The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.450 of 2022 Bajaj Allianz G.I. Co. Ltd. Appellant Mr. G.P. Dutta, Advocate …. -Versus- Sebati Nayak & others Respondents …. Mr. A. Das, Advocate for respondent Nos.1 to 6 CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 18.03.2024 Order No. 10. 1.
Legal Reasoning
Heard Mr. Dutta, learned counsel for the appellant Insurance Company and Mr. Das, learned counsel for respondent Nos. 1 to 6. 2. 3. None appears for respondent No.7. Instant appeal is filed by the appellant Insurance Company challenging the quantum of compensation directed in MAC No. 303 of 2015 by the learned 2nd Additional District Judge-cum-5th MACT, Berhampur, Ganjam on the grounds stated therein. 4. A sum of Rs.6,04,600/- is awarded as compensation payable to the claimants respondent Nos.1 to 6. 5. The first limb of argument of Mr. Dutta, learned counsel for the appellant Insurance Company is that the record reveals lodging of a report against an unknown vehicle and the offending vehicle could be seized almost after 49 days from the date of occurrence, though the investigation has led to submission of a chargesheet, the alleged accident is not to be believed. Furthermore, the age of the deceased is 80 years as per the evidence of O.P.W.1 examined as Page 1 of 4 D.W.1., hence, therefore, the compensation has to be reduced, inasmuch as, the claim regarding the age to be 79 years and 11 months and not 55 years as has been pleaded in the claim application is referring to a photostat copy of the Aadhar Card. That apart, the other contention is that the vehicle did not have the permit at the time of accident, which was valid between 4th September, 2015 and 3rd September, 2020, whereas, the accident took place on 28th August, 2015. 6. Mr. Das, learned counsel for the claimants respondent Nos.1 to 6, however, submits that the deceased was aged about 59 years at the time of his death and while claiming so, he produced the original Voter Card in Court today. It is also submitted that the deceased was shown to be 58 years in the Postmortem Report and therefore, he cannot be held to be 80 years approximately as it is claimed by the appellant Insurance Company. 7. On perusal of the original Voter Identity Card, the age of the deceased is found to be 38 years as on 1st January, 1994 and considering the same, his age would be around 59 years as on the date of accident, hence, therefore, the contention of the appellant Insurance Company that he was aged about 80 years by then is found to be not correct. In other words, the Court holds the deceased was aged about 59 years at the time of the accident. 8. In so far as the delay in seizure of the offending vehicle is concerned, without any doubt, from the report, it is made to reveal that the accident was alleged against an unknown vehicle. Nevertheless, the vehicle was seized and at the end of investigation by the local police, the driver of it was chargesheeted, hence, the Court is not inclined to entertain any such doubt with respect to the vehicle’s alleging involvement in the accident resulting the death of the deceased. Page 2 of 4 9. With respect to respondent Nos. 3, 4, 5 and 6, it is submitted by Mr. Dutta that the said claimants cannot be considered as dependents as by the time of accident and much before they were already married and separated from the family and while advancing such an argument, he refers to a decision of the Apex Court in New India Assurance Company Ltd. Vrs. Anand Pal and others 2024 1 TSC SC. Gone through the said decision, wherein, it has been held and observed that the dependents if were older and married, they cannot be treated as dependents of the victim. In the instant case, the said respondents are the sons and daughters of the deceased and are not denied and disputed that they had been married by the year 2015.In such view of the matter, having regard to the decision (supra), the Court is of the view that the contention of Mr. Dutta, learned counsel for the appellant Insurance Company is to be accepted by not considering respondent Nos. 3 to 6 as the dependents of the deceased. So with the appropriate multiplier applied and taking cognizance of the fact that the deceased to be 59 years old as on the date of accident, with a recalculation, the compensation is arrived at Rs.5,50,000/- approximately, which is payable to respondent Nos. 1 to 6. Furthermore, the Court is inclined to dispense with the penal interest and also reduce the rate of interest payable on the compensation amount from 7% to 6% per annum, as the same would be just and proper in the facts and circumstance of the case. 10. From the impugned judgment, it is also revealed that the vehicle did not have the permit when the accident took place. In fact, information was collected under the RTI Act and submitted and marked as Ext. R to show that the vehicle had valid permit from 4th September, 2015 to 3rd September, 2019, whereas, the alleged accident took place on 28th August, 2015, hence, therefore, it has to be held that the appellant Insurance Company should be allowed the recovery of right against respondent No.7, namely, the owner of the offending vehicle. Page 3 of 4 11. Hence, it is ordered. 12. In the result, the appeal stands allowed in part. Consequently, the impugned award dated 28th March, 2022 passed in MAC No.303 of 2015 by the learned 2nd Additional District Judge-cum-5th MACT, Berhampur, Ganjam is modified to the extent as aforesaid with a direction to the appellant Insurance Company to deposit Rs.5,50,000/- along with the interest of 6% per annum payable to the claimants respondent Nos. 1 to 6 from the date of application filed i.e. on and from 2nd November, 2015 till its realization. Furthermore, the Court directs the recovery of right against respondent No.7 and deleting the penal interest on account of default, which has been directed by the learned Tribunal. Furthermore, the statutory deposit along with the accrued interest on the same shall be refunded to the appellant Insurance Company soon after the deposit of the compensation made and its disbursement in favour of claimants respondent Nos. 1 to 6. As a necessary corollary, the recovery proceeding in MAC No.303 of 2015 against respondent No.7 is hence directed to be dropped. 13. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 20-Mar-2024 10:48:45 Page 4 of 4