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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1126 of 2023 (In the matter of application under Section 173 of the Motor Vehicles Act, 1988). Manager-legal Shriram General Insurance Co. Ltd., Rajastan Appellant … -versus- Karunabala Das and Others … Respondents For Appellant : Mr. A.A. Khan, Advocate For Respondents : Mr. B.B. Singh, Advocate(R-1 to 5) Mr. P.K. Mishra, Advocate(R-6) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT:13.01.2025(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 30.07.2022 passed by the learned Addl. District Judge- cum-Member 3rd Motor Accident Claims Tribunal Bhadrak (in short, “the learned Tribunal”) in M.A.C Case No.131 of 2017 granting a sum of Rs.15,24,272/- (Rupees Fifteen Lakhs Twenty MACA No.1126 of 2023 Page 1 of 10 Four Thousand Two Hundred Seventy Two) only along with simple interest @ 7% per annum w.e.f 27.10.2017 in an application Under Section 166 of the Act. 2. Facts in precise are that on 27.08.2017 at about 04.00 A.M in the morning on NH-05 near Kanta Dhaba, Neulapur while one Sushanta Kumar Das (hereinafter referred to as “the deceased”) was returning from Cuttack after selling vegetables in his hired vehicle bearing Registration No. OR-22D- 7771(MAXXIMO)(hereinafter referred to as “the offending vehicle”), the driver lost control of the vehicle due to his rash and negligent driving and dashed against the vehicle parked on the extreme left side of the road, as a result the deceased sustained grievous injuries on his person and died at the spot. Accordingly, Dharmasala P.S. Case No. 326 of 2017 was registered which resulted in submission of charge- sheet against the driver of the offending vehicle. On this accident, the legal representatives of the deceased filed an application under Section 166 of the Act MACA No.1126 of 2023 Page 2 of 10 claiming compensation of Rs.12,00,000/- 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. 131 of 2017. According to the claimants-Respondent Nos. 1 to 5, the deceased was aged about 34 years and he was a Vegetable Seller earning @ Rs. 15,000/- per month. 2.1. In response to the notice of the claim, the owners of the offending vehicle-cum-R-6 & 7 prior and after sale did not contest the claim and were set exparte. However, the insurer-cum-appellant contested the claim by filing its written statement denying all the allegations made in the claim application and pleading interalia to disown its liability on the specific ground of violation of terms and conditions of the policy by the insured. However, the appellant-insurer did not dispute its policy with the offending vehicle, but it also seriously disputed the income as of the deceased. 2.2. After registering the claim application, the
Legal Reasoning
learned trial Court allowed the parties to lead evidence and accordingly, the claimants-R-1 to 5 examined two MACA No.1126 of 2023 Page 3 of 10 witnesses including one of the claimant as PW 1 and relied upon the certified copy of the police papers in the accident case under Ext. 1 to 8 as against the documentary evidence of vehicle particulars and insurance policy under Ext A to C and the oral evidence of Legal Officer of the Insurance Company as OPW1. After appreciating the evidence on record upon hearing the parties, the learned Tribunal passed the impugned judgment directing the Appellant-Insurer to pay the claimants R-1 to 5 a sum of Rs.15,24,272/- together with the simple interest @ 7% per annum w.e.f. the date of filing of the claim application as compensation. Being aggrieved with the aforesaid judgment, the insurer has preferred this appeal. 3.
