The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.814 of 2018 & MACA No.405 of 2018 (From the judgment dated 24th January, 2018 passed by learned 3rd M.A.C.T., Bhubaneswar in M.A.C. No.44/19 of 2012) In MACA No.814 of 2018 The Manager Claims, Oriental Insurance Company Limited …. Appellant -versus- Mirza Alim Beg and others …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. A.A. Khan, Advocate For Respondents : Mr. P.K. Mishra, Advocate For Respondent Nos.1 to 6 In MACA No.405 of 2018 Mirza Alim Beg and others …. Appellants -versus- Pratap Kumar Swain and another …. Respondents Advocate(s) appeared in this case:- For Appellants
Legal Reasoning
: Mr. P.K. Mishra, Advocate For Respondents : Mr. A.A. Khan, Advocate For Respondent No.2 MACA Nos.814 & 405 of 2018 Page 1 of 9 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 26th April, 2023 B.P. Routray, J. 1. Heard Mr. A.A. Khan, learned counsel for the Insurance Company and Mr. P.K. Mishra, learned counsel for the claimants. 2. Both the appeals being arise out of same impugned judgment dated 24.01.2018 of learned 3rd MACT, Bhubaneswar in M.A.C. Case No.44/19 of 2012, wherein compensation to the tune of Rs.9,88,500/- has been granted along with interest @7% per annum to the claimants from the date of filing of the claim application, i.e.05.03.2012 on account of death of the deceased, namely, Mirza Wosim Beg in a motor vehicular accident dated 21.01.2012, are heard together and
Decision
disposed of by this common order. 3. MACA No.814 of 2018 has been filed by the insurer challenging the award and MACA No.405 of 2018 has been filed by the claimants praying for enhancement of the compensation amount. 4. According to the insurer, the driver of the offending Truck bearing Registration No.OR-04-G-7999 was not negligent for the MACA Nos.814 & 405 of 2018 Page 2 of 9 accident and thus the liability cannot be saddled on the insurance company, i.e. Oriental Insurance Company Limited. 5. The facts of the case are that the deceased along with others was travelling in a Scorpio vehicle bearing Registration No.OR-02-AK- 2997 and it dashed against the offending Truck from behind causing death of two persons and injury to others. The accident took place on National Highway No.5 between Bhadrak and Cuttack at Nalanga in front of Mohapatra Dhaba. Four claim applications were filed in respect of death of two persons and injury to two occupants. It is the consistent case of all the claimants that the offending Truck after overtaking the Scorpio applied sudden brake leaving no space for the driver of Scorpio, which caused the accident. It is the rash and negligent driving of the driver of the Truck that caused the accident. The evidences of the injured eye-witnesses speak that the Truck overtook the Scorpio and abruptly stopped in front of it causing the accident. The FIR was lodged stating same facts and the Police upon completion of investigation have submitted the charge-sheet against the driver of the offending Truck under Sections 279/337/338/304-A, I.P.C. to face criminal prosecution. On the contrary, the Motor Vehicle Inspector (MVI) was examined from the side of the insurance company MACA Nos.814 & 405 of 2018 Page 3 of 9 as OPW-1, who said in his evidence that the driver of the Scorpio was negligent for causing the accident since he did not find any skid mark on the road to suggest application of brake by the Scorpio vehicle. This part of evidence of the MVI is relied on by Mr. Khan to contend that negligence on the part of the driver of the offending Truck is not established. Further, Mr. Khan in support of his contention relies on the case of Nishan Singh and others vs. Oriental Insurance Company Ltd., (2018) 6 SCC 765. He also relies on order dated 24.1.2023 of this Court passed in MACA No.1057 of 2017 to substantiate his contention that when a vehicle dashed another vehicle from behind, entire negligence is attributed on the part of the driver of the former vehicle. 6. In the instant case, the facts as stated above are to the effect that, the accident took place on N.H.5 at about 2.00 a.m. (in the night). The MVI visited the spot after three days of the occurrence and opined about absence of any skid mark at the spot. The MVI has not stated any other reason for arriving at his opinion that the driver of the Scorpio was negligent, though he examined both the vehicles. Admittedly, the MVI is not an eye-witness and his evidence is in the status of expert evidence as per the provisions under Section 45 of the Indian Evidence Act. On the other hand, the injured witnesses are direct eye-witnesses, MACA Nos.814 & 405 of 2018 Page 4 of 9 who have categorically stated about detail facts of the accident that how the Truck abruptly stopped after overtaking the Scorpio. This part of evidence of the eye-witnesses has not been rebutted sufficiently and the accident took place in the mid of night on National Highway. Therefore, keeping in view the circumstances of the accident, the evidence of the eye-witnesses is found more credible than the opinion of the MVI, who visited the spot after three days of the accident. Furthermore, the Police investigation report also speaks in support of the contention of the eye-witnesses regarding negligence on the part of driver of the Truck. So the preponderance of probability is seen heavier in favour of the contention of the claimants regarding negligence on the part of the Truck driver. 