The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.301 of 2023 M/s. HDFC ERGO General Insurance Company Limited, Cuttack …. Appellant Mr. A.A. Khan, Advocate -Versus- Meghamala Pattanaik & others …. Respondents Mr. D.P. Pattnaik, Advocate for Respondent Nos.-1 & 2 CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 21.03.2024 Order No. 06. 1. Heard Mr. Khan, learned counsel for the appellant Insurance Company and Mr. Pattnaik, learned counsel for the claimant respondent Nos.1 and 2. 2. 3. None appears for respondent No.3. Instant appeal is filed by the appellant Insurance Company challenging the impugned order dated 26th November, 2022 passed in MAC Case No.73 of 2018 by the learned 1st MACT, Jajpur on the grounds stated therein. 4. Learned Tribunal has allowed compensation for a sum of Rs.32,61,944/- along with interest at the rate of 6% per annum to be payable to the claimants respondent Nos.1 and 2 from the date of application filed i.e. on 17th May, 2018 with other consequential directions. 5. Mr. Khan, learned counsel for the appellant Insurance Company submits that there has been delay in lodging of the F.I.R. after the occurrence, hence, therefore, a doubt is entertained with regard to the claim vis-(cid:224)-vis the alleged accident. It is also submitted Page 1 of 4 that involvement of the offending vehicle is in question on account of the delay in lodging of the report from the side of the claimants respondent Nos.1 and 2 and that apart, no occurrence witness was ever examined to prove the same. It is lastly submitted that the learned Tribunal committed a serious wrong in fixing the revised pay/salary of the deceased. Finally, the contention is that the loss of consortium would have been Rs.40,000/- instead of Rs.1,10,000/- and also about the penal interest levied by the learned Tribunal to be unwarranted. 6. On the other hand, Mr. Pattnaik, learned counsel for the claimants respondent Nos. 1 and 2 submits that the family of the deceased had approached the local P.S. to lodge a report 2-3 days later but the same has not been entertained due to delay, which compelled them to file a complaint before a local court, whereafter, investigation was ordered and subsequent thereto, Jenapur P.S. Case No.110 of 2018 was registered and it has led to the submission of chargesheet. It is, hence, contended by Mr. Pattnaik that the accident is not to be disbelieved so also the involvement of the offending vehicle as the reason for lodging of report with the complaint filed stands fully explained. In so far as the salary of the deceased is concerned, Mr. Pattnaik lastly submits that learned Tribunal rightly accepted the revised pay as it had come into force with effect from 1st January, 2018 by order dated 22nd October, 2017 of the Department of Higher Education, Government of Odisha and while claiming so, he produced a copy of the said order. 7. As to the alleged occurrence, admittedly, a complaint was filed by the claimants respondent Nos. 1 and 2, which then led to registration of a police case and investigation further leading to the filing of chargesheet. Of course, there has been delay in lodging of F.I.R. The claim is that the family of the deceased had approached the local P.S. 2-3 days after the accident but the same was not accepted and entertained is not to be entirely disbelieved. In any Page 2 of 4 case, the complaint was treated as a report by the orders of the local court and with the investigation concluded, the accident is prima facie proved so also the involvement of the offending vehicle is established. So therefore, the Court is not inclined to entertain any doubt regarding the accident besides the involvement of the vehicle in question. 8. With respect to the salary of the deceased as per the order dated 22nd October, 2017 of the Government of Odisha in the Department of Higher Education, the pay revision was to come into force with effect from 1st January, 2018. The deceased died on 1st April, 2018 and by that time, the revision pay had already come into force. Mr. Khan, learned counsel for the appellant Insurance Company refers to the decision of Smt. Sarla Verma and others Vrs. Delhi Transport Corporation and another 2009(2) T.A.C. 677 (S.C.) to contend that such pay revision should not have been considered by the learned Tribunal while fixing the salary of the deceased. It is contended that the compensation would have to be determined with reference to scale of pay applicable at the time of death of the deceased, which is what has been held by the Apex Court in Smt. Sarla Verma (supra). No doubt, the scale of pay and the salary of the deceased is sought to be proved through Ext.8. But having regard to the fact that it is not in relation to any future revision in pay but by the time, the accident had taken place, such revision had already been brought into force with effect from 1st January, 2018, the Court is of the considered view that the decision in Smt. Sarla Verma (supra) is not applicable and hence, in agreement with the finding of learned Tribunal which rightly fixed the revised grant-in- aid salary at Rs.38,067/-. In any case, had the deceased been alive, he would have received the revised pay and it is not a case of future pay revision since such revision had already been in force prior to the date of the alleged accident. So therefore, the Court is not inclined to accept the contention of Mr. Khan, learned counsel for Page 3 of 4 the appellant Insurance Company on the point of salary either. But, in so far as the loss of consortium is concerned, the Court is in favour of allowing a sum of Rs.70,000/- only towards general damages instead of Rs.1,10,000/-. The Court is also inclined to dispense with the penal interest, which has been levied by the learned Tribunal keeping in view of the facts and circumstances of the case. 9. Hence, it is ordered. 10. In the result, the appeal stands partly allowed. Consequently, the impugned award dated 26th November, 2022 passed in MAC Case No.73 of 2018 by the learned 1st MACT, Jajpur is hereby modified to the extent as aforesaid with a direction to the appellant Insurance Company to deposit Rs.32,21,944/- payable along with the interest at the rate of 6% per annum within eight weeks from today, which shall thereafter be disbursed in favour of the claimants respondent Nos.1 and 2. The Court directs that the compensation shall not carry any penal interest. Furthermore, it is directed that the statutory deposit along with the interest accrued thereon shall be refunded to the appellant Insurance Company soon after deposit of compensation and its disbursement in favour of the claimants respondent Nos.1 and 2. 11. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 27-Mar-2024 15:11:57 Page 4 of 4