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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA NO.932 of 2023 (An appeal U/S. 173 of the M.V. Act, 1988). Mamata Nayak and another …. Appellants Sunita Dhal & Others …. Respondents -versus- For Appellants : Mr. K. Panigrahi, Advocate For Respondents : Mrs. N. Mohanty, Advocate(R-2) Mr. S.K. Dash, Advocate(R Nos. 3-6) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING : 04.03.2025 DATE OF JUDGMENT: 10.03.2025 G. Satapathy, J. 1. This appeal U/S. 173 of the Motors Vehicle Act, 1988 (In short “the Act”) by the Appellants is directed against the impugned judgment dated 31.07.2023 passed by learned 3rd Motor Accident Claims Tribunal-cum-Additional District Judge, Bhanjanagar, Ganjam (In short the “Tribunal”) in MAC Case No. 21 of 2020 directing the Respondent No.2(R2) to pay a sum of Rs. 18,87,244/- (Rs. Eighteen Lakhs Eighty Seven Thousand Two Hundred Forty Four) only MACA No. 932 of 2023 Page 1 of 22 together with the interest @ 6 % per annum w.e.f 18.02.2020 to the Appellants-Petitioners and Respondent Nos.3 to 6(R3 to 6) proportionately in an application U/S. 166 of the Act. 2. The facts in precise are that on 29.01.2020 at about 3PM, the husband of Appellant No.1(A1) namely Sunila Nayak while being travelling as a passenger in a Bus bearing Registration No. OR-05AB- 3530 from Rayagada to Berhampur died in the accident, which occurred when the Bus lost control and felled to a depth of 30 feet from the road near village Palukhola, Taptapani Ghat due to rash and negligent driving of the driver. On this incident, a police case was registered in Pattapur PS Case No. 15 of 2020 and charge sheet was submitted against the driver of the offending Bus for offence U/Ss. 279/304-A of the IPC. Accordingly, the present Appellants filed an application U/S. 166 of the Act before the learned tribunal in MAC Case No. 21 of 2020 and simultaneously the R3 to 6 filed another application in MAC No.38 of 2020 before the 8th MACT, Ganjam at Aska for compensation due to MACA No. 932 of 2023 Page 2 of 22 death of the deceased in the motor vehicular accident. However, MAC No. 38 of 2020 was withdrawn and the Applicants therein were arrayed as OP Nos. 3 to 6 in MAC Case No. 21 of 2020. According to the claimants, the deceased was aged about 28 years at the time of death and he was working as a driver in a school bus and earning @ 21,000/- per month. Accordingly, the claimants in MAC Case No. 21 of 2020 claimed a sum of Rs. 20,00,000/-, whereas the claimants in MAC No. 38 of 2020, who are R3 to 6 in this appeal claimed Rs. 10,00,000/- as compensation for the loss of the deceased by impleading the owner and insurer of the offending vehicle. 3. In response to the notice of the claim, the owner of the offending vehicle did not contest the claim and was accordingly, set exparte on 29.09.2022, but the insurer of the offending vehicle who is the R2 in this appeal filed its written statement denying the claim of the claimants with regard to age, income and profession of the deceased. Additionally, the insurer-R2 also took a plea that it is not liable to indemnify the MACA No. 932 of 2023 Page 3 of 22 owner of the offending vehicle, since the driver was not having any valid and effective driving licence at the time of accident. Be it noted, OP Nos. 3 to 6, while being arrayed in the claim in MAC No. 21 of 2020 as Opposite Parties came with a plea in their written statement that the claimant-wife and son being paid with a ex gratia compensation from Chief Minister’s Relief Fund did not pay a single pie to them and they further claimed for payment of compensation to them in equal proportion, since they are not only the natural legal heirs of the deceased, but also dependents on him. 4.
