposite parties including the opposite party No.2 (Insurance Company) and held that, the death of the deceased Pabitra Behera was the outcome of the motor vehicular accident caused through the use of the offending truck bearing Registration No.CG-04T-6484 of the opposite party No.1 on dated 06.12.2007 at about 5:50 A.M. on N.H.42 near the main gate of the Captive Power Plant of NALCO only for the rash and negligent driving of the driver thereof and the petitioners being the legal heirs of the deceased, they were his dependants. He (deceased Pabitra Behera) had a regular and permanent job in NALCO and his monthly salary was Rs.19,041/- and his age was 35 years at the time of his death. The offending truck of the opposite party No.1 was covered with valid insurance policy before the opposite party No.2 (Insurance Company) at the time of accident of the deceased through the use of the same. On the basis of the aforesaid findings and observations, the learned 1st M.A.C.T., Dhenkanal passed the judgment/award in M.A.C. Case No.11 Page 6 of 16 {{ 7 }} of 2008 on dated 31.07.2015 entitling the petitioners to get compensation of Rs.27,66,760/- in total on the ground of their loss of dependency, loss of estate, loss of consortium, transportation and funeral expenses and directed opposite party No.2 (Insurance Company) to pay the said awarded amount to the petitioners with interest @ 6% thereon with effect from 10.01.2008 till its payment. 8. On being dissatisfied with the aforesaid quantum of awarded amount passed on dated 31.07.2015 in M.A.C. Case No.11 of 2008, the claimants (petitioners) thereof challenged the same by preferring an appeal vide M.A.C.A. No.1228 of 2015 being the appellant against the opposite parties thereof for the enhancement of the same on the ground of inadequacy. Likewise, the Insurance Company (opposite party No.2 before the learned Tribunal in M.A.C. Case No.11 of 2008) challenged the said impugned award passed on dated 31.07.2015 in M.A.C. Case No.11 of 2008 by preferring an appeal vide M.A.C.A. No.1228 of 2015 for the total exoneration of opposite party No.2 (Insurance Company) from bearing the accidental liabilities in order to set aside the impugned judgment/award against the appellant (opposite party No.2, Insurance Company) on the ground that, at the time of the accident, the offending truck was not covered with any insurance policy before its company and the awarded Page 7 of 16 {{ 8 }} compensation amount passed by the learned Tribunal in favour of the claimants thereof in M.A.C. Case No.11 of 2008 is high and excessive. 9. I have already heard from the learned counsels for the claimants and Insurance Company in both the appeals against each other. 10. During the course of arguments of these appeals, the learned counsel for the Insurance Company (opposite party No.2 in M.A.C. Case No.11 of 2008) submitted a Xerox copy of the insurance policy contending that, at the time of accident of the deceased, the offending truck was not covered with any insurance policy before its company, for which, on the basis of such Xerox document, the Insurance Company (opposite party No.2 in M.A.C. Case No.11 of 2008) shall be exonerated from payment of any compensation amount to the petitioners. 11. It appears from the record that, the claimants (petitioners in M.A.C. Case No.11 of 2008, those are the dependents of the deceased) have specifically stated in their claim petition as well as in their evidence that, at the time of causing accident to the deceased Pabitra Behera through the offending truck of the opposite No.1, the said offending truck was duly insured before the opposite party no.2 (Insurance Company), to which, they have indicated with policy number in their claim petition and the same has also been reflected in the seizure list as well as in the charge-sheet vide Exts.2 & 3 prepared by the police during investigation. During enquiry of Page 8 of 16 {{ 9 }} M.A.C. Case No.11 of 2008 before the learned Tribunal, the Insurance Company has not objected to the exhibits i.e. seizure list and charge-sheet vide Exts.2 & 3 as well as the contents thereof. There is no specific pleadings (averments) in the written statement of the Insurance Company disputing/denying the insurance coverage of the offending truck and its policy number stated by the petitioners in their petition as well as in the seizure list and charge-sheet vide Exts.2 & 3 respectively. No evidence has been adduced on behalf of the opposite party No.2 (Insurance Company) stating that, policy number indicated in the petition, seizure list and charge-sheet about the coverage of the insurance policy of the offending truck at the time of the accident before its company was false. