The High Court
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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.358 of 2024 (In the matter of application under Section 173(1) of the Motor Vehicles Act, 1988). The Oriental Insurance Company Ltd., Bhubaneswar -versus- Appellant … Dhruba Charan Das and others … Respondents For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. P.K. Mishra, Advocate (Respondent Nos.1 to 3) CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:10.01.2025(ORAL) G. Satapathy, J. 1. This is an appeal U/S.173 of the Motor Vehicles Act, 1988 (in short, “the Act”) by the appellant-insurer challenging the impugned judgment dated 27.09.2023 passed by the learned 1st Motor Accident Claim Tribunal, Puri (in short, “the learned Tribunal”) in MAC Case No.68 of 2014 granting a sum of Rs.8,43,000/- (Rupees Eight Lakhs Forty Three Thousand) along with simple interest at the rate of 6% MACA No.358 of 2024 Page 1 of 10 per annum w.e.f the date of filing the application on 02.04.2014 in an application U/S.166 of the Act. 2. Facts in precise are that on 25.02.2014 at about 2 PM near Alipada Chhaka one Motor Cycle bearing Regd. No.OR-13-G-5343 (hereinafter referred to as the offending vehicle) dashed the other Motor Cycle from behind, in which Bhami Das (hereinafter referred to as the deceased) was sitting as a pillion rider, by coming rash and negligently in a high speed, as a result the deceased died. Accordingly, Puri Sadar PS Case No.48 of 2014 was registered, which culminated in submission of charge-sheet against the accused driver of the offending motor cycle namely Rajat Kumar Sahoo for commission of offences U/Ss.279/304-A of IPC. On this accident, the legal representatives of the deceased-cum-R1 to 3 filed an application U/S.166 of the Act claiming compensation of Rs.8,75,000/- (Rupees Eight Lakhs Seventy-five Thousand) by impleading the owner and insurer of the offending motor cycle for the loss of their sole bread earner. According to the claimants-R1 to 3, the MACA No.358 of 2024 Page 2 of 10 deceased was a married women aged about 45 years old and was doing milk business by keeping six cows and earning Rs.9,000/- per month. 2.1. In response to the notice of claim, the owner of offending motor cycle-cum-R4 contested the claim by filing written statement denying all the allegations made against the rider of the offending motor cycle and inter-alia pleading that he is not liable to pay the compensation, rather the appellant-insurer is contractually liable to indemnify him since the offending motor cycle was duly insured with it at the relevant time of accident. However, the appellant-insurer contested the claim of R1 to 3 by filing a separate written statement denying its liability to indemnify the owner of the offending vehicle on the ground of planting of offending motor cycle in the alleged accident and the accident occurred due to negligence of the Motor Cycle in which the deceased was coming as a pillion rider. In addition, the appellant-insurer
Legal Reasoning
challenged the income and age of the deceased. MACA No.358 of 2024 Page 3 of 10 2.2. Basing on the rival pleadings, the learned Tribunal struck four issues and allowed the parties to lead the evidence. Accordingly, R1 to 3 examined two witnesses including the claimant-R1 and got exhibited the certified copy of the police papers in Puri Sadar PS Case No.48 of 2014 under Exts.1 to 5 as against no evidence whatsoever by the appellant-insurer. After having duly considered the evidence and pleadings on record upon hearing the parties, the learned Tribunal passed the impugned judgment directing the appellant- insurer to pay compensation of Rs.8,43,000/- (Rupees Eight Lakhs Forty Three Thousand) together with the simple interest at the rate of 6% per annum w.e.f. the date of filing of the claim. Being aggrieved with the aforesaid judgment, the insurer has preferred this appeal. 3.
