The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.1180 of 2023 M/s United India Insurance Company Limited, Cuttack …. Appellant Mr. S.K. Samantaray, Advocate -Versus- Mamata Barik & Others Respondents Mr. P.K. Mishra, Advocate …. And MACA No.1096 of 2023 Mamata Barik & Another
Legal Reasoning
Appellants Mr. P.K. Mishra, Advocate …. -Versus- Rajendra Sahu and Another Respondents Mr. S.K. Samantaray, Advocate …. CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 08.04.2024 Order No. 05. 1. Heard Mr. Mishra, learned counsel for claimants and Mr. Samantaray, learned counsel for the appellant Insurance Company. 2. Instant appeals are filed challenging the liability in order to cover the risk and quantum of compensation directed in MAC No.250 of 2019 with award dated 27th February, 2023 by learned Page 1 of 5 1st MACT-cum-District Judge, Dhenkanal on the grounds stated therein. 3. Mr. Samantaray, learned counsel for the Insurance Company submits that the involvement of the offending vehicle is in doubt and there is contributory negligence from the side of the rider of the motor-cycle and the sum which is allowed towards general damages is on the higher side. 4. Mr. Mishra, learned counsel for the claimants on the other hand submits that the accident is established and also the involvement of the offending vehicle, namely, Bolero and which led to the submission of chargesheet against its driver. As to the quantum of compensation, Mr. Mishra would further submit that the minimum wage of unskilled labour at the relevant point of time with income would have been Rs.8,589/- per month instead of Rs.6000/- and hence, therefore, compensation is accordingly to be enhanced. It is also claimed that the learned Tribunal did not allow any sum on future prospects @ 40%. 5. In for as the involvement of the offending vehicle is concerned, the filing of the chargesheet has established it prima facie. In course of hearing, copies of the FIR and others relevant papers including the chargesheet is filed for the Court’s perusal. It is not in dispute that the deceased and the injured were travelling in a motor-cycle at the time of accident. It is contended by Mr. Samantaray, learned counsel for the Insurance Company that three persons were travelling including the rider of the motor-cycle and there was a head-on collision with the Bolero vehicle, hence, Page 2 of 5 therefore, even though the accident is believed, there was contributory negligence revealed. In reply and response to the above, Mr. Mishra, learned counsel for the claimants submits that it is not a case of head-on collision rather the offending vehicle dashed the motor-cycle from back side. In fact, one of the injured examined as P.W.3 claimed about the accident being hit by the offending Bolero vehicle from back. To counter the same, Mr. Samantaray, learned counsel for the Insurance Company refers to statements of one Prafulla Kumar Rana, Pitabasa Sahu and Babuli Mohapatra recorded under Section 161 Cr.P.C. to satisfy the Court that the motor-cycle had a front collision with the offending vehicle. The copies of the statements of the said witnesses under Section 161 Cr.P.C. are produced today in Court and the same are perused. Though, Mr. Samantaray placed reliance on the statements of witnesses recorded under Section 161 Cr.P.C. but at the end, on closure investigation, it has led to the submission of chargesheet against the driver of the offending vehicle only without any contributory negligence attributed to the deceased rider of the motor-cycle. No rebuttal evidence was adduced from the side of the Insurance Company, if at all, such was the case with reference to the evidence collected during investigation. Mr. Mishra, learned counsel for the claimants submits that the named witnesses referred to above are not the occurrence witnesses. In any view of the matter, due to like of evidence from the side of Insurance Company on the said aspect, the Court reaches at an inescapable conclusion that the offending vehicle’s driver to be responsible for the alleged accident not the rider of the motor-cycle and there is no contributory negligence as such which is claimed. Mr. Samantary, Page 3 of 5 learned counsel for the Insurance Company further submits that the amount on the head of general damages should have been Rs.70,000/- instead Rs.2,77,000/-. Admittedly, such an amount is allowed by learned Tribunal which in the humble view of the Court being in agreement with Mr. Samantaray, learned counsel for the Insurance Company should be fixed at Rs.77,000/- inclusive of increment every 3rd years @ 10%. With the findings arrived at as above and monthly income of the deceased assessed at Rs.8,589/- instead of Rs.6000/- with the additional amount on future prospects @ 40% and deduction of 50% towards personal expenses and added sum of Rs.77,000/- towards general damages, the compensation is thus arrived at Rs.13,75,656/- which is payable to the claimants @ 6% per annum instead of 7%. In other words, the Court is inclined and in favour of enhancing the compensation from Rs.8,58,000/- to Rs.13,75,656/-. 6. In fact, Mr. Samantaray, learned counsel for the Insurance Company would submit that the general damages allowed by learned Tribunal is on the higher side. To the contrary, Mr. Mishra, learned counsel for the claimants would submit that future prospects it to be added to the compensation with an income assessed so determined by learned Tribunal. Considering the submissions of learned counsel for the respective parties, the Court is inclined to reduce the sum on the head of general damages to Rs.77,000/- instead of Rs.2,10,000/-, hence, with the discussion as aforesaid, the compensation amount stands at Rs. 13,75,656/- payable @ 6% per annum. 7. Hence, it is ordered. Page 4 of 5 8. In the result, the appeals stand disposed of. Consequently, the impugned award in MAC No.250 of 2019 dated 27th February, 2023 by the learned 1st MACT-cum-District Judge, Dhenkanal is hereby modified to the extent as aforesaid with a direction it to deposit sum of Rs. 13,75,656/- along with interest @ 6%per annum from the date of claim application filed i.e. 24th December, 2019 within eight weeks from today which shall thereafter be disbursed in favour of the claimants. The Court directs that the statutory deposit along with accrued interest shall be refunded to the Insurance Company soon after proof of deposit of compensation and its disbarment in favour of claimants. 9. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 10-Apr-2024 10:35:30 Page 5 of 5