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts in the ratio of the following decisions:- (i) 1996 ACJ 1220 (Orissa)—Oriental Insurance Co. Ltd. Vrs. Sk. Nasiruddin and others—(Para 7)—M.V.Act, 1939—Section 95 (Section 147 of the 1988 Act)—Motor Insurance—Liability of Insurance Company—Claimant in his claim petition mentioned the name of insurance company and the policy number—No averment in the written statement of the owner that the vehicle was insured—Insurance company did not deny the insurance of the offending vehicle— Whether the insurance company is liable—Held: Yes. (ii) 2024 (1) Civ. L. J. 473 (Orissa)—Oriental Insurance Co. Ltd. Vrs. Babaji Charan Sahu (since dead) through LRs and another—(Para 9)—M.V.Act, 1988— Sections 149 & 173—Seizure list prepared by the police and exhibited on behalf of the claimants had not been objected by Page 9 of 16 {{ 10 }} the appellant-Insurance Company—Accordingly, the finding of the Tribunal that, the appellant-Insurance Company is liable the compensation amount—Was to confirmed. indemnify (iii) 2024 (2) Civ. L. J. 116 (Jharkhand)—Branch Manager, United India Insurance Company Ltd. through its Divisional Office Vrs. Meera Devi and another—(Paras 10 to 12)—M.V.Act, 1988—Section 173—Documentary evidence had not been rebutted by the Insurance Company at any stage of the proceedings before the Tribunal—Therefore, the appellant-insurer cannot be allowed to contend that, the contents of the document had not been proved. 12. When, there is no pleadings and evidence on behalf of the Insurance Company (opposite party No.2 in M.A.C. Case No.11 of 2008) that, the insurance policy number of the offending truck covering the date of accident stated in the pleadings as well as in the oral and documentary evidence of the petitioners was false, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the plea of the Insurance Company for its exoneration from its accidental liabilities on the ground of lack of insurance coverage of the offending vehicle at the time of the accident of the deceased through that offending vehicle (truck) cannot be sustainable under law. 13. So far as the inadequacy of the awarded compensation amount in favour of the petitioners (appellants in M.A.C.A. No.1203 of 2015) is concerned; Page 10 of 16 {{ 11 }} It is the undisputed case of the parties that, the deceased was a regular and permanent employee of NALCO at the time of his motor vehicular accidental death and his age was 35 years and his monthly income from his salary was Rs.19,041/-. It appears from the impugned award that, nothing has been added with his salary towards his future prospect for computation of compensation, though, at the time of motor vehicular accidental death of the deceased, his remaining service period was more than 20 years till his superannuation. Therefore, in order to increase/enhance the awarded compensation amount through addition of some amounts with the monthly salary of the deceased at the time of his death towards his future prospects as well as for addition of some amounts in the heads awarded by the learned Tribunal, the learned counsel for the appellants (petitioners) relied upon the ratio of the following decisions i.e. National Insurance Company Ltd. Vrs. Pranay Sethi and Others reported in 2017 (4) T.A.C. 673 (S.C.), Rajesh and others Vrs. Rajbir Singh and others reported in 2013 (3) T.A.C. 697 (S.C.), Smt. Neeta W/o Kallappa Kadolkar and others etc. Vrs. The Divisional Manager, MSRTC, Kolhapur reported in 2015 (1) T.A.C. 340 (S.C.) and New India Page 11 of 16 {{ 12 }} Assurance Co. Ltd. Vrs. Nim Indrajit Singh and another reported in 2013 (4) T.A.C. 557 (Orissa). By the time of pronouncement of the impugned judgment/award on dated 31.07.2015, the Constitutional Bench judgment of the Supreme Court of India between National Insurance Company Vrs. Pranay Sethi and others reported in 2017 (4) T.A.C. 673 (S.C.) was not pronounced. 14. The adequacy and inadequacy of the impugned award passed by the learned Tribunal in M.A.C. Case No.11 of 2008 are under challenge in M.A.C.A. No.1203 of 2015. As, in fact, at the time of passing of the impugned award in M.A.C. Case No.11 of 2008 on dated 31.07.2015, the Constitutional Bench judgment of Supreme Court between National Insurance Company Vrs. Pranay Sethi and others reported in 2017 (4) T.A.C. 673 (S.C.) was not pronounced, for which, the question of following the guidelines formulated by the Apex Court in ratio of the said decision by the learned Tribunal had not arisen. So, the impugned award/judgment passed in M.A.C. Case No.11 of 2008 by the learned Tribunal cannot be commented for non- following the guidelines of the Constitutional Bench judgment of Supreme Court reported in 2017 (4) T.A.C. 673 (S.C.). 