The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1338 of 2015 (From the judgment dated 19th May, 2015 of learned 1st MACT, Puri passed in MAC No.22 of 2012) The Oriental Insurance Company Ltd., represented through its Regional Manager -versus- Smt. Ipsa Dixit and Others Advocate(s) appeared in this case:- …. …. Appellant Respondents For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. P.K. Mishra on behalf of Mr. A.K. Choudhury, counsel for Respondents 1 to 5 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 15th March, 2023 B.P. Routray, J. 1. The matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. G.P. Dutta, learned counsel for the insurer - Appellant and Mr. P.K. Mishra on behalf of Mr. A.K. Choudhury, learned counsel for claimant – Respondents 1 to 5. 3. Present appeal by the insurer is directed against the impugned judgment dated 19th May 2015 of learned 1st MACT, Puri in MAC No.22 of 2012, wherein compensation to the tune of Rs.3,03,25,000/- along MACA No.1338 of 2015 Page 1 of 10 with interest @ 6% per annum from the date of filing of the claim application, i.e. 1st February, 2012 has been granted on account of death of deceased Subhendu Dixit in the motor vehicular accident dated 25th December, 2011. 4. The appellant – insurer disputes involvement of the offending vehicle, i.e. TATA Magic bearing registration number OR-12-A-8374 in the accident. Mr. Dutta, learned counsel for the Appellant submits that the details of the vehicle has not been mentioned in the inquest report and as per the eye witnesses examined from the side of the insurer, the deceased died due to fall from his own vehicle, a Honda Activa Scooter. Mr. Dutta further submits that action of the police in investigating the case, arrest of the driver and seizure of offending vehicle are suspicious. 5. The case of the claimants is that the deceased while going in a Honda Activa Scooter, the offending vehicle dashed him coming from the opposite direction being driven in rash and negligent manner with high speed. 6. Mr. Mishra, learned counsel for the claimants submits that involvement of the offending vehicle has been stated in the F.I.R. itself and police has submitted charge-sheet against the accused driver. MACA No.1338 of 2015 Page 2 of 10 Further, the eye witnesses examined from the side of the claimants have categorically spoken regarding involvement of the offending vehicle as well as negligence on the part of its driver. 7. It is seen that three witnesses have been examined from the side of the claimants and amongst them P.W.2 is the eye witness to the accident. Besides evidence of eye witness, the claimants also relied on the police papers like F.I.R., charge-sheet, inquest report, post mortem examination report, etc. in order to substantiate their contention. On the other hand, the insurer has examined four witnesses including one Daitari Mohanty as O.P.W.2 as the eye witness of the occurrence. 8. The accident took place on 25th December, 2011 at 10.30 am. The F.I.R. was lodged on the same day at 12.55 pm. Informant is the brother- in-law of the deceased who is not an eye witness of the accident. The time of accident is not disputed at the Bar and admittedly, the contents of the F.I.R. speak details of the offending vehicle including its registration number. P.W.2 has stated in his evidence that while the deceased was going in his Honda Activa Scooter, the offending vehicle caused the accident being driven rash and negligently with high speed. This evidence of P.W.2 is found supported by the police investigation report MACA No.1338 of 2015 Page 3 of 10 which resulted in submission of charge-sheet against the accused driver, namely Lingaraj Nayak, for commission of offences under Section 279/304-A of the I.P.C. It is true that none of the parties examined any such witness named either in the police investigation report or in the F.I.R. Neither P.W.2 nor O.P.W.2 are among the eye witnesses named in the police investigation report. According to O.P.W.2, while the deceased was going in his Honda Activa Scooter fell down from his vehicle due to sudden application of brake as one Scooty came in front of him abruptly. 9. The statement of P.W.2 is supported by the findings arrived by police in course of investigation. No such support is seen to the statement made by O.P.W.2 in his evidence. Rather perusal of statements made in cross-examination of O.P.W.2 gives an inference that he reached at the spot just after the accident when the deceased was lying on the road with bleeding injuries. Here the evidence of O.P.W.1- the News Reporter of the accident has been pressed upon by Mr. Dutta. It is seen that O.P.W.1 being a News Reporter has published a news item under Ext.H/1 in the “Daily Samaj” dated 26th December, 2011 to the effect that the deceased died due to fall from his own vehicle. The evidence of this O.P.W.1 would not lend any help in support of the contention of the insurer for the MACA No.1338 of 2015 Page 4 of 10 simple reason that he did not have any direct knowledge about the accident and his information collected from others is for the specific purpose of publishing the news item. Therefore, the evidence of O.P.W.1 is not at all trustworthy and cannot be considered for this purpose. Thus, upon analysis of the entire evidence adduced and the materials produced from both sides, the evidence of P.W.2 which is well supported by police investigation report is found trustworthy and accordingly the contention of the claimants regarding death of the deceased in the accident involving the offending vehicle is established on record and the finding of the tribunal regarding negligence on the part of the accused driver of the offending vehicle is confirmed. It is needless to say that all such contentions raised by Mr. Dutta to dispute involvement of the offending vehicle are rejected. 10. With regard to quantum of compensation, Mr. Dutta disputes the income of the deceased as assessed by the tribunal. He further submits that the father and mother of the deceased are not dependents since the father is a pension holder. Again according to Mr. Dutta, the income of the deceased should be counted taking into consideration the I.T. Return filed for the Assessment Year 2012-2013. MACA No.1338 of 2015 Page 5 of 10 11. Conversely it is submitted by Mr. Mishra that, assessment of income of the deceased made by the tribunal is absolutely correct which is based on Form-16 (Ext.11/1). Mr. Mishra further contends that the dependency of father and mother of the deceased cannot be excluded for the mere reason that the father was in receipt of pension. 