Orissa High Court
New India Assurance Company Ltd vs P. Varahalu And Others (In Maca ... on 10 January, 2023
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.318 of 2020
MACA No.318 of 2020 & 804 of 2019
New India Assurance Company Ltd.,
through its Divisional Manager,
Giri Road, Berhampur, Ganjam (in MACA No.318/2020)
P. Varahalu and Another (in MACA No.804/2019)
.... Appellants
Mr. P.K. Mkishra (1), Advocate (in MACA No.318/2020)
Mr. H.P. Mohanty, Advocate (in MACA No.804/2019)
-versus-
P. Varahalu and Others (In MACA No.318/2020)
P. Nageswar Rao and Another (In MACA No.804/2019)
.... Respondents
Mr. H.P. Mohanty, counsel for Respondents 1 & 2
(in MACA No.318 of 2020)
Mr. P.K. Mkishra (1), counsel for Respondent No.2
(in MACA No.804 of 2019)
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
10.1.2023 Order No.
09. 1. The matters are taken up through hybrid mode.
2. Heard Mr. P.K. Mishra (1), learned counsel for the insurance company, i.e. New India Assurance Company Ltd. and Mr. H.P. Mohanty, learned counsel for the claimants.
3. Both the appeals being arise out of same common impugned judgment, are heard together and disposed of by this common order.
Page 1 of 44. Both the appeals are directed against the impugned common judgment dated 3rd August, 2019 of learned Member, 2nd MACT (Southern Division), Berhampur, Ganjam passed in MAC No.285 of 2014 (239/2013-GDC) and 54 of 2015 (240/2013-GDC). Present appeals are in respect of MAC No.285 of 2014 (239/2013-GDC), wherein compensation to the tune of Rs.7,97,560/- along with interest @ 7% per annum from the date of filing of the claim applications, i.e. 27th August, 2013 has been granted in favour of the claimants on account of death of the deceased P. Chiranjeevi in the motor vehicular accident dated 19th/20th August, 2012.
5. MACA No.318 of 2020 has been preferred by the insurance company challenging the award. MACA No.804 of 2019 has been filed by the claimants praying for enhancement of the compensation amount.
6. Mr. Mishra, learned counsel for the insurer while advancing his submissions challenges the judgment mainly on the ground that entire negligence should be fixed on the deceased who was the driver of his own truck and secondly, the assessment of income of the deceased is excess by Rs.5000/- per month.
7. Conversely, it is submitted by Mr. Mohanty, learned counsel for the claimants that the award amount needs to be enhanced by enhancing the income of the deceased as owner of the truck.
8. It is seen from the impugned judgment that the tribunal while determining negligence under Issue No.I has contributed 50% on the deceased as the driver of the truck bearing registration number AP 27W 5747. The facts are to the effect that, the deceased was the owner Page 2 of 4 of truck bearing No. AP 27W 5747 and driving the same at the time of accident, which dashed against the other truck bearing registration number AP 07TB 4446. According to the police investigation report, the truck bearing number AP 07 TB 4446 was standing on the road due to mechanical failure and the deceased while driving his truck collided the same from behind being driven in high speed. The accident resulted in death of the deceased who was the driver and injury to the helper. The injured - helper examined as P.W.2. While concluding on negligence aspect, the tribunal mainly relied on the investigation report submitted by police to accept the fact that the other truck was standing on the road at the time of accident and the deceased dashed it from behind. The tribunal accordingly fixed contributory negligence to the extent of 50% on the deceased. So, no reason appears there to interfere with the same and what is contended by Mr. Mishra to fix the entire negligence on the deceased is not found convincible. Undisputedly, the claimants do not challenge such finding of the tribunal in sharing the negligence in the ratio of 50:50 on both the deceased and the driver of the other truck.
9. With regard to quantum of compensation, the tribunal has assessed the income of the deceased at Rs.10,400/- per month on the basis that the deceased being the driver of his own truck, which is a ten wheeler truck, had income as a skilled labourer at Rs.180/- per day, equivalent to Rs.5400/- per month. Mr. Mishra learned counsel for the insurer disputes determination of Rs.5000/- per month earned from profit in the transport business of the truck of the deceased, whereas Mr. Mohanty prays to enhance the same to Rs.10,000/- per month. No plausible reason is seen in the contention of both the counsels, since no material has been produced with regard to income Page 3 of 4 of the deceased as the owner of the truck and at the same time income of the deceased from the truck as its owner cannot be denied at all. The tribunal has rightly proceeded in a balanced way to fix the income by guess work at Rs.5000/- per month towards earning of the deceased from the truck as its owner. Therefore, no reason is seen to disturb such finding of the tribunal.
10. The tribunal has further determined the final compensation amount by applying all settled principles of law including addition of future prospects and application of appropriate multiplier.
11. In the result, both the appeals are dismissed and the insurance company, i.e. New India Assurance Co. Ltd. is directed to deposit the entire compensation amount including interest as directed by the tribunal, within a period of two months from today; where-after the same shall be disbursed in favour of claimants on same terms and proportion as contained in the impugned judgment.
12. The statutory deposit made by the insurer before this court in MACA No.318 of 2020 along with accrued interest be refunded on proper application and on production of proof of deposit before the tribunal.
13. The copies of deposition of P.W.2 and other documents as produced by Mr. Mishra in course of hearing are kept on record.
14. An urgent certified copy of this order be issued as per rules.
( B.P. Routray) Judge M.K.Panda Page 4 of 4