Legal Reasoning
In the course of hearing, Mr. Adam Ali Khan, learned counsel for the appellant, however, strongly disputes not only the age and income of the deceased, but also the violation of policy conditions by owner of the offending vehicle for allowing the deceased to travel as a gratuitous passenger in the offending vehicle. Accordingly, Mr. Khan prays to allow MACA No.1126 of 2023 Page 4 of 10 the appeal to shift the liability to the owner of the offending vehicle-R-6 & 7 to pay the compensation. 3.1 On the other hand, Mr. B.B. Singh, learned counsel appearing for Claimants-R-1 to 5 submits that the learned tribunal has not committed any illegality in awarding compensation to the claimants-Respondents and directing the insurer to indemnify the owner of the offending vehicle since the appellant-insurer is contractually liable to indemnify the owner of the offending vehicle. Accordingly, he prays to dismiss the appeal. 3.2 On the contrary, Mr. Pradeep Kumar Mishra, learned counsel appearing for R-6-cum-owner of the offending vehicle, however, stoutly denies the submission of the appellant by submitting that the deceased was never travelling as a gratuitous passenger in the offending vehicle, rather he was travelling as an owner of goods and thereby, the appellant-insurer being contractually liable to indemnify the insurer, the tribunal has not committed any illegality in fastening the liability on appellant-insurer to MACA No.1126 of 2023 Page 5 of 10 indemnify the owner of the offending vehicle to pay the compensation. Mr. Mishra accordingly, prays to dismiss the claim. 4. After having considered the rival submissions, the dispute which emerges is the entitlement of the claimants to the compensation, so also the liability of the party to pay such compensation to the claimants. The age and income of the deceased is, however, disputed by the appellant-insurer, but no material or evidence has been produced by it to dispute the age and monthly income of the deceased. In absence of evidence and materials contrary to the finding of the Tribunal, it would be highly improper to interfere in the finding of the learned Tribunal with regard to age and income of the deceased in a claim application which is a beneficial provision to prevent the kith and kin of a person losing his life in a vehicular accident from starvation, merely because the appellant has challenged the age and income of the deceased. However, in this case, the learned tribunal has granted MACA No.1126 of 2023 Page 6 of 10 a sum of Rs. 15,24,272/- as compensation to the claimants under the following heads:- Head of Compensation Sl. No. 1. Compensation after multiplier: 214 x 30 x 12 x 3/4 x 16=9,24,480 Amount (In Rs.) 9,24,480/- 2. Future Prospects @ 40% 3,69,792/- 3. Spousal, filial and parental 2,00,000/- consortium 40,000 X 5=2,00,000/- 4. Funeral expenses 5. Loss of estate 15,000/- 15,000/- TOTAL 15,24,272/- (Rupees Fifteen Lakhs Twenty Four Thousand Two Hundred Seventy Two) A perusal of the aforesaid table would go to indicate that the learned tribunal has granted a sum of Rs. 2,00,000/-as a consortium which includes filial and parental consortium, but law in this regard is well settled in National Insurance Company Vrs. Pranay Sethi and others; (2018) 69 OCR (SC) 1, wherein a Constitutional Bench of five Judges of the Apex Court has made it clear that the consortium amount may not exceed Rs. 40,000/- and, therefore, in this case, the consortium as awarded to the claimants-Respondents is MACA No.1126 of 2023 Page 7 of 10 required to be reduced to Rs. 40,000/- instead of Rs. 2,00,000/- and therefore, the claim amount to the claimants be reduced accordingly by adding 10% increase in the amount of Rs. 70,000/-(Rs.40,000/- towards consortium + Rs.30,000/- towards funeral expenses and loss of estate) as required to be granted under the heading of general damages for every three years and the accident having occurred in the year 2017, the general damages required to be granted to the claimants-Respondents in this case should be Rs. 84,000/-. Accordingly, the claim is required to be reduced to Rs. 13,78,272/- along with interest at the rate of 6% per annum w.e.f the date of filing of the claim i.e. 27.10.2017. 5. It is, however, claimed by the appellant- insurer that the owner is liable to pay the compensation since he has allowed the deceased to travel as a gratuitous passenger, but the learned tribunal has rightly taken into consideration such contention of the appellant in paragraph-9 of the impugned judgment which reads as under :- MACA No.1126 of 2023 Page 8 of 10 “In Para-7 of the written statement the O.P. No. 2 has mentioned that the deceased was a labourer by the time of his accidental death, whereas in para-8, he has mentioned that the deceased was working as the driver of the above offending vehicle at the time of his in his accidental death, whereas D.W. 1 evidence has stated that the deceased was a gratuitous passenger of the offending vehicle at the time of accident. So, the plea taken by the O.P. No.2 in his evidence that the deceased was a gratuitous passenger cannot be taken into consideration as it is beyond pleading. This is admitted in paragraph no.6 in the evidence of O.P.W.1 examined on behalf of O.P. No.2.” 6. It is, therefore, crystal clear that the learned tribunal has rightly negated the plea of the appellant- insurer which calls for no interference inasmuch as the learned counsel for the appellant could not produce any materials contrary to the aforesaid observation and this Court does not want to disturb such finding of the learned trial Court in absence of any materials or evidence on record. Accordingly, the plea of the appellant-insurer is negated. In view of the aforesaid discussion and taking into consideration the entire materials placed on record including the evidence on record, this Court considers it in the interest of justice to direct the appellant-insurer to pay the modified compensation amount of Rs. MACA No.1126 of 2023 Page 9 of 10 13,78,272/- along with interest 6 % per annum within 60 days from the date of filing of the claim application. 7. In the result, the claim appeal is allowed in part on contest, but in the circumstance, there is no order as to costs. The impugned award of compensation is modified to the extent of Rs. 13,78,272/- together with simple interest @ 6% w.e.f. 27.10.2017 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 to the claimants 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: 15-Jan-2025 18:41:15 Orissa High Court, Cuttack, Dated the 13th day of January, 2025/Priyajit MACA No.1126 of 2023 Page 10 of 10