The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.321 of 2024 M/s. Oriental Insurance Co. Ltd. ..... Appellant Mr. P.K. Mahali, Advocate Dillip Kumar Ray & Ors. -versus- ..... CORAM: Respondents Mr. S.K. Purohit, Advocate (Respondent Nos. 1 to 3) THE HON’BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 17.07.2025 I.A. No. 866 of 2024 Order No.07 1. This matter is taken up through hybrid mode. 2. Heard. 3. Perused the tracking report. Since notice has been duly served on Respondent No. 4(a), notice against the said Respondent is treated as sufficient. 4. Considering the grounds taken, delay in filing the appeal is condoned, subject to payment of cost of Rs.500/- to be paid before
Legal Reasoning
the Orissa High Court Bar Association Welfare Fund by 22nd July, 2025.
Decision
5. I.A. stands disposed of. (BIRAJA PRASANNA SATAPATHY) Judge 08. MACA Nos. 321 of 2024 & 1258 of 2023 1. Heard. 2. Since both the appeals arise out of a common judgment, both are heard analogously and disposed of by the present common order. Page 1 of 7. 3. While MACA No. 321 of 2024 has been filed by the Appellant- Insurer challenging Judgment dtd.20.10.2023 so passed by the 1st Addl. District Judge-cum-1st MACT, Cuttack in MAC Case No. 794 of 2013, MACA No. 1258 of 2023 has been filed by the Appellants- Claimants seeking enhancement of the award so passed vide judgment dtd.20.10.2023. Vide the judgment in question, the Tribunal allowed compensation to the tune of Rs.67,64,208/- along with interest @ 6% per annum payable from the date of filing of the claim application till its realization in favour of the Claimants. 4. Mr. P.K. Mahali, learned counsel appearing for the Appellant- Insurer in MACA No. 321 of 2024 while assailing the compensation so awarded, contended that the Tribunal without proper appreciation of the stand taken by the Appellant in its written statement assessed the compensation at a very higher side. 4.1. It is contended that since the alleged accident was never intimated by the owner of offending vehicle nor by the local Police, the same is a violation to the provisions contained under Sec. 133 and 158(6) of the M.V. Act, 1988. It is contended that since no such intimation was given either by the Owner or by the local Police, collusion in between the Claimant and the Owner of the offending vehicle cannot be ruled out to plant the offending vehicle. 4.2. It is also contended that while taking the monthly income of the deceased at Rs.34,449/- though reliance was placed to the salary certificates exhibited for the month of January, 2012 to May, 2012 under Ext. 11 to 15, but the Tribunal failed to appreciate the stand of the Appellant that allowances received by the deceased vary from month to month. Accordingly, it is contended that such allowances should not have been taken into consideration while assessing the Page 2 of 7. monthly income of the deceased at Rs.34,449/-. In support of such submission reliance was placed to a decision of the Apex Court in the case of Kalpanaraj & Ors. Vs. Tamilnadu State Transport Corporation (2015) 2 SCC 764. Hon’ble Apex Court in Para 7 of the said decision has held as follows:- “My view is that the deductions made by the tribunal from the salary such as recovery of housing loan, vehicle loan, festival advance and other deductions, if any, to the benefit of the estate of the deceased cannot be deducted while computing the net monthly earnings of the deceased. These advances or loans are part of his salary. So far as House Rent Allowance is concerned, it is beneficial to the entire family of the deceased during his tenure, but for his untimely death the claimants are deprived of such benefit which they would have enjoyed if the deceased is alive. On the other hand, allowances, like Travelling Allowance, allowance for newspapers/periodicals, telephone, servant, club-fee, car maintenance etc., by virtue of his vocation need not be included in the salary while computing the net earnings of the deceased.” 4.3. It is also contended that statutory deductions like professional tax, income tax, medical reimbursement, car and special allowances should have been deducted while assessing the monthly income. 4.4. It is also contended that the Tribunal committed a wrong by awarding future prospect @ 50% in place of 40%. 4.5. It is further contended that since father of the deceased is a retired teacher and pension holder and widow of the deceased got married after the death of the deceased, they cannot be treated as dependant. Accordingly, the Tribunal should have deducted 50% Page 3 of 7. towards personal expenses, instead of 1/3rd. The Tribunal also committed wrong by awarding 1,50,000/- towards general damages in places of Rs.70,000/-. 