Legal Reasoning
After having considered the rival pleadings, the learned Tribunal struck with three issues relating to cause of death of the deceased & accident occurring due to rash and negligent driving of the offending bus; entitlement of the claimants and R3 to 6; and liability of OP Nos. 1 and 2 to pay the compensation. The learned Tribunal accordingly, allowed the parties to lead evidence and in support of their claim, the claimants examined Petitioner No.1 as PW1 and relied upon MACA No. 932 of 2023 Page 4 of 22 document in Police Papers in Pattapur PS Case No. 15 of 2020 under Ext. 1 to 6, original DL particular and ID issued to the deceased under Exts 8 & 9 as against sole oral evidence of OP No.4 as OPW1 and copy of the claim application in MAC Case No. 38 of 2020 by OP Nos.3 to 6, however, no evidence has been tendered by the insurer. 5. After analyzing the evidence on record upon hearing the parties, the learned Tribunal passed the impugned judgment directing R2 to pay the compensation of amount of Rs.18,87,244/- to the Appellants and R3 to 6 proportionately, but the Appellants being aggrieved with the quantum of compensation and apportionment of the claim have preferred this appeal. 6. In assailing the impugned judgment, Mr. Kalpataru Panigrahi, learned counsel for the Appellants has submitted that impugned judgment suffers from illegality on the question of quantum of compensation and apportionment of the claim amount amongst the parties inasmuch as the learned Tribunal has taken the MACA No. 932 of 2023 Page 5 of 22 income of the deceased notionally on the basis of minimum wage, but the principle remains that while assessing the income of the deceased in absence of any concrete evidence, the learned Tribunal has to assess the income of the deceased on the basis of real wages that were being paid to the deceased on the basis of speculation and, therefore, the learned Tribunal ought to have taken the income of the deceased at least @ Rs. 15,000/- per month, instead of Rs. 10,000/- per month which was taken by the Tribunal, which further fallen in error in adding 25% of the income of the deceased as future prospects, despite having come to a finding that the deceased was a self employed and 40% of his income should be added as future prospects. It is accordingly, urged by Mr. Panigrahi that the compensation be quantified by taking into account the income of the deceased @ Rs. 21,000/- per month by adding 40% of the income of the deceased @ Rs. 15,000/- per month towards future prospect. Mr. Panigrahi has further argued that out of R3 to 6, only R3 being the mother of the deceased is entitled to MACA No. 932 of 2023 Page 6 of 22 compensation, but R4 to 6 being major sister, minor sister and major employed brother being not dependents on the deceased are not entitled to any compensation. Mr.Panigrahi has accordingly, prayed to pass appropriate order to direct R2 to pay the enhanced compensation by modifying the apportionment of the compensation amongst the Appellants and R3 only after excluding R4 to 6 as not entitled to compensation. 6.1. In reply, Mr. Soubhagya Kumar Dash, learned counsel for the R3 to 6 has submitted that the learned Tribunal has not committed any illegality either in determining the compensation or apportioning it amongst the Appellants and R3 to 6 inasmuch as the act itself provides for compensation to the legal representative of the deceased and it does not restrict the right to claim compensation solely to the dependents. He has further alternatively submitted that even if the claimants are not financially dependents on the deceased, they retain the right to seek compensation for the loss of estate and other conventional heads and, therefore, the plea as MACA No. 932 of 2023 Page 7 of 22 advanced by the Appellants being untenable in the eye of law may kindly be rejected. 6.2. On the other hand, Mrs. Nibedita Mohanty, learned counsel for R2-insurer has in fact not replied to the dispute of apportionment, but she has strongly contended that the learned Tribunal has not committed any illegality in determining the compensation, however, she assails the finding of the learned Tribunal for ordering penal interest @ 9% per annum, if the award is not paid within two months of the receipt of copy of the order. It is accordingly, submitted by Mrs. Mohanty that in absence of any evidence of income of the deceased, the Tribunal has rightly quantified the compensation by taking the income of the deceased on the basis of minimum wages and, therefore, such finding needs no interference, but she prays to set aside the direction for payment of penal interest. Mrs. Mohanty has accordingly, prayed to dismiss the appeal. 