12. It is seen that the deceased was working as General Manager, (Sales and Marketing) in J.K. Agri Genetics Limited. According to P.W.1 he was drawing salary of Rs.2,17,000/- per month and according to P.W.3, the authorized officer of the company in which the deceased was serving, the deceased got Rs.7,71,140/- for the period from 25th August, 2011 to 24th December, 2011, i.e. for a period of four months. 13. The accident took place on 25th December, 2011 and it is admitted that the deceased served in different Companies prior to his death. He was a graduate of Agricultural Science from OUAT, Bhubaneswar and served in different companies. Just before the accident, he joined J.K. Agri Genetics Ltd. on 25th August, 2011 and prior to that he was serving as General Manager in Sree Ramcides Chemicals Pvt. Ltd. He had also served in different other companies prior to the same. The tribunal by considering the income mentioned in Ext.11/1, i.e. Form 16 produced by MACA No.1338 of 2015 Page 6 of 10 P.W.3, has computed the income of the deceased for four months and then derived his income per month as Rs.1,74,035/- after deduction of tax amount of Rs.75,000/- as mentioned in Ext.11/1. Here Mr. Dutta contends that such approach of the tribunal in deriving income of the deceased is faulty one and as per him the income should be assessed keeping in view the I.T. returns submitted by the deceased for the last three years. I do not find any force in the contention of Mr. Dutta for assessing the income of the deceased based on the I.T. returns ignoring the actual amount received by him before his death. It is settled that the last income received by the deceased has to be counted for the purpose of counting compensation. In the case at hand the receipt of income by the deceased prior to his death as per Ext.11/1 is never disputed. So the exact amount what is received by the deceased just before his death is available on record. So no need is found to look to the ITRs for the purpose of determining the income of the deceased. Accordingly the submissions put-forth by Mr. Dutta to look to the ITR copies for last three years are rejected and for the same reason the prayer for additional evidence sought by the Appellant in I.A. No.1739 of 2016, which is in respect of the ITRs for last three years, is also rejected. MACA No.1338 of 2015 Page 7 of 10 14. Further, the analysis of assessment of income done by the tribunal is seen erroneous. It is for the reason that the tribunal has deducted income tax amount as shown in Ext.11/1 and then derived the monthly income. It needs to be emphasized here that, for the purpose of calculating income tax amount, the income of entire year has to be considered and not the amount as calculated by the tribunal which is for 2nd and 3rd quarter only as stated in Ext.11/1. Therefore, the need arises to make the computation afresh to determine just compensation. The claimants have also filed their cross-objection praying for enhancement of the compensation amount. 15. As stated earlier, the deceased received Rs.7,71,140/- for four months soon before his death. So his annual income comes to Rs.23,13,420/- in the same ratio. Considering the prevalent income tax slab during the time of accident, which was 10% for Rs.1,80,000/- to Rs.5 lakhs, 20% from five lakhs to eight lakhs and 30% above eight lakhs, the annual income tax payable comes to Rs.5,46,026/- (without education cess). A further amount of Rs.2,500/- is also deductable towards professional tax. So, the net amount of income comes to Rs.17,64,894/- per annum. MACA No.1338 of 2015 Page 8 of 10 16. The further submission of Mr. Dutta that the father and mother of the deceased should not be considered as his dependents is without merit. The only reason that the father is receiving pension does not disentitle him as a dependent of the deceased and also no reason is there to exclude the mother from the status of dependent of the son. Therefore, the submission of Mr. Dutta to deduct 1/3rd towards personal expenses is found without merit and accordingly rejected. 17. The deceased was aged about 37 years and the dependents are five in numbers. Adding future prospects to the extent of 50% to the income, since the deceased was in fixed employment as per evidence of P.W.1 and P.W.3, the annual loss of dependency comes to Rs.19,85,505/- with deduction of 1/4th towards personal expenses. The further objection of Mr. Dutta that the deceased was not in permanent employment and therefore 40% towards future prospect is liable to be added is also found without substance. Applying multiplier ‘15’, total loss of dependency becomes Rs.2,97,82,586/-. Adding Rs.1,20,000/- towards loss of spousal consortium to the widow and parental consortium to the children, and further adding Rs.30,000/- towards loss of estate and funeral expenses, the total compensation is determined at Rs.2,99,32,586/-, payable along with interest @ 6% per annum. MACA No.1338 of 2015 Page 9 of 10 18.
Decision
In the result the appeal as well as cross-appeal are disposed of with a direction to the Appellant – insurer to deposit the reduced compensation of Rs.2,99,32,586 (two crores ninety nine lakhs thirty two thousand five hundred eighty six) before the tribunal along with interest @ 6% per annum from the date of filing of the claim application, i.e. 1st February, 2012, within a period of two months from today, where-after the same shall be disbursed in favour of the claimant – Respondents on such terms and proportion to be decided by learned tribunal. 19. The statutory deposit made by the Appellant before this court along with accrued interest thereof be refunded to the Appellant on proper application and on production of proof of deposit of award amount before the tribunal. 20. An urgent certified copy of this order be issued as per rules. M.K. Panda, Sr. Steno (B.P. Routray) Judge MACA No.1338 of 2015 Page 10 of 10