The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.533 of 2018 (From the judgment dated 12th February, 2018 of learned 4th MACT, Cuttack passed in MAC No.144 of 2015/172 of 2016) MACA No.533 of 2018 & 512 of 2018 Rashmi Pawan Kumar Sharma & Ors. (in MACA No.533/2018) Divisional Manager, National Insurance Company Ltd. (in MACA No.512/2018) …. Appellants -versus- Kumudini Mahanta & Another (In MACA No.533/2018) Rashmi Pawan Kumar Sharma & Ors. (In MACA No.512/2018) …. Respondents Advocate(s) appeared in this case:- For Appellant
Legal Reasoning
: Mr. D.C. Dey, Advocate (in MACA No.533/2018) For Respondents Mr. Subrat Satpathy, Advocate (in MACA No.512/2018) : Mr. Subrat Satpathy, counsel for Respondent No.2 (in MACA No.533 of 2018) Mr. D.C. Dey, Respondents 1 No.512 of 2018) counsel for to 3 (in MACA CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 29th March, 2023 B.P. Routray, J. 1. The matters are taken up through hybrid mode. MACA No.533 of 2018 & 512 of 2018 Page 1 of 6 2. Heard Mr. S. Satpathy, learned counsel for the insurer and Mr. D.C. Dey, learned counsel for the claimants. 3. Both the appeals being arise out of same impugned judgment, are
Decision
heard together and disposed of by this common judgment. 4. Present appeals are directed against the impugned judgment dated 12th February, 2018 of learned 4th MACT, Cuttack passed in MAC No.144 of 2015/172 of 2016, wherein compensation to the tune of Rs.23,19,000/- along with interest @ 6% per annum from the date of filing of the claim application, i.e., 18th March, 2015 has been granted on account of death of deceased Pawan Kumar Sharma in the motor vehicular accident dated 17th June, 2014. 5. MACA No.512 of 2018 has been filed by the insurer challenging the award and MACA No.533 of 2018 has been filed by the claimants praying for enhancement of the compensation amount. 6. The death of the deceased in the accident involving the offending vehicle, i.e. Bolero bearing registration number OR-09-H-3887 is questioned by the insurance company. 7. According to the claimants, while the deceased came out on road for morning walk on 17th June, 2014, the offending vehicle dashed him violently causing his death. The police though initially registered a case under Section 279/304-A of I.P.C. but submitted the charge-sheet alleging offences under Sections 302/201 I.P.C. against the accused driver, namely Jayanta Mahanta of the offending vehicle. It is admitted at the bar that the criminal prosecution against said accused Jayanta is MACA No.533 of 2018 & 512 of 2018 Page 2 of 6 pending in the court of learned Sessions Judge, Keonjhar in S.T. Case No.17/187 of 2015-14. 8. An eye witness namely Hadibandhu Ranjit has been examined as P.W.2 from the side of the claimants. He has narrated in his evidence how the offending vehicle driven by the accused driver dashed the deceased from behind. This Hadibandhu Ranjit was also examined in the Sessions trial as P.W.9 where he turned hostile. So, Mr. Satpathy relying on his statement given in the sessions trial submits that the statements given by this particular witness in the claim application as P.W.2 is unworthy of credit and as such, negligence on the part of accused driver is absent to establish death of the deceased as an accident. Mr. Satpathy continues to submit that when death of the deceased is treated as murder and charge-sheet has been submitted by police against the accused as murder simplicitor, the claim for compensation under Section 166 of the MV Act is not maintainable. 9. Before delving into the submissions of the insurer, it is important to mention here that involvement of the offending vehicle in the occurrence and validity of insurance policy in respect of the offending vehicle is not disputed. It is well settled that the evidences brought in a criminal case arising out the same accident is for a different purpose and cannot be relied on in the claim application filed for the purpose of compensation. Further the Hon’ble Supreme Court in the case of Smt. Rita Devi and Others v. New India Assurance Co. Ltd. and Another, 2000(2) T.A.C. 213 (SC) have observed that the difference between a murder which is not an accident a murder which is an accident depends on the proximity of the cause of such murder. MACA No.533 of 2018 & 512 of 2018 Page 3 of 6 10. In the case at hand, the fact remains that the charge of murder has not yet been proved in the criminal proceeding and trial is still pending. Looking