7. After having considered the rival submission upon perusal of evidence on record, since the present appeal U/S.173 of the Act essentially an MACA No. 932 of 2023 Page 8 of 22 appeal in the nature of an appeal U/S. 96 of the Code of Criminal Procedure, 1908 (In short “the CPC") in essence, this Court is under legal obligation to consider all the issues both on facts and law as raised by the parties and decide the appeal accordingly by re- appreciating the evidence on record vis-a-vis the pleadings of the parties. On a studied and comparative scrutiny of rival submissions, two questions arise before the Court for adjudication; viz firstly, the quantum of compensation and secondly; the apportionment of compensation between the Appellants and R3 to 6. Be it noted, the learned Tribunal while adjudicating the claim of the claimants has answered all the three issues in favour of the claimants and R3 to 6, but these findings have neither been challenged by the insurer nor by the owner. Further, the police paper under Exts. 1 to 7 if read together with the oral evidence, it gives rise to a conclusion by preponderance of probability that the deceased died in the accident due to rash and negligent driving of the driver of the offending vehicle and, therefore, the learned Tribunal on appreciation of MACA No. 932 of 2023 Page 9 of 22 evidence has rightly held that the deceased died in a motor vehicular accident due to rash and negligent driving of the driver of the offending Bus, however, the maintainability of the claim has not been challenged by any of the parties and thus, the issue of maintainability of the claim having been given a quietus by the parties, the findings thereon by the learned Tribunal has attained finality and needs no interfere by this Court in this appeal. 8. Once the claim is found maintainable, the next question comes for adjudication is the quantum of compensation. In quantifying the compensation, the Tribunal is primarily required to ascertain the loss of dependency which can be calculated by the formula laid down by the Apex Court in Sarla Verma Vrs. Delhi Transport Corporation;(2009) 6 SCC 121 which prescribes a three steps formula in which the first step is for determination of the income of the deceased per annum. It is prescribed therein that the income of the deceased per annum should be determined by making deduction of the amount which the deceased could MACA No. 932 of 2023 Page 10 of 22 have spent on himself by way of personal and living expenses and the net amount could be considered as the contribution of the deceased to the depending family. Accordingly, a formula has been provided in Sarla Verma(supra) for determining the deduction towards the personal living expenses of the deceased person and it has been prescribed therein that there should be a deduction of 1/3rd from the actual income of the deceased, where the number of dependent family members is two to three, 1/4th where the number of dependent family members is four to six and 1/5th where the number of dependent family members exceed six, but it is further clarified therein that when the deceased died as a bachelor, normally 50% of deduction is the rule towards the personal & living expenses of the deceased. 9. Before applying the rule as prescribed in Sarla Verma(supra) for determining the deduction towards personal living expenses of the deceased, it appears that although there are six claimants to be dependent on the deceased, but it is claimed on behalf MACA No. 932 of 2023 Page 11 of 22 of widow wife and son of the deceased as claimants that except the mother of the deceased, none other such as the brother and sisters are entitled to compensation as dependents of the deceased. This conundrum persuades this Court to see the pleadings and evidence of the claimants. The specific plea of R3 to 6 in their claim for compensation is that after the death of his father, the deceased being the elder son, Karta and only earning member of the family and they being the widow mother, major unmarried sister, minor sister and younger brother were fully dependent upon the earning of the deceased along with the Appellants and now they are beggar in the street. The issue in this question spelt out a dispute between the widow and her child on one side and widow mother, major and minor sisters and brother on the other side asserting their right to compensation, but the mother, brother and sisters of the deceased are also claiming share in the compensation in equal proportion with that of widow and infant son of the deceased who also lay their claim MACA No. 932 of 2023 Page 12 of 22 on the compensation along with widow mother of the deceased, but to the exclusion of sisters and brother. 10. In support of their claim, R3 to 6 relies upon the decision in National Insurance Company Ltd. Vrs. Birender and others; AIR 2020 SC 434, wherein after surveying its earlier decision and the distinction between right to apply for compensation and entitlement to compensation as well as on adverting to the provision of Sec. 165 of the Act, the Apex Court by interpreting Section 2(11) of the Code of Civil Procedure, 1908 (In short “CPC”) has held thus in paragraph-15:- “15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract income basis and were earning meagre between Rs.1,00,000/ and Rs.1,50,000/ per Page 13 of 22 MACA No. 932 of 2023 annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.” 