7. The facts in the case of Nishan Singh (supra) is different from the facts in the present case since the width of the road in that case is only 14 ft. where it was unfathomable to conceive that the Truck moved at high speed and overtook the Car. In the present case, it is clear that road is sufficiently wide and the accident took place in the night. So the decision of the Supreme Court in Nishan Singh’s case (supra) is distinguished. Further, the facts in the case decided in MACA No.1057 of 2017, as relied on by Mr. Khan, is different from MACA Nos.814 & 405 of 2018 Page 5 of 9 the facts of the present case. In the said cited case, it was the contention of the claimants that the Truck was immobile at the time of accident and parked on the left side of the road where the other vehicle, i.e. the Indica Car collided from behind. Therefore, facts of the said case being different from the facts of the present case are not applicable here. 8. It is true that when two vehicles are moving on road in same direction and the hind vehicle crashed to the backside of front vehicle, normally the driver of front vehicle is not fastened with negligence. But this proposition is always subject to exceptions. In the present case, the insurance company has failed to rebut the evidence of direct eye-witnesses in respect of negligence on the part of driver of the Truck. In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd., (1995) 1 SCC 551, the Supreme Court has observed that, there has never been any doubt that those who use highways are under a duty to be careful and the legal position today is quite plain that any person using the road as a motorist will be liable, if by his action he negligently causes physical injury to anybody else. In the instant case, in view of the peculiar facts stated above, negligence is attributed to the driver of the Truck. MACA Nos.814 & 405 of 2018 Page 6 of 9 9. It is further contended by Mr. Khan that the driver of the offending Truck against whom the charge-sheet has been submitted is different from the driver named in the MVI report, who did not have valid driving license and therefore, the insurer should be granted with right of recovery against the owner. This contention of Mr. Khan is found without merit in absence of any pleading to that effect before the Tribunal. The same is accordingly rejected. 10. So far as the quantum of compensation is concerned, it is submitted by Mr. Khan that in absence of material proof with regard to income, the rate of minimum wages prevalent on the date of accident should have been counted for the purpose of income. But the Tribunal has taken the income of the deceased at Rs.6000/- per month against the same. Conversely, it is submitted by Mr. Mishra, learned counsel for the claimants that the income aspect of the deceased has been brought on record through Ext.6, the certificate of income granted by the concerned Sarpanch showing income of the deceased at Rs.12,000/- per month as a four-wheeler mechanic, which was disbelieved by learned Tribunal. On the backdrop of such rival contentions regarding income of the deceased, I agree with the finding of the learned Tribunal. It is for the reason that the certificate granted MACA Nos.814 & 405 of 2018 Page 7 of 9 by the Sarpanch to quantify the income at specific amount has no authenticity in the eye of law. However, the statement of the widow that the deceased was a four-wheeler mechanic cannot be discarded and thus the assessment made by learned Tribunal to fix his income at Rs.6000/- per month is confirmed. But as seen from the impugned award, the Tribunal did not add any future prospect to the income of the deceased on the ground that the deceased did not have any established income. This reasoning of learned Tribunal is against the principles decided in the cases of National Insurance Company Ltd. vs. Pranay Sethi and others, (2017) 16 SCC 680, and Kirti and another vs. Oriental Insurance Company Limited, (2021) 2 SCC 166. The future prospect to the extent of 40% is thus liable to be added on the income of the deceased. Further, two minor children of the deceased are found entitled for grant of amount towards loss of parental consortium. Adding all such amounts, the claimants are found entitled to further enhanced amount of Rs.4,47,200/- thereby enhancing the compensation amount to Rs.14,35,700/-, payable along with interest @6% per annum. 11. In the result, both the appeals are disposed of with a direction to the insurer i.e. Oriental Insurance Company Limited to deposit the MACA Nos.814 & 405 of 2018 Page 8 of 9 modified compensation amount of Rs.14,35,700/- (rupees fourteen lakhs thirty-five thousand seven hundred) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e. 05.03.2012, 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 Tribunal. However, the direction for payment of penal interest is waived. 12. On deposit of the award amount before learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made in MACA No.814 of 2018 before this Court with accrued interest thereon shall be refunded to the Insurance Company. 13. Copies of the depositions and exhibits as produced in course of hearing are kept on record. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.814 & 405 of 2018 Page 9 of 9