to the evidenced of P.W.2, it is established to be a case of accident. Therefore it is difficult to accept the contention of the insurer to treat the death of deceased as murder simplicitor. To see otherwise, even if the contention of the insurer is accepted that this is a case of murder, then also rash and negligent driving on the part of the accused driver cannot be separated from the Act. Whether it is a murder simplicitor or accidental murder or accident simplicitor, the essential requirement of negligence in use of motor vehicle would remain present in every case. Therefore, the contention of Mr. Satpathy that the claim for compensation is not maintainable under Section 166 of the MV Act is found unacceptable from any angle. The language used in Section 147 is clear and specific that “by use of or arising out of the use of the vehicle”. Further, the word ‘accident’ is not defined in the MV Act. When the use of the offending vehicle in the accident (or to say the occurrence) is not disputed and the validity of the insurance policy is admitted, the liability on the part of the owner and corresponding insurance company cannot be denied. Thus, this court agrees with the conclusion arrived by the tribunal to fix the liability on the insurance company to pay the compensation amount. 11. Next with regard to quantum of compensation, it is seen that the tribunal by assessing the income of deceased at Rs.17,300/- per month has computed loss of dependency at Rs.22,49,000/-. Mr. Dey, learned counsel for the claimants here prays to increase the income of the deceased to Rs.31,305/- which was gross salary of the deceased. MACA No.533 of 2018 & 512 of 2018 Page 4 of 6 12. Admittedly, as per Ext.10 – the salary certificate, the deceased received his gross salary of Rs.31,305/- per month before his death. Here Mr. Satpathy, learned counsel submits to deduct all such allowances added in monthly salary of the deceased from the count of his income. I do not agree with the submissions of Mr. Satpathy. Because, allowances given to the employee under different heads are nothing but to meet his expenses on different counts. It is true that while deriving loss of dependency, a fixed portion of the income is deducted towards personal expenses. Therefore deduction of allowances from the income would amount to double deduction. In the case of National Insurance Co. Ltd. vs- Indira Srivastava & Ors, 2008 AIR SCW 143, the Supreme Court have clarified that, the amounts which were required to be paid to the deceased by his employer by way of perks should be included for computation of his monthly income. Accordingly, the annual income of the deceased is calculated at Rs.3,75,660/-. Considering the prevalent income tax rate an amount of Rs.12,500/- is deducted towards income tax and Rs.2500/- towards professional tax, thereby reducing his net income to Rs.3,60,660/- per annum. Adding future prospects to the extent of 30% thereto the amount becomes Rs.4,68,858/-. Deducting 1/3rd towards personal expenses and applying multiplier ‘13’, total loss of dependency is computed at Rs.40,63,436/-. Adding Rs.1,20,000/- towards loss of consortium to the wife and two children and further Rs.30,000/- towards loss of estate and funeral expenses, the total compensation is determined at Rs.42,13,436/-, payable along with interest @ 6% per annum. MACA No.533 of 2018 & 512 of 2018 Page 5 of 6 13. In the result both the appeals are disposed of with a direction to the insurer, i.e. National Insurance Co. Ltd. to deposit the modified compensation of Rs.42,13,436/- (forty-two lakhs thirteen thousand four hundred thirty-six) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 18th March, 2015, within a period of two months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be decided by learned tribunal. 14. It is made clear that the right of recovery granted in favour of the insurance company by the tribunal is left undisturbed. 15. The statutory deposit made by the insurer - Appellant in MACA No.512 of 2018 before this court along with accrued interest be refunded on proper application and on production of proof of deposit of the awarded amount before the tribunal. 16. The copies of depositions of witnesses rendered in the criminal case, as produced in course of hearing by Mr. Satpathy are kept on record. 17. An urgent certified copy of this order be issued as per rules. M.K. Panda, Sr. Steno (B.P. Routray) Judge MACA No.533 of 2018 & 512 of 2018 Page 6 of 6