11. True it is that in the present case, R3 to 6 being the legal representative of the deceased have a right to apply for compensation, but fact remains that whether they can be considered as a dependent on the deceased to have a share in the amount of compensation under the heading of “loss of dependency” which can be answered by placing reliance on the decision in New India Assurance Company Ltd. Vrs. Anand Pal and others; 2024 (1) T.A.C. 3 (S.C.), wherein in a similar situation with regard to entitlement of brothers and sisters as dependents upon the deceased, the Apex Court after referring to paragraph 31 of the Sarla Verma(supra) has held in paragraph 4 and 5 of the judgment as under:- In support of his contention, Mr. Kumar “4. relies on Sarla Verma (Smt.) & Ors. Vrs. Delhi Transport Corporation & Another; (2009) 6 SCC 121, wherein this Court held as under: “31.Where the deceased was a bachelor and the claimants are the follows parents, deduction the MACA No. 932 of 2023 Page 14 of 22 time, in which event a different principle. In regard to bachelors, normally, 50% is deducted living expenses, as personal and because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have income and will not be his own considered as a dependant and the mother alone will be considered as a the absence of dependant. In evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either and earning, or married, or be dependent on the father. independent be 5. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents as because they will either be independent and earning, or married, or be dependent on the father.” 12. After a cumulative reading of principle laid down by the Apex Court in the decisions referred to above, this Court now adverts to see the impugned judgment with regard to the entitlement of R3 to 6 as dependents. The learned Tribunal on the last part of paragraph-9 of the impugned judgment by considering MACA No. 932 of 2023 Page 15 of 22 the evidence has held that R4 to 6 are all entitled to get compensation, but since R5 (Ranima Nayak) being married and leading conjugal life with her husband; and R6 being a major employed, equity must not prevail so far as quantum of compensation is concerned. While observing so, the learned Tribunal has taken into consideration the evidence of OPW1. For clarity, the relevant part of consideration of the evidence of OPW1 in judgment by the Tribunal is extracted as under:- “She (OPW1) further stated in her cross- examination that Ranima (Respondent No.5) is now married and is having a child. She is now staying with her husband in his house and she got married after the death of Sunil. Cross-examination of DW.1 (OPW1) further reveals that her younger brother Samil (Respondent No.6) is now working in a shop after the death of Sunil and is now managing the expenditure of their family. From the available documents and from the oral evidence of Respondent No.4, it is now clear that at the time of death of Sunil Nayak, Respondent No.3 Kuni Nayak who is the widow mother of the deceased was staying with Sunil Nayak and Sunil Nayak was taking care of her. Similarly, Respondent No.4 Minati Nayak who is the elder sister of the deceased was also sharing the same household since she is not married is also the rightful claimant on the compensation. Respondent No.5 Ranima Nayak was minor at the time of accident and in the meantime she has already MACA No. 932 of 2023 Page 16 of 22 got married and is living with her husband in his house. Similarly, Respondent No.6 was a minor and was unemployed at the time of death of his elder brother Sunil Nayak. But, after the death of Sunil Nayak he (R6) is managing the affairs of his family.” 13. On a careful scrutiny and conspectus of the aforesaid facts and evidence which has not been disputed by any of the parties, it appears that R3 is the widow mother and R4 is the major unmarried sister of the deceased, but since there being some evidence that R4 was depending on the income of the deceased, although she being major unmarried daughter is entitled to compensation under the heading of “loss of dependency” in addition to the widow mother since the law laid down by the Apex Court in Sarla Verma(supra) which was reiterated in Anand Pal(supra) focuses on the evidence to decide the issue of dependency of brothers and sisters and there being evidence in this case to indicate about major married sister Minati Nayak depending on the income of the deceased brother is entitled to compensation under the heading of “loss of dependency”, but apportionment of MACA No. 932 of 2023 Page 17 of 22 the compensation amount would be considered at appropriate stage by taking into account their life expectancy and requirements in addition to the fact that their requirement can also be managed by R6 being a major earning son of the family right now, however, R5 and 6 are not entitled to compensation under the heading of “loss of dependency”, but they may have the right to a share on the non-conventional heads of loss of estates as well filial consortium towards loss of love and affection of their deceased brother. 