4.6. Making all these submissions learned counsel appearing for the Appellant-Insurer contended that the Tribunal if would have taken into consideration the stand taken in the written statement and followed the decision in the case of Sarla Verma & Ors. Vs. Delhi Transport Corp. & Anr. (2009 (6) SCC 121) as well as National Insurance Co. Ltd. Vs. Pranay Sethi (2017 (16) SCC 680), the compensation amount would have been assessed at a very lower side. Not only that the Tribunal also committed wrong by allowing default interest @ 12% per annum. It is accordingly contended that the impugned award needs interference of this Court. 5. Mr. S.K. Purohit, learned counsel appearing for the Claimants- Appellants in MACA No. 1258 of 2023 on the other hand while seeking enhancement of the compensation so awarded, contended that on the face of the salary certificates exhibited for the month of January, 2012 to May 2012 vide Ext. 11 to 15, the Tribunal while assessing the income, only relied on the pay slip for the month of April, 2012 vide Ext. 14. It is contended that in the salary slip exhibited for the month of January, 2012, the total monthly salary of the deceased was Rs.42,752/- with provident fund of Rs.2200/- and gratuity of Rs.881/-, in total Rs. 45,833/-. Evidence was also laid by P.W. 3 in support of such income of the deceased. 5.1. It is contended that the Tribunal also committed wrong by deducting contribution towards provident fund from the salary of the deceased. If such deduction towards statutory provident fund would not have been made while relying on Ext. 14, the monthly salary of Page 4 of 7. the deceased would have been calculated at Rs.36,502/- in place of Rs.34,449/-. 5.2. It is also contended that in the offer letter issued and exhibited vide Ext. 10, the deceased was offered with the appointment with monthly salary of Rs.45,833/-. But the Tribunal relying on Ext. 14, held the monthly income at Rs.34,449/- and that too by making deduction towards statutory provident fund and gratuity, which should have been added as monthly income. It is also contended that the rate of interest awarded @ 6% per annum is on the lower side. It is accordingly contended that the award so passed by the Tribunal needs substantial enhancement. In support of the submission reliance was placed to a decision of the Apex Court in the case of Meenakshi Vs. Oriental Insurance Co. Ltd. (Special Leave to Appeal (Civil) Diary No. 39746 of 2018, decided on 23.07.2024. The Apex Court in Para 9 of the said Judgment has held as follows:- “Recently in a judgment dated 11th July, 2024 in National Insurance Company Ltd. V. Nalini and Ors. [Petition for Special Leave to Appeal (C) No. 4230/2019], this Court held that, allowances under the heads of transport allowance, house rent allowance, provident fund loan, provident fund and special allowance ought to be added while considering the basic salary of the victim/deceased to arrive at the dependency factor.” 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that the claim application was filed by the Appellants in MACA No. 1258 of 2023 in MAC Case No. 794 of 2013, claiming grant of compensation with regard to the road accident caused by the offending vehicle on 03.05.2012. Page 5 of 7. 6.1. Basing on the materials placed and the evidence available, the Tribunal assessed the monthly income of the deceased at Rs.34,449/-. It is also found that the Tribunal allowed compensation towards future prospect @ 50% in place of 40% and also allowed compensation on different heads. 6.2. Considering the submission and the stand taken in both the appeals, though an attempt was made to settle the dispute, but the Appellants-Claimants in MACA No. 1258 of 2023 since insisted that the award needs substantial enhancement, this Court taking into account the stand taken by the Insurer and the Claimants, is of the view that the matter requires a fresh adjudication by the Tribunal. 6.3. It is also the view of this Court that the award of compensation towards future prospect @ 50% is not permissible. Not only that the Tribunal has also not appreciated the dependency factor and whether father and wife of the deceased can be taken as dependent while assessing the compensation. It is also found that the Tribunal while assessing the monthly income at Rs.34,449/-, has not appreciated the decision relied on by the learned counsel appearing for the Insurer with regard to the deductions to be made while assessing the monthly salary of the deceased. 6.4. Not only that the Tribunal on the face of the salary certificates exhibited vide Ext. 11 to 15, could not have relied on Ext. 14 only while assessing the monthly income of the deceased. In that view of the matter, this Court is inclined to quash the impugned judgment dtd.29.10.2023 and remits the matter to the Tribunal for fresh disposal by giving due opportunity of hearing to all concerned. Page 6 of 7. 6.5. Since the case is of the year 2012, this Court directs the Tribunal to take all possible step and dispose of the claim application by the end of this year. 6.6. Appellant in MACA No. 321 of 2024 is permitted to take refund of the statutory deposit along with accrued interest on proper identification. 7. Both the appeals are accordingly disposed of. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jul-2025 14:29:58 Page 7 of 7.