The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.658 of 2022 & MACA No. 438 of 2023 Kabita Barik & Anr. ..... Deepak Kumar Sahoo & Ors. ..... -versus- Appellants Mr. K.C. Nayak, Advocate Mr. S.K. Mohanty, Advocate (in MACA No. 438 of 2023) Respondents Mr. R.R. Mohanty, Advocate (Respondent No. 2) Mr. A.K. Pati, Advocate (Respondent Nos. 3 & 4) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 17.04.2025 Order No. 09 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Since both the appeals arise out of a common judgment passed by the Tribunal in MAC Case No. 314 of 2017 on dtd.29.09.2022, both the appeals are heard analogously and disposed of by the present common order. 4. While MACA No. 658 of 2022 has been filed by the Claimants seeking enhancement of the award with challenge to the apportionment of the award made by the Tribunal, MACA No. 438 of 2023 has been filed by the Insurer challenging the award so passed vide the said judgment the Tribunal. Vide the said Judgment, the Tribunal allowed compensation amount of Rs.14,30,000/- along Page 1 of 6. with interest @ 7.5% per annum from the date of filing of the claim application till its realization. 5. In support of the enhancement of the award, learned counsel appearing for the Claimants contended that taking into account the evidence laid, the Tribunal should have assessed the monthly income of the deceased at Rs.12,500/- per month. But the Tribunal wrongly take the monthly income of the deceased at Rs.10,000/- per month. It is also contended that since the Tribunal allowed compensation in favour of the present Appellants as well as the parents of the deceased, 1/4th income should have been deducted towards personal expenses, in place of 1/3rd. It is accordingly contended that had the Tribunal properly appreciated the aforesaid contention, the award amount would have been assessed at a higher side. 5.1. A further contention was also made that since the present Appellants are the wife and minor son of the deceased, the award so passed should have been apportioned taking into account the status of the Appellants. But the Tribunal committed wrong by allowing 30% of the award in favour of Appellant No. 1 and 10% in favour of Appellant No. 2 and by awarding the balance 60% in favour of the Parents of the deceased. 5.2. It is contended that Appellant No. 1 being the wife and Appellant No. 2 being the minor son of the deceased, they should have been allowed compensation at the higher side.
Legal Reasoning
6. Mr. S.K. Mohanty, learned counsel appearing for the Insurer in MACA No. 438 of 2023 on the other hand while assailing the award contended that since because of the negligence on the part of the Page 2 of 6. driver of the offending car bearing Registration No. OD-4G-6784, the accident occurred, on the ground of contributory negligence, the amount of compensation should have been assessed. 6.1. In support of his submission reliance was placed to the evidence of P.W. 2, which reads as follows:- “4. I have filed my evidence in chief in shape of affidavit. Said affidavit is prepared as per my instruction. Contents of the affidavit were read over and explained to me and finding the same to be correct, I have signed on it. 5. The road on which the accident occurred connects Bramhanipal to Chandikhol and the same is National Highway. I cannot say the number of the National Highway. At the time of accident, the road was of single lane. The said road runs in north- south direction. At the time of accident, the width of the road was 12 to 15 fts. The entire road was of pitch having no road side land. The accident occurred on the left side of the road while a person proceeds from Bramhanipal to Chandikhol. The truck bearing regd. no. OR 09 K 0374 was coming from the side of Brahmanipal and was proceeding towards Chandikhol. It is a fact that the vehicle bearing regd. no. OD 04G 6784 was also proceeding from Bramhanipal towards Chandikhol. The backside of the truck bearing regd. no.OR 09 K 0374 was completely damaged due to accident. The right side of the vehicle bearing regd. no. OD 04G 6784 was completely damaged. 6. After the accident, I personally did not inform about the same to the wife of the deceased, though we informed the matter to police. It is a fact that I have not stated before police that the truck regd. no. OR 09 K 0374 overtook the vehicle bearing regd. no. OD 04G 6784 and then put sudden break. It is a fact for the first time I am deposing about such manner of accident in this Page 3 of 6. court. It is a fact that the truck bearing regd. no.OR 09 K 0374 was moving ahead of the vehicle bearing regd. no. OD 04G 6784. It is not a fact that the vehicle bearing regd. no OD 04G 6784 was proceeding behind the said truck in high speed without maintaining proper distance and for that the said vehicle dashed with the truck bearing regd. no. bearing regd. no. OR 09 K 0374 from the backside. It is not a fact that as such the accident occurred due to rash and negligent driving of the driver of the vehicle bearing regd, No.. OD 04G 6784 namely, Bhaskar Barik. It is not a fact that the evidence in chief filed by me is based upon false facts.” 6.2. It is also contended that without having any material evidence being produced, the Tribunal wrongly held the monthly income of the deceased at Rs.10,000/- per month. Taking into account the status of the deceased as a driver of a heavy vehicle, the minimum wages prescribed for high skilled worker should have been taken into consideration, which was Rs.273.50p. at the relevant point of time. It is accordingly contended that the impugned award needs interference of this Court. 7. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court taking into account the status of the deceased as a driver of a heavy motor vehicle, is inclined to held the income of the deceased to be that of a high skilled labourer i.e.Rs.273.50p. per day. 7.1. It is also the view of this Court that taking into account the no. of Claimants involved, 1/4th of the income should have been deducted towards personal expenses in place of 1/3rd. Page 4 of 6. 7.2. Taking into account the contentions raised by the learned counsel appearing for the Parties and the materials available, this Court is of the view that the Claimants are entitled to get compensation amount of Rs.13,50,000/- along with interest @ 6% payable from the date of filing of the application till its realization. 7.3. This Court held the Claimants i.e. wife and minor son of the deceased entitled to get compensation to the tune of 40% and 20% respectively and the balance 40% in favour of the parents in equal share. The Tribunal is accordingly directed to apportion the compensation amount of Rs.13,50,000/- along with interest by allowing 40% in favour of the wife, 20% in favour of the minor son and the rest 40% equally in favour of the Parents of the deceased. The Appellant-Insurer however is directed to deposit the compensation amount of Rs.13,50,000/- along with interest @ 6% interest per annum payable from the date of filing of the claim application till its realization before the Tribunal within a period of eight (8) weeks from the date of receipt of this order. On such deposit of the amount, the Tribunal shall disburse the same in favour of the Claimants-Respondents as per the above observation of this Court. Since Parents of the deceased are old persons, the entire share as due and admissible to them be released in full. 7.4. However, it is observed that if the amount as directed is not deposited within the aforesaid time period of eight (8) weeks, the compensation amount of Rs.13,50,000/- shall carry interest @ 7% starting from the expiry of the period of eight (8) weeks till the amount is so deposited. Page 5 of 6. 7.5. On such deposit of the amount, the Appellant in MACA No. 438 of 2023 shall be permitted to take back the statutory deposit along with accrued interest if any from the Registry on proper identification.
Decision
8. Both the appeals are disposed of accordingly. Photo copy of the order be placed in the connected case record. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Apr-2025 18:27:06 Page 6 of 6.