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Orissa High Court

Rojalini Nayak And Others vs Ajit Sahoo And Others on 24 April, 2023

Author: B.P. Routray

Bench: B.P. Routray

       IN THE HIGH COURT OF ORISSA AT CUTTACK

                       MACA No.1168 of 2016

(From the judgment dated 22nd August, 2016 passed by the learned 3rd
M.A.C.T., Jagatsinghpur in M.A.C. No.301 of 2010)

 Rojalini Nayak and others               ....              Appellants
                                      -versus-
 Ajit Sahoo and others                  ....             Respondents

Advocate(s) appeared in this case:-

          For Appellants       : Mr. D.K. Mohapatra, Advocate

          For Respondents      : Mr. P.K. Mahali, Advocate
                                 For Respondent No.2

                                 Mr. S. Satapathy, Advocate
                                 For Respondent No.4


            CORAM: JUSTICE B.P. ROUTRAY
                             JUDGMENT

24th April, 2023 B.P. Routray, J.

1. Heard Mr. D.K. Mohapatra, learned counsel for the Appellants- claimants, Mr. P.K. Mahali, learned counsel for Respondent No.2- Oriental Insurance Co. Ltd. and Mr. S. Satapathy, learned counsel for the Respondent No.4-New India Assurance Co. Ltd.

2. Present appeal by the Appellants-claimants is directed against the judgment dated 22.08.2016 of learned 3rd M.A.C.T., Jagatsinghpur MACA No.1168 of 2016 Page 1 of 6 in M.A.C. No.301 of 2010, wherein learned Tribunal has dismissed the claim application.

3. The deceased, namely, Bichitra Nayak @ Bagula was the Khalasi (Helper) of the Ambulance bearing Registration No.OR-4-J- 5604, who dashed against a parked Truck bearing Registration No. OR-13-4727 resulting death of the driver of the Ambulance as well as the deceased. The claimants being the wife, children and mother of the deceased filed the claim application under Section 166 of the M.V. Act.

4. The fact remains that after the accident, a sum of Rs.6,25,000/- has been received by the claimants from the owner of the Ambulance prior to filing of the claim application vide Cheque No.044395 dated 4.6.2010 and Cheque No.044299 dated 5.6.2010. Since it was initially disputed by the claimants, this Court vide order dated 01.03.2023 directed the claimants to file an affidavit specifically answering the same. An affidavit dated 18th April, 2023 has been filed by the claimants without answering specifically the receipt of amount from the employer, i.e. M/s.ESSAR STEEL ORISSA Ltd. (Respondent No.3). Though the claimants in their affidavit have stated to have received the amount from M/s.ESSAR STEEL ORISSA Ltd., but avoided to answer the exact sum specifically in terms of direction of this Court. A perusal of the affidavit and the averments made therein gives an inference in favour of the contention of Respondent No.3 that a sum of Rs.6,25,000/- has been received by the claimants towards compensation as averred in the written statement. It is to be noted here that the contention of Respondent No.3 before the Tribunal on this MACA No.1168 of 2016 Page 2 of 6 point is not denied by the claimants either through averments or evidence.

5. The accident is dated 4.6.2010. The involvement of the offending Ambulance as well as the Truck in the accident is not disputed at the Bar. The validity of the insurance in respect of both the vehicles is also not disputed. It is contended on behalf of the insurer of the Truck, i.e. Oriental Insurance Co. Ltd. that the driver of the Truck had no negligence for the accident and therefore, no compensation can be directed against him. The insurer of the offending Ambulance, i.e. New India Assurance Co. Ltd. contends that as the amount of compensation has already been received by the claimants pursuant to death of the deceased in the accident, no further compensation can be claimed by way of present claim application.

6. The claim application has been filed under Section 166 of the M.V. Act. As stated above, since everything is admitted except negligence aspect, either on the part of the Truck or the Ambulance, the only point remains to be decided is that, whether the finding of learned Tribunal to discard negligence on the part of driver of the Truck is justified ?

