The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.889 of 2016 & MACA No.597 of 2016 (From the judgment dated 30th April, 2016 passed by learned 5th M.A.C.T., Puri in M.A.C. No.2-276 of 2015-2013) In MACA No.889 of 2016 Smt. Kaberi Dangua and another …. Appellants -versus- Pradipta Kumar Das and another …. Respondents Advocate(s) appeared in this case:- For Appellants : Mr. P.K. Mishra, Advocate For Respondents
Legal Reasoning
: Mr. P.K. Mahali, Advocate on behalf of Mr. S.K. Sarangi, Advocate for Respondent No.2 In MACA No.597 of 2016 New India Assurance Co. Ltd. …. Appellant -versus- Smt. Kaberi Dangua and another …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. P.K. Mahali, Advocate on behalf of Mr. S.K. Sarangi, Advocate For Respondents : Mr. P.K. Mishra, Advocate For Respondent Nos.1 & 2 MACA Nos.889 & 597 of 2016 Page 1 of 7 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 21st March, 2023 B.P. Routray, J. 1. Heard Mr. P.K. Mishra, learned counsel for the claimants and Mr. P.K. Mahali, learned counsel, on behalf of Mr. S.K. Sarangi, learned counsel for the Insurance Company. 2. Both the appeals being arise out of the same judgment dated 30.04.2016 of learned 5th MACT, Puri in M.A.C. No.2-276 of 2015- 2013, wherein compensation to the tune of Rs.8,71,200/- has been granted along with simple interest @6% per annum to the claimants from the date of filing of the claim application, i.e. 24.9.2013 on account of death of the deceased in a motor vehicular accident dated
Decision
8.5.2013, are heard together and disposed of by this common order. 3. MACA No.889 of 2016 has been filed by the claimants praying for enhancement of the compensation amount and MACA No.597 of 2016 has been filed by the insurance company challenging the award. 4. The accident is the result of involvement of three vehicles, Viz. the Mini Truck bearing Registration No.OR-02-Q-1789, the Trekker MACA Nos.889 & 597 of 2016 Page 2 of 7 bearing Registration No.OR-04-6313 and the Scooty bearing Registration No.OR-02-AP-4720. The deceased was riding the Scooty and the Trekker was coming from its behind. The Mini Truck dashed the Trekker from behind and as a result of the same, the Trekker dashed the Scooty. The deceased, who was riding the Scooty, fell down on the road and succumbed to the injuries sustained in the accident. The learned Tribunal upon adjudication has come to the finding that the driver of the Trekker was equally negligent for the cause of accident since it was non-maintaining safe-distance from the Scooty. By holding so, learned Tribunal attributed 50% negligence on the driver of the Trekker and consequently, 50% of the compensation amount was directed to be paid by the insurer of the Mini Truck. 5. The claimants challenged such attribution of negligence to the extent of 50% on the driver of the Trekker. Mr. Mishra, learned counsel for the claimants contends that it is the driver of the Mini Truck, who was completely negligent in causing the accident and therefore, the finding of learned Tribunal to attribute part negligence on the driver of the Trekker is erroneous. MACA Nos.889 & 597 of 2016 Page 3 of 7 6. Mr. Mahali, learned counsel while advancing his submission for the insurer that the offending Mini Truck did not have a valid permit on the date of accident and therefore the insurer should be granted with right of recovery against its owner, further supports the finding of learned Tribunal regarding contribution of 50% negligence of the driver of the Trekker. 7. It is seen from the record that three witnesses were examined from the side of the claimants and the present insurer did not adduce any evidence from their side. Among such witnesses examined by the claimants, P.W.3 is the eye-witness. As per his deposition, the driver of the Truck first dashed behind the Trekker which again dashed behind the Scooty which was moving ahead of it. So according to P.W.3, the entire negligence is on the driver of the offending Mini Truck. His statement made in examination-in-chief has not been sufficiently rebutted in his cross-examination. The insurer was unable to elicit any substantial contradiction to the evidence of P.W.3 and except the denial suggestion put to him nothing relevant to disbelieve his statement has come out. At the same time, it is seen that the Police upon completion of investigation has submitted the charge-sheet against the driver of the Mini Truck alone for commission of offences under Sections 279/304- MACA Nos.889 & 597 of 2016 Page 4 of 7 A, I.P.C. Therefore, according to the evidences and materials brought on record, entire negligence is seen to have vested on the driver of the Truck. But learned Tribunal has held on assumption that since the Trekker hit back side of the Scooty, he did not maintain sufficient space between the Scooty and the Trekker and therefore, the driver of the Trekker has contributed negligence. Such assumption of learned Tribunal is seen without merit. The spot of accident is a crowded place. Therefore, it is not correct to presume that the driver of the Trekker failed to maintain sufficient space from the vehicles moving ahead of it. The further observation of the Tribunal that the driver of the Trekker did not have a valid driving license is also found without any supporting material. Therefore, the conclusion of learned Tribunal to contribute 50% negligence on the driver of Trekker is set aside. Resultantly, it is held that the driver of the Truck is entirely negligent for causing the accident and no such part negligent can be contributed on the driver of Trekker without material evidence. 8. With regard to quantum of compensation, the claimants have prayed for enhancement of the same on the ground of addition of higher amount towards consortium. Mr. Mishra, learned counsel for the claimants fairly concedes that addition of future prospect should be to MACA Nos.889 & 597 of 2016 Page 5 of 7 the extent of ‘25%’ instead of ‘30%’. He further contends that the multiplier should be ‘14’ instead of ‘13’ since the age of the deceased on the date of accident was 45 years and 40 days only. Considering all such submissions, the compensation amount is modified to Rs.9,50,000/- payable along with interest @6% per annum. 9. In the result, both the appeals are disposed of with a direction to the insurance company, i.e. New India Assurance Co. Ltd. to deposit the modified compensation amount of Rs.9,50,000/- (rupees nine lakhs fifty thousand) along with interest @6% per annum from the date of filing of the claim application, i.e. 24.9.2013 before learned Tribunal 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 fixed by the learned Tribunal. 10. Since it is contended on behalf of the insurer that the offending Truck did not have valid permit which was not disputed by the owner, the right of recovery is granted in favour of the insurer, i.e. New India Assurance Co. Ltd. to recover the amount from the owner in accordance with law. MACA Nos.889 & 597 of 2016 Page 6 of 7 11. On deposit of the award amount before the learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made before this Court in MACA No.597 of 2016 with accrued interest thereon shall be refunded to the Appellant-Insurance Company. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.889 & 597 of 2016 Page 7 of 7