The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.284 of 2023 New India Assurance Co. Ltd. …. Appellant Mr. A. A. Khan, Advocate -Versus- Bisweswsari Behera and others Respondent Mr. P.K. Mishra, Advocate ….
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 05.02.2024 Order No. 6. 1. Heard Mr. Khan, learned counsel for the appellant Insurance Company and Mr. Mishra, learned counsel for claimants respondent Nos.1 to 3. 2. No notice has been issued to respondent No.4. 3. Instant appeal is filed by the appellant Insurance Company challenging the impugned award dated 29th October, 2022 passed in M.A.C. Case No.29 of 2018(Sambalpur) by learned 2nd Motor Accident Claims Tribunal, Northern Division, Sambalpur on the grounds stated therein. 4. Mr. Khan, learned counsel for the appellant Insurance Company doubts the involvement of the offending vehicle and at the sametime, contended that the deceased was rather responsible for the alleged occurrence, the fact which was lost sight by the learned Tribunal and that apart, the impugned award with the compensation allowed was without deducting the income tax and professional tax and hence, therefore, the same is liable to be interfered with and set aside. In support of such contention with respect to contributory negligence, Mr. Khan, learned counsel for the appellant Insurance Company cited a decision of the Apex Page 1 of 4 Court in the case Nishan Singh and others Vrs. Oriental Insurance Company Ltd. through GM and others decided in Civil Appeal No.10145 of 2016 and disposed of on 27th April, 2018 and would submit that for the negligence onthe part of the deceased and not the driver of the offending vehicle, award of compensation by the learned Tribunal is unjustified. On the contrary, Mr. Mishra, learned counsel for respondent Nos. 1 to 3 submits that the evidence on record revealed that the driver of the offending vehicle suddenly applied brake and a result of which, the accident took place and hence, no negligence has been attributed to the deceased. It is further submitted that an occurrence witness, namely, P.W.2 narrated the accident and the manner in which, it had taken place and such evidence was believed and accepted by learned Tribunal and the same stands corroborated by filing of the chargesheet against the driver of the vehicle in question, so therefore, since the negligence is entirely of the driver of the offending vehicle, rightly, therefore the compensation was allowed and hence, the decision in Nishan Singh (Supra)as relied on by the other side is not applicable for the reason that in the said case, the driver of the truck was found to be not negligence and it was held so by the Tribunal though overruled by the High Court but subsequently restoredby the Apex Court. 5. In so far as the finding of the learned Tribunal is concerned, it has placed reliance on the evidence and particularly, P.W.2, an occurrence witness, who categorically stated that the accident took place with the negligence of the driver of the truck in question as it suddenly stopped the vehicle at the middle of the road. It is not in dispute that the driver of the offending vehicle has been chargesheeted for the accident. So, therefore, the learned Tribunal considering the evidence in its entirety having reached at a conclusion that the driver of the offending vehicle was rather negligent, the Court is of the humble view that the Page 2 of 4 deceased cannot be held to have contributed towards it. The Court is also view that decision in Nishan Singh(supra) is distinguishable in the facts and circumstances of the case as therein the driver of the Truck was found not to be negligent. In other words, the Court is inagreement with the finding of the learned Tribunal with respect to the negligence of the driver of the offending vehicle. 6. As to the amount of compensation awarded by the learned Tribunal concerned which stands at Rs.62,57,000/-. Mr. Khan, learned counsel for the appellant Insurance Company submits that the family is well off and none of the members to be a dependent of the deceased, so therefore, the amount of compensation is on the higher side. In reply and response to the above, Mr. Mishra, learned counsel for respondent Nos. 1 to 3 submits that there has been a deduction of 50% at the time of calculation of the amount, so therefore, it is to be sustained, however, fairly admits that the deduction on income tax and professional tax should have been taken into consideration by the learned Tribunal and if the same is considered, the figure arrives at Rs.62,34,360/-. 7. In fact, the learned Tribunal considering the age of the deceased and that he was working as a Manager in a nationalized bank at the time of accident deducted 50% towards his future prospects applying the decision on the Apex Court in National Insurance Company Limited Vrs. Pranay Sethi and others (2018) 69 OCR (SC)1and awarded the compensation amount of Rs. 7,63,650/-. Considering the above deduction,accepting the contention of Mr. Khan with deduction on income tax and professional tax, the Court is of the conclusion that the amount of compensation should be refixed at Rs.62,34,360/- payable at the same rate of interest as it has been fixed by the learned Tribunal. Page 3 of 4 8. Hence, it is ordered. 9. In the result, the appeal stands partly allowed. Consequently, the impugned award under Annexure-1 is hereby modified to the extent as aforesaid with a direction to the appellant Insurance Company to pay a sum of Rs.62,34,360/- to the claimants respondent Nos. 1 to 3 payable with interest at the rate of 6% per annum from the date of application made till its realization. It is further directed that in the event, the amount of compensation is deposited within eight weeks, on receipt and proof of the same,the same shall be disbursed to the claimants respondent Nos.1 to 3 proportionately by the orders of the learned Tribunal andthereafter, the statutory deposit made by the appellant Insurance Company shall be refunded to it with the interest accrued thereon. (R.K.Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 06-Feb-2024 11:01:21 Page 4 of 4