15. In the judgment reported in (2009) 6 SCC 121; Sarla Verma Vrs. Delhi Transport Corporation and another at Paragraph 24, there was Page 12 of 16 {{ 13 }} directions/guidelines for addition of 50% towards future prospects of the deceased with his monthly salary for computation of compensation in a motor vehicular accidental death of the deceased, where the deceased had a permanent job at the time of his accidental death having his age below 40 years. 16. Here in this case at hand, when the age of the deceased was 35 years and he had a regular and permanent job in NALCO, then at this juncture, in view of the above decision of the Apex Court reported in (2009) 6 SCC 121; Sarla Verma Vrs. Delhi Transport Corporation and another, 50% with the monthly salary of the deceased should have been added towards his future prospects for computation of compensation in respect of his motor vehicular accidental death. But, the learned Tribunal has not done so. For which, there is justification under law for making some interference with the impugned award passed by the learned Tribunal for enhancement of the awarded compensation amount for the motor vehicular accidental death of the deceased through addition of 50% with the monthly salary of the deceased towards his future prospects for calculation of the compensation. As, the petitioners in M.A.C. Case No.11 of 2008 were four in numbers and they being the wife, old father and minor children of the deceased were the dependants of the deceased, for which, at the time of Page 13 of 16 {{ 14 }} providing compensation under the heading of consortium, the learned Tribunal should have awarded consortium under two other heads i.e. parental and filial consortium for the petitioner Nos.2, 3 & 4 in addition to the spousal consortium of Rs.5,000/- for the petitioner No.1 (wife of the deceased), but the learned Tribunal has not done so. 17. Therefore, the appeal preferred by the appellants (claimants) vide M.A.C.A. No.1203 of 2015 is to be allowed in part and the appeal preferred by the appellant (Insurance Company) is to be dismissed. 18. As per the discussions and observations made above, the petitioners are entitled for their just compensation amount as per the calculation given below:- Monthly salary of the deceased at the time of his death Rs.19,041/- + Rs.9,520.50/- (addition of 50% with the salary towards future prospects, as the age of the deceased was less than 40)=Rs.28,561.50/-(monthly income)–Rs.7,140/-(1/4th deduction towards personal and living expenses of the deceased, as the number of his dependents were four)=Rs.21,421.50/-X 12=Rs.2,57,058/-(annual income) X 16 (multiplier as per Sarla Verma’s case, as the age of the deceased was within 31 to 35 years)= Rs.41,12,928/- + Rs.20,000/-(for funeral expenses Rs.5,000/-, loss of estate Rs.5,000/- and transportation & attendance charges Rs.10,000/-, as awarded by the learned Tribunal)=Rs.41,32,928/- + Rs.20,000/- (for loss Page 14 of 16 {{ 15 }} of spousal, parental and filial consortium i.e. Rs.5,000/- for each petitioners)=Rs.41,52,928/- (Rupees Forty One lakh Fifty Two Thousand Nine Hundred Twenty Eight). Therefore, as per the calculations made above, the petitioners in M.A.C. Case No.11 of 2008 are entitled for Rs.41,52,928/- in total as their just compensation with interest thereon @ 7.5% per annum as per the prevailing Bank interest at the time of passing of the impugned award. The Insurance Company (opposite party No.2 in M.A.C. Case No.11 of 2008) is directed to deposit the said awarded amount i.e. Rs.41,52,928/- (Rupees Forty One lakh Fifty Two Thousand Nine Hundred Twenty Eight) within two months hence with interest @ 7.5% per annum thereon since 10.01.2008 till its deposit before the learned 1st M.A.C.T.- cum-District Judge, Dhenkanal in reference to M.A.C. Case No.11 of 2008. 19. In result, the appeal filed by the appellants vide M.A.C.A. No.1203 of 2015 is allowed in part and the appeal filed by the appellant (Insurance Company) vide M.A.C.A. No.1228 of 2015 is dismissed on contest.
Decision
Pending application (s), if any, shall stand disposed of. The Registry is to transmit this judgment to the learned Tribunal for payment of the awarded compensation amount with interest thereon as directed above in reference to M.A.C. Case No.11 of 2008 to the petitioners/claimants thereof. Page 15 of 16 {{ 16 }} The statutory deposited amount, if any, made by the appellant (Insurance Company) in M.A.C.A. No.1228 of 2015 shall be refunded to the appellant (Insurance Company) on production of proper receipt regarding the deposit of the above awarded compensation amount with interest thereon before the learned Tribunal in M.A.C. Case No.11 of 2008. 20. Accordingly, both the appeals are disposed of finally. Orissa High Court, Cuttack. 08.10.2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Oct-2024 11:14:17 Page 16 of 16