Legal Reasoning
In the course of hearing, Mr. G.P. Dutta, learned counsel for the appellant, however, seriously disputes the quantum of compensation and submits that the deceased being income less, the claimants are entitled to some nominal compensation, but the learned MACA No.358 of 2024 Page 4 of 10 Tribunal has granted exorbitant compensation to the claimants. It is, however, further submitted by Mr. Dutta that since the deceased was coming on a Motor Cycle as a pillion rider and the rider of such Motor Cycle being guilty of rash and negligent driving, the claim of the R1 to 3 is not solely maintainable against the appellant-insurer and at best the appellant-insurer can be saddled with a liability to pay 50% of the compensation amount on the principle of 50:50 contributing negligence of the two Motor Cycles. Mr. Dutta further submits that the appellant-insurer had made an application before the learned Tribunal to summon the rider of the vehicle in which the deceased was sitting to depose evidence, but that has been rejected without any reasoning and, thereby, the truth remains obliterated. Mr. G.P. Dutta accordingly, prays to modify the compensation amount. 3.1. On the other hand, Mr. Pradeep Kumar Mishra, learned counsel for the claimants-cum- R-1 to 3 submits that the learned Tribunal has not committed any illegality in awarding the compensation MACA No.358 of 2024 Page 5 of 10 of Rs.8,43,000/- (Rupees Eight Lakhs Forty Three Thousand) by making a reasonable calculation and, therefore, the impugned judgment calls for no interference. None appears for the R4 despite valid service. 4. After having considered the rival submissions upon perusal of record, the dispute between the parties now narrowed down only to the quantum of compensation and the extend of liability of the appellant-insurer to pay the compensation. It is no doubt claimed by the appellant-insurer that its application for summoning the rider of the Motor Cycle in which the deceased was travelling was rejected, but even if had it been allowed, the appellant-insurer could not have avoided the liability to pay compensation to the claimants, in view of the admitted fact that the appellant is admittedly the insurer of the offending motor cycle. Moreover, the appellant-insurer in its written statement has never taken any plea for contributory negligence or the negligence of the deceased in contributing to the accident, however, no MACA No.358 of 2024 Page 6 of 10 evidence has even been tendered by the appellant- insurer to prove anything against the claimants. On the other hand, the learned Tribunal after duly appreciating the evidence on record including documentary evidence has found in the impugned judgment that the deceased died due to rash and negligent act of the rider of the offending vehicle and the appellant being admittedly the insurer of the offending contributory is contractually liable to indemnify the owner of the offending contributory under the contract of agreement of the insurance policy and, it thereby, cannot avoid its liability. True it is that the appellant-insurer has advanced the plea of contributory negligence, but no evidence was tendered to prove it nor was any material produced before the learned Tribunal to evidence that the Motor Cycle in which the deceased was coming had contributed to the accident. In absence of any pleading or evidence on record, the appellant-insurer is solely liable to pay the compensation for the damages caused by the insured-cum-owner of the offending motor cycle(R4). MACA No.358 of 2024 Page 7 of 10 5. Once the appellant-insurer is found liable to indemnify the owner of the offending motor cycle for the accident causing death of the deceased, the next question comes for discussion is the quantum of compensation, which has been seriously disputed by the appellant-insurer in this appeal. Adverting to such point, it appears that the learned Tribunal had considered and taken the deceased to be a daily labourer, but while computing her income, the learned Tribunal took the monthly income of the deceased @ Rs.5,200/- on the basis of wage @ Rs.200/- per day for 26 days in a month, however, the minimum wage for daily labourer at the prevailing time of accident was Rs.150/- per day and, therefore, the monthly income of the deceased would have been calculated at Rs.4,500/- per month. Since the age of the deceased at 45 years having not been validly disputed, the monthly income of the deceased could have been calculated at Rs.4,500/- + 25% of Rs.4,500/- towards future prospects. Thus, the monthly income of the deceased would come around Rs.5,625/- for the purpose of MACA No.358 of 2024 Page 8 of 10 computing compensation. Since the deceased was having three dependents, 1/3rd of her income has to be deducted towards her personal and living expenses and, therefore, after deducting such amount towards personal and living expenses, the net monthly income of the deceased would come around 2/3rd of Rs.5,625/- = Rs.3,750/- and, therefore, the annual loss of dependency of the claimants would be calculated at around Rs.3,750/- x 12 = Rs.45,000/-. Since the deceased was aged about 45 years, the appropriate multiplier would be 14 and, therefore, the total loss of dependency of the claimants would be assessed at Rs.45,000/- x 14 = Rs.6,30,000/-. It is not disputed that the accident occurred in the year 2014 and, thereby, the claimants are also entitled to 10% revision in the non-pecuniary head of damages at Rs.70,000/- in every three years and, thereby, the claimants-R1 to 3 are entitled to Rs.91,000/- (Rs.70,000/- + 3 x 10% of Rs.70,000/-) under the head of general damages. Hence, the claimants are entitled to compensation of Rs.6,30,000/- + Rs.91,000/- = Rs.7,21,000/-. In MACA No.358 of 2024 Page 9 of 10 addition, the claimants are also entitled to simple interest at the rate of 6% per annum. 6. In the result, the claim appeal is allowed in part on contest, but there is no order as to costs. The impugned award of compensation is modified to the extent of Rs.7,21,000/- together with simple interest @ 6% w.e.f. 02.04.2014 which shall be deposited by the appellant-insurer before the learned Tribunal within 60 days hence. It is made clear that the statutory deposit be refunded back to the appellant-insurer on proof of deposit of the modified compensation amount before the tribunal, who shall disburse the same proportionately to the claimants in terms of its award. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Jan-2025 10:40:17 Orissa High Court, Cuttack, Dated the 10th day of January, 2025/Subhasmita MACA No.358 of 2024 Page 10 of 10