The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK In the matter of an application under Section 173 of M.V. Act, 1988 MACA No.539 of 2019 ……………… Divisional Manager, Sriram G.I.Co. Ltd. …. -versus- Appellant Sarojini Bisoyi & Others …. Respondents For Appellant : Mr.A.A. Khan, Advocate For Respondent Nos.1 & 2 : For Respondent No.3: Mr. D.R. Bhokta, Advocate Mr. K.C. Nayak, Advocate on behalf of Mr. A.K. Panda PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------- Date of Hearing: 25.04.2025 and Date of Judgment: 25.04.2025 ---------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through Hybrid Mode.
Legal Reasoning
2 . Heard learned counsel appearing for the parties. 3. The present appeal has been filed by the appellant- insurer challenging the judgment dt.02.03.2019 so passed by the learned Second M.A.C.T (Southern Division), Berhampur, Ganjam in M.A.C Case No.114 of 2017. Vide the said judgment, the claim application filed by the // 2 // claimants-respondents No.1 & 2 was allowed by holding the claimants-respondents entitled to get compensation amount of Rs.4,23,900/- with interest @7% per annum payable from the date of filing of the claim application till its realisation. The Tribunal also imposed penal interest @9% per annum if the award is not satisfied within a period of two months, as directed. 4. It is the main contention of the learned counsel appearing for the appellant that such a claim application was filed by the claimants-respondents alleging the death of the deceased in an accident which took place on 08.08.2011 by the offending vehicle bearing Regd. No.OR-02-X 6100. It is contended that pursuant to the accident caused by the offending vehicle Adaba P.S. Case No.31 of 2011 corresponding to G.R. Case No.98 of 2011 was registered in the file of learned J.M.F.C, Mohana. In the charge-sheet so filed by the I.O in the aforesaid G.R. Case, the deceased was never shown having died because of the accident in question. It is also contended that not only the name of the deceased was not mentioned in the charge-sheet so filed by the I.O but also no injury report /or post-mortem report of the deceased was made available to the Tribunal by the
Legal Reasoning
claimants-respondents. It is contended that since no injury Page 2 of 10 // 3 // report and/or post-mortem report was ever produced by the claimants-respondents in support of the claim to get the compensation of the death of the deceased in the accident in question, no compensation could have been allowed by the Tribunal. 4.1. It is also contended that in absence of any proof being provided with regard to the status and income of the deceased, the Tribunal in absence of any such proof should have taken the minimum wages Rs.90/- per day, which was prevalent at that point of time, in respect of unskilled worker in place of Rs.130/- per day. It is also contended that awarding compensation towards future prospect @ 10% is also contrary to the decision of the Hon’ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi. 4.2. It is also contended that claimants-Respondent No.2 being the major son of the deceased, no compensation should have been awarded in his favour while assessing the compensation at Rs.4,23,900/-. It is also contended that award of interest @7% per annum and default interest @9% per annum is on the higher side. Making all these submisisons, it is contended that the impugned award requires interference of this Court. Page 3 of 10 // 4 // 5. Mr. D.R. Bhokta, learned counsel appearing on behalf of the claimants-respondents No.1 & 2 on the other hand contended that since the deceased was not shown as a person having died because of the accident in question which took place on 08.08.2011 by the offending bus bearing Regd. No.OR-02-X 6100 and name of the deceased was not reflected in the charge-sheet so filed in G.R. Case No.98 of 2011, claimant-Respondent No.1 filed ICC Case No.1 of 2014 in the Court of learned J.M.F.C, Mohana. In the aforesaid complaint case, learned J.M.F.C vide order dt.04.12.2014 took cognizance against the offending driver for the offence under Sections 279 & 304-A of the Indian Penal Code. It is also contended that the entire case record of the aforesaid complaint case in ICC Case No.1 of 2014 with order dt.04.12.2014 was exhibited before the Tribunal vide Exts. 6 to 12. 