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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1080 of 2024 (In the matter of application under Section 173 of the Motor Vehicles Act, 1988). Branch Manager, Oriental Insurance Co. Ltd., Sambalpur Appellant … -versus- Manjulata Panda and Others … Respondents For Appellant : Mr. P.K. Mahali, Advocate For Respondents : Mr. S. Bahadur, Advocate (Respondent Nos.1 - 5) Mr. M.K. Swain, Advocate appearing on behalf of Mr. S.C. Sahoo, Advocate (Respondent No.6) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:07.01.2025(ORAL) G. Satapathy, J. 1. This is an appeal Under Section 173 of the MV Act, 1988 (in short “the Act”) by the appellant- insurer challenging the impugned judgment dated 03.05.2024 passed by the learned 4th Motor Accident Claim Tribunal Sundargarh (in short, “the learned Tribunal”) in M.A.C Case No.42/240 of 2021-22 granting a sum of Rs.16,48,664/- along with simple MACA No.1080 of 2024 Page 1 of 12 interest at the rate of 6% per annum w.e.f the date of filing the application on 21.09.2021 in an application Under Section 166 of the Act. 2. Facts in precise are that on 14.06.2019 at about 09.00 P.M, while one Rashmi Mukunda Panda (hereinafter referred to as “the deceased”) was returning to his home at village Lephripada on his Motor Cycle OD-16B-2055, on the way at Mahadevpada, Giringkela, one Auto Rickshaw OD-16-F- 1184 (hereinafter referred to as “offending vehicle”) suddenly came from the opposite side and dashed the deceased as a result the deceased sustained severe bleeding injuries and succumbed to death at DHH, Sundergarh. Accordingly, Lephripada P.S. Case No. 64
Legal Reasoning
of 2019 was registered on the FIR presented by one Ballav Kumar Panda and the criminal case was investigated into which culminated the submission of charge-sheet against the driver of the offending vehicle namely Sushanta Kumar Patel. On this accident, the legal representatives of the deceased filed an application under Section 166 of the Act claiming MACA No.1080 of 2024 Page 2 of 12 compensation of Rs.23,00,000/- by impleading the owner and insurer of the offending vehicle for the loss of their sole bread earner which came to be registered as MAC Case No. 42 of 2021. According to the claimants-Respondent No. 1 to 5, the deceased was aged about 46 years and he was working as a Supervisor at Dulanga Coal Mines with salary at the rate of 15,340/- per month. 2.1. In response to the notice of the claim, the owner of the offending vehicle-cum-Respondent No.6 contested the claim by filing written statement denying all the allegations including the involvement the offending vehicle in the accident. However, the insurer- cum-appellant also contested the claim of the R 1 to 5 by filing written statement denying its liability to indemnify the owner of the offending vehicle on the ground that the said vehicle was not involved in the accident and the driver of the vehicle was not having any valid Driving License and the offending vehicle was plying without permit. While praying to dismiss the claim of R 1 to 5, the appellant-insurer had also MACA No.1080 of 2024 Page 3 of 12 disputed the income of the deceased in the written statement. 2.2. Basing on the rival pleadings, the learned Tribunal struck five issues and allowed the parties to lead the evidence. Accordingly, the claimants examined two witnesses including the wife of the deceased as PWs 1 & 2 and relied upon in evidence the police papers in Lephripada P.S. Case No.64 of 2019 under Ext. 1 to 7 as against the only documentary evidence by the appellant-insurer under Ext.A which is the insurance policy of the offending vehicle valid at the time of the accident. After having duly considered the evidence and pleadings on record upon hearing the parties, the learned Tribunal passed impugned judgment directing the Appellant-Insurer to pay compensation of Rs.16,48,664/- together with the simple interest at the rate of 6% per annum w.e.f. the date of filing of the claim. Being aggrieved with the aforesaid judgment, the insurer has preferred this appeal. MACA No.1080 of 2024 Page 4 of 12 3.
Legal Reasoning
In the course of hearing, Mr. Prasant Kumar Mahali, learned counsel for the appellant, however, challenges the impugned award on three grounds; firstly, planting of the Auto Rickshaw in the accident, secondly, the negligence of the deceased by not wearing the headgear (helmet) and thirdly, the quantum of compensation. It is also argued by Mr. Mahali that since the M.V. report discloses the involvement of only the motor cycle, but not the offending vehicle and thereby, the insurer is absolved of liability to pay compensation to the claimants. In elaborating, Mr. Mahali submits that although the FIR was lodged against unknown vehicle, but subsequently the offending vehicle-cum-Auto Rickshaw was planted by the claimants after 8 months of the accident only to get the compensation. It is also submitted by Mr. Mahali that since the deceased was not wearing the helmet at the time of the accident, he, thereby, had contributed to the negligence and on that score, the claimants are not entitled to full compensation, rather the deceased being guilty of negligence and thereby, MACA No.1080 of 2024 Page 5 of 12 the claimants are at best entitled to 50% of the compensation amount as determined by the learned Tribunal. Further Mr. Mahali argues and submits that since the claimants could not establish that the deceased was serving as a Supervisor and thereby, taking the profession of the deceased as a skilled labour is contrary to the established principle of law and, therefore, at best the deceased can be considered to be an unskilled labour and the quantum of compensation is accordingly liable to be reduced/modified on that ground. Further, Mr. Mahali submits that since Rs. 2,37,000/- has been granted to the claimants under the non-pecuniary head of damages, the same required to be reduced to only Rs.84,000/- after adding 10% enhancement to Rs.70,000/- which is prescribed under non-pecuniary head of damages, for six years in view of the law laid down by the Apex Court in National Insurance Company Vrs. Pranay Sethi and others; (2018) 69 OCR (SC) 1 and Shri Ram General Insurance Co. Ltd Vrs. Bhagat Singh Rawat and others disposed MACA No.1080 of 2024 Page 6 of 12 of on 27.03.2023 in Civil Appeal Nos. 2410- 2412/2023 [SLP [C] Nos. 11669-11671/2020]. Mr. Mahali in the alternative prays to reduce the quantum of compensation by taking into account the aforesaid submissions. 