The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.871 of 2016 (From the judgment dated 22nd February, 2016 of leaned District Judge- cum-MACT(I), Balangir passed in MAC No.200 of 2010) The Oriental Insurance Co. Ltd., represented through its Manager, Legal, Alokbharati Towers, Saheed Nagar, Bhubaneswar …. -versus- Appellant Khitisuta Mahananda and Another …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. S. Udgata, counsel for Respondent No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 29th October, 2024 B.P. Routray, J. 1.
Legal Reasoning
4. Having perused the record, it is seen from the evidence of P.W.1 and P.W.2, who are the eye witnesses of the accident, that, they have categorically stated negligence on the part of the driver of the Bolero vehicle in which they were moving. They have stated that the driver of the Bolero vehicle had suddenly swerved to its extreme right by losing control over the vehicle and dashed against the Bus coming from opposite direction. Admittedly, the police has submitted charge-sheet against the driver of the Bus as well as the driver of the offending Bolero vehicle. Present deceased was an occupant of the offending Bolero vehicle so also present claimant. In the accident total 9 persons died including the husband and three children of present claimant. The claimant also sustained injury in the accident. The father of the claimant, who was also travelling in the same Bolero vehicle, sustained injury in the accident. The claimant and her father both have been MACA No.871 of 2016 Page 3 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 examined as P.W.1 and P.W.2 and have stated categorically against the driver of the Bolero vehicle, who died in the accident, regarding his rash and negligent driving. This part of the evidence of P.W.1 and P.W.2 attributing complete negligence on the driver of the Bolero has not been demolished or rebutted in their cross-examination either by the insurer or the owner of the vehicle. The insurer did not ask anything to P.W.2 to rebut his statement regarding negligence on the part of the driver of the Bolero, whereas while cross-examining P.W.1 the insurer did only put a denying suggestion that the driver of the Bolero is not responsible for the accident. A thorough perusal of the police charge-sheet and evidence of P.W.1 and P.W.2 do clearly justify the finding of the tribunal to fix complete negligence on the part of the deceased driver of the Bolero vehicle. Therefore, there seems no merit in the contention of Mr. Dutta, learned counsel for the insurer, to contribute any negligence on the part of the driver of the bus. The finding of the tribunal in this regard fixing entire negligence on the driver of the Bolero vehicle is thus confirmed. 5. So far as the contention of the insurer regarding fixing of contributory negligence on the part of the driver of the bus to the extent MACA No.871 of 2016 Page 4 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 of 30% is concerned, neither present claimant (P.W.1) nor P.W.2 were parties or wittnesses to the said claim proceeding where contributory negligence of 30% on the part of bus driver was decided by the Tribunal. It is true that present claimant has received her compensation in respect of her injury in MAC No.204 of 2010 upon compromise but nothing has been mentioned therein that there was agreement for contributory negligence between the driver of the Bolero and driver of the Bus. Therefore, all such decisions in other claim petitions would be of no help to the contention of the insurer to contribute negligence on the part of the driver of the Bus. 6. It is next submitted by Mr. Dutta that, the income of the deceased has been wrongly calculated at Rs.20,14,140/- with deduction of tax of Rs.5,04,260/-. According to Mr. Dutta the deceased had not filed his IT return for the Financial Year 2009-10 and as per the information collected from the income tax department, the IT return filed for the Financial Year 2008-09 do show the income of the deceased at Rs.13,02,510/- with deduction of tax liability to the tune of Rs.3,00,646/-. So it is submitted by the insurer that the income of the MACA No.871 of 2016 Page 5 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 deceased should be counted at such rate mentioned in the IT return for the Financial Year 2008-09. 7. As seen from the impugned award, the claimant has relied on Form-16 (Ext.13) of the deceased for the Financial Year 2009-10 that shows the income of the deceased as the Chief Manager (HR) of ONGC at Rs.20,14,140.25 paise, out of which income tax to the tune of Rs.5,04,260/- has been deducted. It is true that the date of filing of self return for the Financial Year 2009-10 was up to 31st July, 2010 and since the deceased died prior to that, i.e. 9th June 2010, there may not be any filing of IT return by the deceased. In such circumstance, Form 16 issued by the employer is the best document available to compute last income of the deceased employee. Therefore the approach of the tribunal to take note of Form-16 under Ext.13 for the Financial Year 2009-10 is seen appropriate and justified for computing the income of the deceased. Accordingly the income taken by the tribunal at Rs.15,09,880/- per annum is confirmed. The multiplier 11 as taken by the tribunal is also confirmed taking into account the age of the deceased which remains undisputed. MACA No.871 of 2016 Page 6 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 8. Here it is submitted on behalf of the claimant through cross- objection that, the tribunal has not added future prospects to the income of the deceased for computing the compensation amount. As such the claimant has prayed to add the same. As per the principles decided in the case of National Insurance Company Ltd. v. Pranay Sethi and Others, (2017) 16 SCC 680, future prospects to the extent of 15%, since the deceased had a fixed income and he was aged about 51 years on the date of accident, is found applicable in the instant case for computing the compensation. The loss towards future prospects at the rate of 15% of the income comes to Rs.2,26,482/- per annum and thus the loss of dependency becomes Rs.13,02,271.50 paise per annum. Applying multiplier 11 thereto, the total loss of dependency becomes Rs.1,43,24,986.50 paise. Adding loss of estate and funeral expenses as well as spousal consortium to the tune of Rs.70,000/-, the compensation amount is finally determined at Rs.1,43,94,986.50 paise. 