Misc. Case No. 50 of 2020 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1035 of 2024 (In the matter of application under Section 173 of the Motor Vehicles Act, 1988). M/S. Oriental Insurance Co. Ltd., Cuttack Appellant … -versus- Bharati Das and others … Respondents For Appellant : Mr. S.J. Pradhan, Advocate For Respondents : Mr. S.K. Mohanty, Advocate (Respondent Nos.1-5) CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:03.01.2025(ORAL) G. Satapathy, J. 1. This is an appeal U/S.173 of the Motor Vehicles Act, 1988 (in short, “the Act”) by the appellant-insurer challenging the quantum of compensation as awarded to Respondent Nos.1 to 5 in the impugned judgment dated 30.03.2024 passed in Misc. Case No.50 of 2020 by which the learned 2nd Motor Accident Claims Tribunal, Cuttack (In short, “the Tribunal”) has granted a sum of Rs.18,79,660/-(Rupees Eighteen Lakhs Seventy Nine Thousand Six Hundred MACA No.1035 of 2024 Page 1 of 8 Sixty) only to the claimants-Respondent Nos.1 to 5 together with interest of 7% per annum w.e.f. 24.01.2020 as compensation for the death of one Prafulla Kumar Behera in a motor vehicular accident. 2. Facts in precise are, on 31.12.2019 at about 8.30 AM one Truck bearing Regd. No.OR-05-AN- 3251 came with a high speed being driven rash and negligently by its driver and dashed one Prafulla Kumar Behera (hereinafter referred to as the deceased), who was standing on the extreme left side of the road at Kushupur Bazar Chhak resulting in his death. On this
Legal Reasoning
accident, an FIR was lodged vide Mahanga PS Case No.01 of 2020, which culminated in submission of charge-sheet against the accused driver of the offending Truck for offences U/S.279/304 of IPC. After the death of the deceased, his legal representatives- cum-Respondent Nos.1 to 5 filed an application before the learned tribunal U/S.166 of the Act by impleading the owner and insurer of the offending vehicle, which came to be registered as Misc. Case No.50 of 2020 claiming compensation for the death of their sole bread MACA No.1035 of 2024 Page 2 of 8 earner. According to the claimants-Respondent Nos.1 to 5, the deceased was aged about 35 years old and was a mason and earning Rs.15,000/- per month then and they be compensated for the loss of their sole bread earner. 2.1. In response to the notice of Misc. Case No.50 of 2020, the owner of offending vehicle- Respondent No.6 did not participate in the proceeding and he was set ex-parte by the learned tribunal vide its order passed on 16.02.2023, however, the appellant- insurer contested the claim of the claimants by filing written statement denying all the averments made in the claim application and inter-alia disputing its liability to compensate the claimants. Basing on the rival claims, the learned tribunal struck four issues including the main issue of cause of accident due to rash and negligent driving of the driver and the entitlement of the claimants as well as the liability to pay compensation to the claimants. In support of their claim, the claimants examined the wife of the deceased as PW1 and exhibited the police papers of the accident MACA No.1035 of 2024 Page 3 of 8 case under Exts.1 to 10 as against the documentary evidence of copy of the insurance policy under Exts.A and B with no oral evidence by the appellant-insurer. 3. After having considered the rival submissions upon perusal of the evidence on record, the learned tribunal passed the impugned judgment awarding compensation of Rs.18,79,660/- to the claimants-Respondent Nos.1 to 5 proportionately. Being aggrieved, the insurer has preferred this appeal on various grounds inter-alia the quantum of compensation. 4.
Legal Reasoning
In the course of hearing of the appeal, Mr. S.J. Pradhan, learned counsel for the appellant by confining his submission to the quantum of compensation prays to reduce the compensation on the ground of wrong assessment of the income of the deceased and exorbitant payment of consortium to the claimants-Respondents. 4.1. On the other hand, Mr. S.K. Mohanty, learned counsel for the claimants-Respondent Nos.1 to MACA No.1035 of 2024 Page 4 of 8 5, however, does not dispute about the excess award of consortium to the claimants, but he, however, submits that the income of the deceased has been rightly assessed and, thereby, the compensation as awarded to the claimants can be reduced only with regard to grant of the consortium amount. 5. After having considered the rival submissions upon perusal of record, this Court finds that the main dispute between the parties is with regard to the quantum of compensation, which is calculated on the basis of income of the deceased, but since the appellant-insurer seriously disputes the assessment of the income of the deceased, this Court now advert to the said point of the income of the deceased. The learned tribunal in his finding on income of the deceased under Issue No.2 has taken the income of the deceased notionally at Rs.8,940/- per month on the basis of daily wage for a unskilled labourer prevailing at the time of accident @ Rs.298/- per day, but it has calculated the income of the deceased for the entire 30 days of the month, notwithstanding to the MACA No.1035 of 2024 Page 5 of 8 fact that the daily wages should be calculated for 26 days inasmuch as the calculation of daily wages includes mandatory one day off for the labourer/daily wager and, thereby, the income of the deceased would have been calculated at 26xRs.298/-=Rs.7748/- per month. Adding 40% towards future prospects in terms of the law laid down by the Apex Court in National Insurance Company Vrs. Pranay Sethi and others; (2018) 69 OCR (SC) 1, the annual income of the deceased would come around (Rs.7748/- + 40% of Rs.7748/-)x12(months)=Rs.10,847x12= Rs.1,30,164/. Since the deceased was having 5 dependents, deducting 1/5th from the aforesaid amount towards the personal living expenses of the deceased, the loss of dependency of the claimants per year would come to Rs.1,30,164–(minus)1/5th Rs.1,30,164= Rs.1,04,131/-. Since the deceased was 35 years of age, the correct multiplier would be 15 and accordingly, the total loss of dependency would be calculated at Rs.1,04,131/- x15=Rs.15,61,965/-. In addition, the claimants are also entitled to a sum of Rs.70,000/- with increase of 10% MACA No.1035 of 2024 Page 6 of 8 per every three years under non-pecuniary head of damages of loss of estate, funeral expenses and consortium and, thereby, the claimants are also entitled to Rs.84,000/- towards non-conventional heads of non- pecuniary damages in view of the law laid down by the Apex Court in Pranay Sethi (supra). Hence, claimants are entitled to a compensation of Rs.15,61,965/- + Rs.84,000/-= Rs.16,45,965/-. In addition, the claimants are also entitled to interest @ 6% per annum with effect from the date of filing of the claim. The compensation is, accordingly, modified to the extent of Rs.16,45,965/- together with interest @ 6%. 6. In the result, the claim appeal is allowed in part on contest, but there is no order as to costs. The impugned award of compensation is modified to the extent of Rs.16,45,965/- together with simple interest @ 6% w.e.f. 24.01.2020. Consequently, the compensation amount be disbursed to the claimants- Respondent Nos.1 to 5 proportionately in terms of the award of the learned tribunal. MACA No.1035 of 2024 Page 7 of 8 It is made clear that the statutory deposit be refunded back to the appellant-insurer on proof of deposit of the modified compensation amount within 60 days hence before the tribunal, who shall disburse the same in the manner as ordered by it in the impugned judgment. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 3rd day of January, 2025/Subhasmita Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 06-Jan-2025 10:52:39 MACA No.1035 of 2024 Page 8 of 8