5.1. It is contended that since the deceased was not shown as a person who died because of the accident caused by the offending vehicle on 08.08.2011 by the I.O of the case, claimant-respondent No.1 moved the self-same J.M.F.C by filing complaint Case No.ICC No.1 of 2014 and in the said complaint case, the driver of the offending vehicle was made as an accused. It is accordingly contended that no illegality Page 4 of 10 // 5 // or irregularity can be found with the impugned judgment so passed by the Tribunal. It is also contended that post- mortem report was produced before the learned Magistrate and the same is reflected in order dt.04.12.2014. It is accordingly contended that since the driver of the offending vehicle has been made as an accused in the above noted Complaint Case No.1 of 2014 and post-mortem report of the deceased was also produced showing the death of the deceased in MKCG Medical College & Hospital, Berhampur after being referred from CHC, Mohana for better treatment, no wrong can be found with the stand taken by the Tribunal that the deceased died due to the accident caused by the offending vehicle on 08.08.2011. 6. Considering the dispute involved and on being directed learned counsel appearing for the claimants-respondents No.1 & 2 produced the documents exhibited before the Tribunal vide Exts.6 to 12 before this Court. Order dt.06.03.2025, so passed by this Court reads as follows:
Decision
ORDER 06.03.2025 learned 1. This matter is taken up through Hybrid Mode. 2. Heard learned counsel for the parties. 3. Pursuant to the order passed by this Court on 09.01.2025, the claimants-respondents filed various documents which were exhibited before the Tribunal vide Ext. 6 to Ext.to 12. 4. It is contended that since the I.O of the case did not indicate the name of the deceased in the charge-sheet as having died because of the accident in question on a counsel appearing for Page 5 of 10 // 6 // complaint case filed by the claimant-respondent No.1, learned Magistrate not only come to a finding that the deceased died because of the accident in question, but also charge-sheeted the driver of the offending vehicle . 4.1. It is also contended that Petitioner in the complaint case also filed the xerox copy of the receipt of the dead body after conducting of the post-mortem examination from the authorities of MKCG Medical College and Hospital, Berhampur. 4.2. It is contended that taking into account such documents produced by the claimants vide Ext.6 to 12, the claim application of the claimants-respondents was It is also contended that in absence of allowed. postmortem report, such claim can also be allowed in view of the decision of the Delhi High Court in the case of National Insurance Company Ltd. Vs. Meenakshi Gupta & Others, AIRONLINE 2019 DEL 1335 as well as decision of the Madhya Pradesh High Cout, in the case of Sayra and Others Vs. Balmukund and Others reported documents along with citation has provided to Mr. A.A. Khan, learned counsel appearing for the appellant in Court. He is directed to verify and come prepared. 5. As requested by Mr.A.A. Khan, learned counsel for the appellant, list this matter on 20.03.2025. in 2006 AC J593 . Copies of the 7. It is also contended that even though post-mortem report was not produced before the Tribunal though the same was admittedly produced before the J.M.F.C, Mohana in the above said complaint case, on the ground of non- production of the post-mortem report, the claim can also be allowed in view of the decision of the Hon’ble Delhi High Court in the case of National Insurance Company Ltd. Vs. Minikshi Gupta & Others, AIRONLINE 2019 Delhi 1335 and decision of the Hon’ble Apex Court reported in 2006 ACJ 593. Hon’ble Apex Court in para-8 of the said judgment has held as follows: 8. The name of the deceased was not mentioned in the F.I.R is of no consequence. Obviously an F.I.R was lodged by the person who was not aware of the Page 6 of 10 // 7 // the name of the deceased. name of the cleaner and, therefore, the name of the cleaner could not have been mentioned. Similarly, post-mortem was performed when there was none to inform the circumstances, when nobody was there to intimate the name of the deceased, it could not have been mentioned int he post-mortem report as the claimants came to know later on about the factum of the death and accident. Thus, in our opinion Claims Tribunal has grossly erred in dismissing the claim petition on the basis that death of Shakil Ahmad has not been established. In our opinion, Shakil Ahmad died in accident and this fact was not in dispute. In 7.1. With regard to the stand taken by the appellant that in place of Rs.90/- per day, minimum wages was calculated at Rs.130/- per day, learned counsel appearing for claimants- respondents No.1 & 2 contended that the deceased having died on 08.08.2011, the minimum wages of an unskilled worker was Rs.134/- per day and the same has been rightly taken as the income of the deceased. 