The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.722 of 2022 Panchei Swain & others Appellants Mr. P.K. Mishra, Advocate …. -Versus- Philu Baral & another …. Respondents Mr.G.P. Dutta, Advocate for respondent No.2 And MACA No. 269 of 2023 National Insurance Co.Ltd. Appellants Mr.G.P. Dutta, Advocate …. -Versus- Panchei Swain & others …. Respondents
Legal Reasoning
Mr. P.K. Mishra, Advocate for respondent Nos.1 to 3 CORAM: MR. JUSTICE R.K. PATTANAIK Order No.
Decision
ORDER 05.04.2024 MACA No.722 of 2022 I.A. No.1495 of 2022 02. 1. Instant I.A. is filed for exemption from payment of the deficit Court fee. 2. Considering the submission of Mr. Mishra learned counsel for the claimant appellant and for the reason stated therein, I.A. stands allowed. 3. Consequently, the appellant is exempted from making payment of deficit Court fee for the time being. (R.K.Pattanaik) Judge Page 1 of 6 MACA No. 722 of 2022 & MACA No 269 of 2023 03. 1. Both the appeals since arise out of a common cause of action are disposed of by the following order. 2. Heard Mr. Mishra, learned counsel for the claimants and Mr. Dutta, learned counsel for the Insurance Company. 3. None appears for the owner of the offending vehicle at the time of call. 4. Instant appeals are filed by the claimants and Insurance Company challenging the liability, involvement of the offending vehicle and quantum of compensation directed in MAC No.110/235 of 2017-12 with impugned award 22nd September, 2022 passed by the Court of learned 3rd MACT, Puri on the grounds stated therein. 5. Mr. Dutta, learned counsel for the Insurance Company would submit that there has been 21 days of delay in lodging the F.I.R., hence, therefore, involvement of the offending vehicle is doubtful. Furthermore, it is submitted that the Insurance Company filed an application before learned Tribunal to call for the G.R. record and to summon the I.O. concerned but the same was not entertained and stood rejected which could have elicited the real facts vis-à-vis involvement of the alleged vehicle. It is contended by Mr. Dutta that the driver of the vehicle in question did not have a valid D.L., therefore, learned Tribunal should have saddled the liability on the owner instead of Insurance Company. That apart, according to Mr. Dutta, the age of the deceased cannot be below 68 years since age of his wife was 68 years as per voter list, so therefore, in such view of the matter, the multiplier would have been 05 in place of 09, hence, learned Tribunal fell into error by Page 2 of 6 not considering the same. Lastly, it is submitted that learned Tribunal also committed error in not allowing the recovery right in favour of the Insurance Company. 6. Mr. Mishra, learned counsel for the claimants on the other hand justifies the impugned award dated 22nd September, 2022 on the ground that learned Tribunal has considered the claim application and on appreciation of evidence received, rightly allowed the compensation. However, Mr. Mishra submits that the deceased was engaged as a brick mason but instead of considering as a skilled labour, monthly income was assessed at Rs. 3,480/-. It is further submitted that since the deceased was aged about 55 years which has not been accepted by learned Tribunal, considering the evidence on record, multiplier would be 11 instead of 9. That apart, Mr. Mishra submits that the medical expenditure borne towards the treatment of the deceased for the period between 27th April, 2012 and 6th June, 2012 was not included which amounts to Rs. 25,000/-. With the above submission of Mr. Mishra concludes by claiming that the compensation should be recalculated with a direction for payment of Rs.4, 31, 864/-. 7. In course of hearing, it is brought to the notice of the Court by Mr. Mishra, learned counsel for the claimants that the application moved for causing production of the G.R. record and summoning of the I.O. concerned stood challenged by the Insurance Company in W.P.(C) No.11312 of 2016 followed by W.A. No. 390 of 2016, which was however dismissed by order dated 23rd November, 2016. 8. Having regard to the contention of Mr. Dutta, learned counsel for the Insurance Company as to the lodging of the report belatedly, Court finds that though such delay of 21 days has taken Page 3 of 6 place but then at the end, it has led to submission of chargesheet against the accused driver of the offending vehicle bearing registration No. OR-13-G-7473. Hence, therefore, the Court is of the view that such delay should not be a ground to suspect or to entertain any doubt vis-a-vis the involvement of the alleged vehicle in the accident. 