9. Mr. Udgata, learned counsel for the claimant here submits to add increased amount of general damages by increasing the same at the rate of 10% per annum for conventional expenses as per the principle laid in Pranay Sethi (supra). In this regard he relies on the decision of MACA No.871 of 2016 Page 7 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 Hon’ble Supreme Court in the case of N. Jayasree and Others v. Cholamandalam MS General Insurance Co. Ltd., AIR 2021 SC 5218. 10. Mr. Dutta submits to the contrary that since interest is being granted to the compensation amount from the date of filing of the claim application, which is much prior to 2017, therefore, adding enhancement of 10% in the cases where the accident took place prior to 2017 would not be proper. 11. The Supreme Court have held in the case of N. Jaysree (supra), where the accident took place in the year 2011 and the tribunal had awarded compensation on 26th April 2013, as follows:- “33. The judgment in Pranay Sethi, (2017) 16 SCC 680 was rendered in the year 2017. Therefore, the claimants are entitled for 10% enhancement. Thus, a sum of Rs.16,500/- each is awarded towards loss of estate and funeral expenses. 34. A three-Judge Bench of this Court in United India Insurance Co. Ltd. V. Satinder Kaur @ Satwinder Kaur and Others, AIR 2020 SC 3076, has awarded spousal consortium at the rate of Rs.40,000/- (Rupees forty thousand) and towards loss of parental consortium to each child at the rate of Rs.40,000/- (Rupees forty thousand only). The compensation under these heads also needs to be increased by 10%. Thus, the spousal consortium is awarded at Rs.44,000/- MACA No.871 of 2016 Page 8 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 (Forty-four thousand only), and towards parental consortium at the rate of Rs.44,000/- each (Total Rs.88,000/-) is awarded to the two children.” 12. Thus applying the principles decided by the Supreme Court in the case of Pranay Sethi (supra) and subsequent decisions, an enhancement of 10% for every three years after 2017, on the conventional purposes, is granted in the present case thereby making the enhancement of Rs.14,700/- towards general damages. 13. Taking the computation as made above, the final compensation amount is determined at Rs.1,43,94,986.50 + Rs.14,700/- = Rs.1,44,09,686.50, rounded to Rs.1,44,10,000/-, payable along with interest @ 6% per annum. 14. In the result, the appeal is disposed of with a direction to the insurer – Appellant to deposit the modified compensation amount of Rs.1,44,10,000/- (One crore forty-four lakhs ten thousand only) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 2nd November 2010, within a period of two months from today, where-after the same shall be disbursed in MACA No.871 of 2016 Page 9 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 favour of the claimant on such terms and proportion to be decided by learned tribunal. 15. On deposit of the award amount before learned Tribunal and filing of a receipt evidencing the deposit with refund application before this Court, the statutory deposit made by the Appellant before this Court with accrued interest thereon shall be refunded to the Insurance Company. (B.P. Routray) Judge M.K. Panda/P.A. MACA No.871 of 2016 Page 10 of 10
Arguments
Heard Mr. G.P. Dutta, learned counsel for the insurer – Appellant and Mr. S. Udgata, learned counsel for claimant – Respondent No.1. 2. Present appeal by the insurer is directed against the impugned judgment dated 22nd February, 2016 of leaned District Judge-cum- MACA No.871 of 2016 Page 1 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 MACT(I), Balangir passed in MAC No.200 of 2010, wherein compensation to the tune of Rs.1,25,81,510/- along with interest @ 6% per annum from the date of filing of the claim application, i.e. 2nd November, 2010 has been granted on account of death of deceased Janak Mahananda in the motor vehicular accident dated 9th June, 2010. 3. The appellant-insurer of the offending Bolero vehicle bearing registration number OR-03-F-0969 has challenged the award claiming contributory negligence on the part of the driver of the bus. Mr. Dutta, learned counsel for the insurer submits that in the accident dated 9th June, 2010 several persons died and injured also giving rise to filing of multiple claim petitions. In one of the claim petition filed by one injured who was the occupant of the bus, the same tribunal has decided negligence on the part of the driver of the bus and the Bolero vehicle with ratio 30 : 70 and accordingly the liability for compensation amount was shared by the insurers of the bus and offending Bolero vehicle. Based on such determination of negligence in the other claim petition, most of the claim petitions were ended in compromise including MAC No.204 of 2010 filed by the self same claimant – Respondent No.1 for her injury in the accident. Therefore in the MACA No.871 of 2016 Page 2 of 10 Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttack Date: 04-Nov-2024 18:19:41 circumstances it would be proper to distribute liability of compensation between the insurers of Bus as well as the offending Bolero vehicle. But surprisingly the tribunal in the present case has saddled the entire negligence on the driver of the Bolero vehicle completely exempting the driver of the offending Bus.