14. In examining the findings of the learned Tribunal with regard to income of the deceased in the light of the contention canvassed by the learned counsel for the Appellants, there appears no dispute that the learned Tribunal has assessed the income of the deceased by wholly relying upon the minimum rates of wages per day in terms of the notification of labour department and accordingly, the learned Tribunal has calculated the monthly income of the deceased @ Rs. 10,096/- per month, but the copy of the claim application of the Appellants and that of R3 to 6 as MACA No. 932 of 2023 Page 18 of 22 supplied by the learned counsel for the parties reveal that the Appellants have showed the monthly income of the deceased @ Rs. 21,000/- per month in their claim application, whereas R3 to 6 have described the monthly income of the deceased @ Rs. 15,000/- per month + Rs. 100/- DA per day. However, no evidence has been produced by either of the parties to show the monthly income of the deceased for a particular amount. In absence of any evidence with regard to the profession/avocation of the deceased, the learned Tribunal has rightly taken the deceased as skilled labour by speculation while applying the minimum rates of wage per day fixed for skilled labour and, therefore, such finding being on sound application of mind and law needs no interference. This Court, therefore, takes the monthly income of the deceased @ Rs. 10,096/- per month, but the learned Tribunal has fallen in error while adding 25% of such income towards future prospects even after holding that since the deceased was self employed, 40% of his income should be added towards future prospects by relying upon the decision of Apex MACA No. 932 of 2023 Page 19 of 22 Court in National Insurance Company Ltd. Vrs. Pranay Sethi and others ; (2017) 16 SCC 680 since the deceased was aged about 31 years at the time of death. Accordingly, the deceased’s annual income would be Rs. 10,096/- X 12= Rs. 1,21,152/-, but since the deceased was aged about 31 years, his net monthly income by adding 40% towards future prospects would be Rs. 1,21,152/+40% of 1,21,152/= Rs.1,69,613/-. 15. Applying the principle of Sarla Verma(supra), since the deceased was considered to have four dependents, 1/4th of the aforesaid income is to be deducted from it to determine the “loss of dependency”. Accordingly, the “loss of dependency” per year is calculated @ Rs. 1,69,613- Rs.42,403(1/4th of Rs.1,69,613)=Rs.1,27,210/-. Hence, the correct figure under the heading of “loss of dependency” would come to Rs. 1,27,210/- X 16 (multiplier)= Rs. 20,35,360/-. In addition, the claimants are also entitled to receive Rs. 84,000/- towards non conventional heads of loss of consortium, estate and funeral expenses by adding MACA No. 932 of 2023 Page 20 of 22 10% increase on the amount of Rs. 70,000/- for every three years for two times for death having occurred in the year 2020 in terms of the law laid down by the Apex Court in Pranay Sethi (supra). Accordingly, the modified compensation amount is calculated at Rs.20,35,360/+Rs. 84,000/=Rs. 21,19,360/-(Rupees Twenty One Lakhs Nineteen Thousand Three Hundred Sixty) only. In addition, an interest @ 6% per annum is applicable to this case, but the imposition of penal interest @ 9% per annum on the compensation amount being not sustainable is hereby set aside since Sec. 171 of the Act only contemplates about interest, but not penal interest. 16. As a consequence of the discussion made hereinabove, the compensation amount is recalculated at Rs. 21,19,360/- together with interest @ 6 % per annum, but the apportionment of the award is to be made accordingly by taking into consideration the fact discussed in paragraph No.13. Thus, in case of payment of modified awarded amount as calculated above, 25% of it in the name of widow of the deceased for five MACA No. 932 of 2023 Page 21 of 22 years; 30% of it in the name of minor son of deceased till he attains majority; 10% of it in the name of mother and 5% of it in the name of unmarried sister (Minati Nayak) of the deceased for five years be deposited in any Nationalized Bank without any facility of premature withdrawal, unless being permitted by the learned Tribunal and 20% of the awarded amount be disbursed to the widow and son of the deceased in cash and out of rest 10% of the awarded amount, 5% be disbursed to the mother in cash and rest 5% would be disbursed to the two sisters and brother of the deceased proportionately. It is further made clear that the Court fee in the appeal be realized from the Appellants on awarded amount. 17.
Decision
In the result, the appeal stands allowed on contest, but in the circumstance, there is no order as to costs. Ergo, the recalculated award and its disbursement to the parties are accordingly modified to the extent indicated above. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 10-Mar-2025 17:49:15 Orissa High Court, Cuttack, Dated the 10th March, 2025/Priyajit MACA No. 932 of 2023 Page 22 of 22