9. Though the involvement of the vehicle in question was challenged and in that regard, an application was moved before learned Tribunal seeking production of the G.R. record and also to summon of the concerned I.O. but it did not yield any result in favour of Insurance Company and was instead rejected, which was later confirmed by order in W.A.No.390 of 2016, hence, the said matter has attained finality. 10. With respect to the D.L. of the driver of the offending vehicle, Mr. Dutta, learned counsel for the Insurance Company produced a certified copy of the order dated 20th May, 2022 of the learned Tribunal to suggest that despite evidence produced as to absence of a valid D.L., the same was not duly examined. The contention is that at the time of accident, the driver did not have a D.L. to ply the alleged vehicle. It is also brought to the notice of the Court that the owner of the offending vehicle was set ex-parte before the learned Tribunal. In absence of any hearing in presence of the owner of offending vehicle and that he has not responded to the notice at present either, the Court is of the view that such a question as to liability indemnifying the owner should be left to be considered and examined by the learned Tribunal with a proper notice to him. Page 4 of 6 11. As to the age of the deceased, the claim is based on a copy of the voter list. In fact, a copy of the voter list is produced before this Court today by Mr. Dutta, the learned counsel for the Insurance Company. On the other hand, Mr. Mishra refers to the PM report i.e. Ext. 8 and other medical papers, such as, Discharge Summary i.e. Ext.10 to suggest the age of the deceased as 55 years. Considering the above evidence received by learned Tribunal vis-à-vis the age of the deceased, notwithstanding any such age of the wife of the deceased as 68 years mentioned in the voter list, a copy of which is produced and perused, the Court is still not inclined to accept the contention of Mr. Dutta, learned counsel for the Insurance Company. In other words, the evidence such as a copy of the voter list is not sufficient to reach at a conclusion and conclusively regarding the age of the deceased being not less than 68 years as on the date of the accident. So to say, the Court is of the view that learned Tribunal cannot be said to be at fault while considering the age of the deceased as 55 years. 12. Regarding the monthly income of the deceased, the contention of Mr. Mishra, learned counsel for the claimants is justified, since he was working as a brick mason and such income should be Rs. 3,480/- instead of Rs. 3,000/- which has been assessed at by learned Tribunal. Adding 10% towards future prospects and applying multiplier of 11 instead of 9 and additional expenditure of Rs. 25,000/- borne towards treatment of the deceased at the hospital, the Court reaches at a conclusion that the compensation so determined by learned Tribunal is required to be enhanced accordingly. With the recalculation made, the amount of compensation becomes Rs. 4, 31, 864/- inclusive of general damages of Rs. 70,000/- payable to the claimants @ 6% interest per annum. Page 5 of 6 13. Hence, it is ordered. 14. In the result, the appeal stands disposed of. Consequently, the impugned award dated 22nd September, 2022 passed in MAC No.110/235 of 2017/2012 by the learned 3rd MACT, Puri is hereby modified to the extent as aforesaid with a direction to the Insurance Company to deposit an amount of Rs. 4, 31, 864/- along with interest @ 6% per annum payable from the date of application filed i.e. on and from 19th June, 2012 within eight weeks from today which shall immediately thereafter be disbursed in favour of the claimants. It is further directed that Insurance Company shall have recovery right for a decision by the learned Tribunal with a proper notice issued to the owner of the offending vehicle. The Court further directs that the statutory deposit along with accrued interest thereon shall be refunded to the Insurance Company soon after the disbursement of the compensation amount in favour of the claimants on proof of such deposit made. (R.K. Pattanaik) Judge kabita Signature Not Verified Digitally Signed Signed by: KABITARANI MAJHI Reason: Authentication Location: OHC, CTC Date: 06-Apr-2024 16:01:55 Page 6 of 6