The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.476 of 2019 & MACA No.271 of 2020 In MACA No.476 of 2019 The Branch Manager, M/s.HDFC ERGO General Insurance Company Limited -versus- Parun Kumar Das (since dead) and others …. Appellant Mr. A.A. Khan, Advocate …. Respondents
Legal Reasoning
Mr. R.N. Pal, Advocate for Respondent No.2 Mr. G.P. Dutta, Advocate for Respondent No.6 In MACA No.271 of 2020 The Chief Regional Manager, M/s.The Oriental Insurance Company Ltd. …. Appellant Mr. G.P. Dutta, Advocate -versus- Parun Kumar Das and others Respondents Mr. R.N. Pal, Advocate for Respondent No.2 Mr. A.A. Khan, Advocate for Respondent No.5 …. CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 09.01.2023 Order No. MACA No.476 of 2019 & MACA No.271 of 2020 09. 1. Heard Mr. A.A. Khan, learned counsel for the Insurance Company – M/s.HDFC ERGO General Insurance Company Limited, Mr. G.P. Dutta, learned counsel for M/s.The Oriental Insurance Company Limited and Mr. R.N. Pal, learned counsel for the claimant. Page 1 of 5 2. Both the appeals being arise out of the same judgment dated 29.3.2019 of learned 7th MACT, Bhubaneswar in M.A.C. No.222 of 2016, wherein compensation to the tune of Rs.25,20,000/- has been granted along with interest @7% per annum to the claimant from the date of filing of the claim application, i.e. 29.11.2016 on account of death of the deceased in a motor vehicular accident dated 11.07.2016, are heard together and disposed of by this common order. 3. The facts of the case are that the deceased while travelling in the motorcycle driven by her husband (P.W.1) fell down due to dashing of the offending Car bearing Registration No.WB-06-M- 4607 and thereafter the offending Bus bearing Registration No.OR-02-K-2705 ran over the deceased. 4. Mr. Khan as well as Mr. Dutta, both the learned counsels for the respective Insurance Companies submit in same voice that, since the driver of the motorcycle, who is present Claimant No.1 (P.W.1), did not have a valid driving license, the entire negligence is on him. They further submit that, each contributed less negligence in comparison to other, inter-se. In other words, neither of them agrees for negligence upto 50%, as fixed by the tribunal. 5. The learned Tribunal upon adjudication has concluded that the offending Car as well as the Bus were equally negligent for the cause of accident and as such, apportionment of compensation amount is equally between them. Page 2 of 5 6. Five witnesses have been examined from the side of the claimants and no witness was examined for either of the insurance companies. P.W.1, the claimant, has said that he was driving the motorcycle. Besides him, P.W.2 is an independent eye-witness of the accident. According to both P.W.1 and 2, negligence has been attributed to the driver of the Car as well as the Bus. So, in absence of any specific evidence brought in rebuttal to the statements of those witnesses examined for the claimant and in absence of any evidence in support of contention of the insurance companies, no fault is seen in the approach of the Tribunal in fixing composite negligence between the driver of the Car and the Bus. It needs to be mentioned here that for absence of any DL on the part of P.W.1, no negligence can itself be attributed on him and of course it is different that he may be liable for penalty to drive the motorcycle without valid DL. When the negligence aspect has been clearly spoken by P.W.1, which remains uncontroverted, the learned Tribunal has rightly contributed the same equally between the owners of the Car and the Bus. 7. With regard to quantification of the compensation amount, Mr. Khan and Mr. Dutta also seriously object the assessment of income of the deceased to the extent of Rs.17,500/- per month. In this regard, the claimant has examined two witnesses, Viz. P.W.3 and P.W.4, who are the officials of M/s.Prithwiraj Agrovet Ltd., i.e. the Company where the deceased was working as a Coordinate Assistant. Not only the oral evidence of P.W.3 and 4, but the salary certificate and the appointment letter were also marked in evidence on behalf of the claimants. What Mr. Dutta Page 3 of 5 and Mr. Khan submit that since M/s.Prithwiraj Agrovet Ltd. did not have any office at Khurda where the deceased was allegedly posted, as per the statement of P.W.3 maid in his cross examination, and therefore the claim of employment of the deceased is nullified, is not found acceptable and conceivable. It is for the reason that the documentary evidence like the appointment letter and salary certificate is left unrebutted and un- impinged. The distance between Bhubaneswar and Khurda is very short and therefore, absence of any office at Khurda could not make out a point in favour of the insurance companies. Upon analysis of the evidences of all those witnesses, the conclusion of learned Tribunal to fix the monthly income of the deceased at Rs.17,500/- is thus confirmed. 8. No further reason is found there to interfere with the compensation amount, since learned Tribunal has applied all established the principles to determine the same including addition of future prospects. However, the rate of interest is reduced to 6% from 7% against the direction of the learned Tribunal. 9. In the result, both the appeals are disposed of with a direction to both the insurers, i.e. HDFC ERGO General Insurance Company Limited (Appellant in MACA No.476 of 2019) and The Oriental Insurance Company Ltd. (Appellant in MACA No.271 of 2020) to deposit the compensation amount in terms of the direction of the learned Tribunal along with interest @6% per annum from the date of filing of the claim application before the Tribunal within a period of two months from today; where-after Page 4 of 5 the same shall be disbursed in favour of the Claimant No.2- Shreetam Das (son) on same terms and proportion contained in the impugned judgment. 10. On deposit of the award amount by both the insurers before the Tribunal and filing of a receipt evidencing the deposit with refund applications before this Court, the statutory deposit made before this Court in MACA No.476 of 2019 and MACA No.271 of 2020 with accrued interest thereon shall be refunded to the insurers. 11. Copies of deposition as filed by Mr. G. P. Dutta, learned counsel for the insurer in course of hearing are kept on record. 12. An urgent certified copy of this order be granted on proper application. Judge ( B.P. Routray) B.K. Barik Page 5 of 5