3.1. On the other hand Mr. Samarendra Bahadur learned counsel for the claimants-cum-R-1 to 5 submits that there is neither any evidence nor pleading by the insurer to say that the Auto Rickshaw was planted or the deceased was not wearing any helmet and thereby, contributed to the negligence. Further, Mr.Bahadur submits that since the MVI Report has not been relied upon by the insurer in the proceeding before the Tribunal, the aforesaid contentions of the appellant is liable to be rejected at the threshold. Mr. Bahadur, however, does not seriously dispute about the excessive compensation granted under the non-conventional head of general damages and he agrees with the principle that the claimants are entitled to Rs. 84,000/- under that head. MACA No.1080 of 2024 Page 7 of 12 Mr. Bahadur, accordingly, prays to pass appropriate order by modifying the compensation. 3.2. Mr. Manas Kumar Swain, learned counsel appearing on behalf of Mr. Subash Chandra Sahoo, learned counsel for the R-6, however, submits that since no liability has been fixed upon the owner, the owner of the offending vehicle being the insured with the appellant is not liable to pay the compensation to the claimants and the learned tribunal has rightly saddled the liability of payment of compensation on the insurer-appellant. Mr.Swain accordingly prays to pass appropriate order. 4. After having considered the rival submissions upon perusal of record, the dispute between the parties now boils down only to three grounds; firstly, whether the Auto Rickshaw was planted and only the motor cycle was involved in the accident; secondly, the deceased had contributed to the negligence by not wearing the helmet; and lastly, whether the award of compensation as granted by the Tribunal is liable to be modified or reduced. In MACA No.1080 of 2024 Page 8 of 12 addressing the first ground, it goes without saying that the insurer-appellant has neither pleaded in its written statement nor led any evidence to the effect that the Auto Rickshaw was planted in the accident and only the motorcycle was involved in the accident. Further, the appellant-insurer has also not relied upon the MVI Report, and it is raised for the first time before this Court and, therefore, such plea cannot be accepted at this stage. Besides, facts which have not been pleaded, evidence thereon cannot be let in and even evidence, if any has been let in on such facts which have not been pleaded can be ignored. Thus, the appellant-insurer having not relied upon MVI report in its pleading is precluded to raise such issue in this appeal for the first time. The plea of the appellant-insurer about planting of Autorickshaw is not acceptable and is accordingly rejected. It is equally true that the appellant-insurer had never pleaded that the deceased had contributed to the accident by not wearing helmet and thereby, such plea of the appellant-insurer being taken without any pleading could be legally ignored on the principle of pleadings reiterated above. Further, the learned Tribunal after taking into account the oral as MACA No.1080 of 2024 Page 9 of 12 well as documentary evidence of the police paper as exhibited under Exts. 1 to 7 has rightly held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and the deceased died in such accident. Once it is established that the deceased died in an accident due to rash and negligent driving of the offending vehicle, the claim is maintainable. In this case, the tribunal has rightly held that the claim is maintainable. 5. Once the claim is found to be maintainable, the next question comes for adjudication is as to what amount the claimants are entitled to as compensation and as to who is liable to pay such compensation. In this case, the pleadings of the claimants are that the deceased was working as supervisor, but the appellant- insurer seriously disputes the profession of the deceased as a supervisor. However, on perusal of the evidence on record, this Court does not find a single word with regard to disputing the profession of the deceased to be a Supervisor and even, no suggestion was given to the claimant-witness examined in this case to indicate that the deceased was not serving as a supervisor. However, MACA No.1080 of 2024 Page 10 of 12 the learned Tribunal has considered the deceased to be supervisor, but in absence of concrete proof of income of the deceased, the Tribunal has rightly relied upon the daily wages notification to assess the income of the deceased. This Court, however, does not find any error apparent on such finding of the learned Tribunal and since the deceased was proved to be a supervisor, his income can be assessed as a skilled labour and at the time of accident, the daily wages for skilled labour was Rs.388/- which was rightly taken by the Tribunal and, therefore, no other ground being advanced to dispute the assessment of income of the deceased, the loss of dependency has been rightly calculated by the Tribunal. Now coming to the next issue of the award of compensation under the non-pecuniary head of general damages, it is an admitted law that the claimants are only entitled to Rs. 84,000/- in this case by taking into consideration that the accident occurred around 6 years back and revision of 10% for every three years in the amount of Rs. 70,000/- under the head of general damages is permissible. Hence, the claimants are entitled to Rs.84,000/- under the head of general damages and, MACA No.1080 of 2024 Page 11 of 12 therefore, the claimants are entitled to compensation of Rs.14,18,664/-+Rs.84,000/-=Rs.15,02,664 together with simple interest at the rate of 6% per annum with effect from the date of filing of the claim application. 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.15,02,664/- together with simple interest @ 6% w.e.f. 21.09.2021 which shall be deposited by the appellant-insurer before the learned Tribunal within 60 days hence. It is made clear that the statutory deposit be refunded back to the appellant-insurer on proof of deposit of the modified compensation amount before the tribunal, who shall disburse the same proportionately in terms of its award. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 10-Jan-2025 17:02:01 Orissa High Court, Cuttack, Dated the 7th day of January, 2025/Priyajit MACA No.1080 of 2024 Page 12 of 12