7.2. However, with regard to award of interest @7% per annum on the compensation amount and award of default interest @9% per annum, learned counsel appearing for the claimants-respondents leave the same to the discretion of this Court. 7.3. However, in course of hearing, it is contended that if this Court will award compensation amount of Rs.4,00,000/- along with interest @6% per annum payable from the date of application till its realisation, the claimants- respondents will have no grievance. Page 7 of 10 // 8 // 8. Having heard learned counsel appearing for the parties and considering the submissions made and after going through the documents available on record more particularly; the documents vide Exts.6 to 12 along with order dt.04.12.2014 so passed by the learned J.M.F.C in ICC Case No.1 of 2014, this Court finds no illegality or irregularity with the impugned award. Order dt.04.12.2014 so passed in ICC Case No.1 of 2014 reads as follows: filed 04.12.2014: The complainant Sarojin Bisoi, W/0- this case u/s. late Karunakar Bisoi 279/337/338/304(A) IPC read with. u/s. 167 of the M.V. Act. The case of the complainant is that on 08.08.2011 the complainant was returning from Berhampur to her village Bramunigaon by bus Mahavir bearing Regd. No.OR-02-X-6100 along with her husband Karunakar Bisoi. It is alleged by the complainant that, on the way, they said bus capalized and the husband of the complainant along with others sustained injury. Thereafter, the injured person including the husband of the complaint namely Karunakar Bisoi shifted to C.H.C, Mohana for treatment. The husband of the complainant referred to MKCG Medical and hospital, Behrampur by the C.H.C Mohana. Due to financial problem, the complainant took her injured husband to her house and after arranging money, she admitted her husband at MKCG Hospital, Berhampur for treatment, On 11.08.2011 the husband of the complainant died at MKCG Medical, Berhampur. In this case, the police registered the case vide P.S. Case Nop.31, dtd.06.08.2011 in corresponding to G.R. Case NO.98 of 20911 under Section 279/304(A) IPC, on the written allegation of Rambusha Nayak. It is alleged by the complainant that, the police not mentioned in the final form, the husband of the complainant died in the accident for which the complainant filed this Case. The complainant examined under Section 200 Cr.P.C and her statement examined 3 witnesses who are examined under Section 202 Cr.P.C From the enquiry of the examined witnesses under Section 200 Cr.P.C and 202 Cr.P.C. From the enquiry of the examined witnesses under Section 200 Cr.P.C, Page 8 of 10 // 9 // and 202 Cr.P.C and the medical outdoor ticket vide 8114 dated 08.08.2011 of CHC, Mohana, it revel that one Karunakar Bisoi husband of the complainant died due to accident of the Mahavir bus bearing Regd. No.OR-02-X 6100. Hence there is sufficient material to proceed with the case for the offence under Section 279/304(A) IPC. Hence cognizance offence under Section 279/304(A) IPC is taken, against the accused Krushna Chandra Gouda. Issue notice to the accused for his appearance fixing 09.03.2015. The complainant is directed to file requisite within a week. 8.1. However, considering the submission made by the claimants-respondents, this Court while waiving out the default interest levied @ 9% per annum, is inclined to reduce the compensation amount to Rs.4,00,000/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization. This Court while holding so, directs the Appellant-company to deposit compensation amount of Rs.4,00,000/- along with interest @6% per annum payable from the date of filing of the claim application till its realization within a period of eight (8) weeks from the date of receipt of this order. On such deposit of the amount, the Tribunal shall disburse the same proportionately in favour of the Claimants-Respondents in terms of the Judgment dt.02.03.2019. 8.2. However, it is observed that if the amount as directed will not be deposited by the Appellant-Company within the aforesaid time period of eight (8) weeks, the compensation amount of Rs.4,00,000/- shall carry interest @ 7% per Page 9 of 10 // 10 // annum for the period starting from the expiry of the period of eight (8) weeks till its payment. 8.3. It is observed that Account Payee Cheque so deposited by the appellant company and not yet invested be returned back after satisfaction of the award. The MACA accordingly stands disposed of. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 30th April, 2024/Sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: high court of orissa, cuttack Date: 09-Jul-2025 12:54:56 Page 10 of 10