The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1335 of 2017 & MACA No.1031 of 2017 MACA No. 1335 of 2017 Valurotu Padma & Ors. …. Appellants Mr. K.Panigrahi, Advocate -versus- Jami Someswar Rao & Anr. …. Respondents
Legal Reasoning
Mr. A.A.Khan, Advocate for Respondents MACA No.1031 of 2017 The Bajaj Allianz General Insurance Co.Ltd. …. Appellant Mr. A.A.Khan, Advocate -versus- Valurotu Padma & Ors. …. Respondents Mr. K.Panigrahi, Advocate CORAM: SHRI JUSTICE B. P. ROUTRAY
Decision
ORDER 24.03.2023 Order No. 10. 1. The matter is taken up through hybrid mode. 2. Heard Mr. Panigrahi, learned counsel for the Appellant and Mr. Khan, learned counsel for the Insurer-Respondents. 3. Both the appeals being arise out of the same judgment dated 11th August, 2017 passed by District Judge-cum-1st Motor Accident Claims Tribunal, Gajapati, Paralakhemundi in MAC Case No. 02 of 2011, wherein compensation to the tune of Rs.12,50,000/- has been Page 1 of 5 granted along with interest @ 6 % per annum to the claimants from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident on 3rd September, 2010, are heard together and disposed of by this common order. 4. It is contended by Mr.Khan that the offending vehicle i.e. Auto rickshaw bearing registration No.AP-30-T-5782 did not have a valid permit to ply in the State of Odisha and secondly, its driver did not have a valid license. 5. The accident took place at village Bhupati Laxmipur under the jurisdiction of Kashinagar P.S. in the State of Odisha. The offending vehicle was registered with the RTO, Srikakulam, in the State of Andhra Pradesh. Ext.7, the copy of the permit reveals that the offending vehicle was authorized to ply within a radius of 60 K.M. from the residential village of the owner. The evidence adduced from the side of the Insurance Company is not specific to the extent if the place of accident is beyond 60 K.M. radius from the place of residence of the owner. On the other hand, it is well-known that Kashinagar area in the District of Gajapati is very close to the border of Srikakulam district and the borders of both States runs in a Zigzag manner. The learned Tribunal has specifically observed in this regard by dealing with objection with the Insurance Company regarding permit. The Tribunal has held at Paragraph-17 of the impugned judgment that, “the geographical condition of territory of Andhra Pradesh and Odisha is so intermingle in the District of Gajapati that the front of the house exist in Odisha, the backside may come inside the jurisdiction of Andhra Pradesh. So it is very difficult to take up such plea of the Insurance Company that there is Page 2 of 5 violation of permit condition giving an excuse to the Insurance Company to avoid paying compensation.” Taking judicial notice of such geographical boundary position in a judicial proceeding is permissible under Section 56 of the Indian Evidence Act read with Clause-9 of Section 57. The facts which the Courts can take judicial notice of need not be proved. As such no merit is seen in the contention of Mr.Khan to entertain his objection on the ground of invalid permit in respect of the offending vehicle. 5. So far as the other submission advanced on behalf of the Insurer with regard to valid driving license of driver is concerned, the same is rejected outright in view of definition contained in Section 2(21) of the MV Act and the fact that the offending vehicle is a passenger Autorickshaw. 6. With regard to quantum of compensation, the Tribunal has assessed the income of deceased at Rs.1,00,000/- per annum. This is disputed by the Insurance Company as well as the Claimants. On the back drop of the controversy raised by the both parties regarding income of the deceased, it is seen that as per evidence of P.W.1, the widow, the deceased was cultivating around 20 Acres of land of his maternal grandfather and earning profit therefrom as an agriculturist. Besides, it is also claimed that the deceased had different other sources of income like managing tractor and cashew nut business. But no specific evidence was produced in respect of the income of deceased. In such circumstance, the Tribunal keeping in view the deposits made for the LIC policies, his bank transactions, postal savings and the expenses spent towards education of children has assessed the income to the extent of Page 3 of 5 Rs.1,00,000/- per annum. Keeping in view all such materials produced in evidence, I do not find any flaw in the approach of the Tribunal in fixing the income of deceased to such extent. Accordingly, neither merit is also seen in the contention of the Insurer to reduce the same nor to enhance has contended by the Claimants. The amount so assessed by the Tribunal is thus confirmed. 7. It is further seen from the impugned judgment that the Tribunal has forgotten to add future prospect to the income of the deceased who was aged about 38 years on the date of accident. The Tribunal has also deducted 1/5th towards personal expenses instead of 1/4th. Considering all such aspects, the computation on loss of dependency is modified and determined at Rs.15,75,000/- (with addition of future prospect to the extent of 40%). Adding Rs.1,00,000/- towards loss of consortium to the widow and three children (keeping in view the date of accident on 3rd September 2010) and Rs.30,000/- towards loss of estate and funeral expenses, total compensation amount is determined at Rs.17,05,000/-, payable along with interest @6% per annum. 8. In the result, both the appeals are disposed of with a direction to the Insurer, i.e. Bajaj Allianz General Insurance Co.Ltd, to deposit the modified compensation of Rs. 17,05,000/- (Seventeen lakhs five thousand) before the Tribunal along with interest @6% per annum from the date of filing of the claim application 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. Page 4 of 5 9. 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. 1031 of 2017 before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company. 10. The copies of evidences and exhibits as produced in course of hearing are kept on record. 11. Urgent certified copy of this order be granted on proper application. Judge ( B.P. Routray) S.Das Page 5 of 5