7. The learned Tribunal based on the pleadings of the claimants and finding of the Police in the investigation report concluded that the driver of the Ambulance was entirely negligent for the accident. The reason assigned by learned Tribunal in support of its conclusion is that, the Truck was in immobile condition and it's parking in a non-parking MACA No.1168 of 2016 Page 3 of 6 area, as contended by the parties, is not established on record by adequate evidence.

8. Admittedly the offending Truck was in parking condition at the time of accident and the accident took place in the early morning hour on N.H.-5A between Chandikhole and Paradeep. According to the pleadings of the claimants, the accident took place due to the negligence of the driver of the Truck and as per the evidence of P.W.1, the widow, it was the negligent act of the driver of the Truck. The evidence of P.W.2, the eye-witness, has been discarded by learned Tribunal on the ground that he did not turn up for re-examination on recall. Undoubtedly, the Police upon completion of investigation have submitted the charge-sheet against driver of the Ambulance, who died in the accident. It is not that materials are produced on record to justify that the Truck was parked in a safe place meant for parking of vehicles. Therefore the reason assigned by the Tribunal to exempt the driver of the Truck is not fully justified. Keeping all such circumstances in view and the evidences brought on record, in the opinion of this Court, contributory negligence is to be distributed between both the drivers of the Ambulance as well as the Truck. The same is determined in the share of 60:40 respectively. The main reason for such conclusion is that the Truck was parked on National Highway and the accident took place during early morning hour and no material has been produced to reveal that sufficient precaution was taken by the driver of the Truck while parking the vehicle on National Highway. This Court disapproves the approach of learned Tribunal in holding that the MACA No.1168 of 2016 Page 4 of 6 claimants cannot make any claim against the owner of the Ambulance for they have not pleaded against him.

9. Now the question comes on quantification of compensation amount. Before answering the same, receipt of Rs.6,25,000/- by the claimants from the owner of the Ambulance towards compensation must not be forgotten. In the opinion of this Court, the amount so received by the claimants which is towards compensation regarding death of the deceased in the accident is liable to be adjusted from total amount to be determined towards compensation.

10. The deceased was working as a Helper (Khalasi) in the Ambulance and according to the claimants, he was receiving Rs.5000/- per month. As per the averments made at paragraph 12 of the WS filed by M/s.ESSAR STEEL ORISSA Ltd., the deceased was receiving Rs.3675/- per month excluding food. As such, the contention of the claimants regarding receipt of Rs.5000/- per month by the deceased is justified. The deceased was aged about 36 years as on 1.1.2002 as per his Voter I-Card produced by Mr. Satapathy, learned counsel for Respondent No.4 in course of hearing. This is not disputed by the claimants. As such, his age on the date of accident is taken between 44 to 45 years, coming within the slab of 41-45 years. So the applicable multiplier is '14'. Adding future prospects to the extent of 25% and deducting 1/3rd towards personal expenses, the loss of dependency comes to Rs.7,00,000/-. Adding Rs.1,00,000/- towards loss of consortium for the widow and two children and Rs.30,000/- towards loss of estate and funeral expenses, the total compensation is determined at Rs.8,30,000/-.

MACA No.1168 of 2016 Page 5 of 6

11. As stated earlier, since receipt of compensation of Rs.6,25,000/- from the owner of the Ambulance has been established on record and accepted at the Bar, the same is adjusted from total compensation amount payable. It is also established that the same has been paid immediately after the accident and before filing of the claim application. Therefore, the balance amount of Rs.2,05,000/- is liable to be paid by both the insurers along with interest @6% per annum.

12. In the result, the appeal is disposed of with a direction to both the insurers, Respondent Nos.2 and 4 (Oriental Insurance Co. Ltd. and New India Assurance Co. Ltd.) to deposit their shares at the ratio of 40:60 respectively. Respondent No.2-Oriental Insurance Co. Ltd. is directed to deposit a sum of Rs.82,000/- and Respondent No.4-New India Assurance Co. Ltd. is directed to deposit a sum of Rs.1,23,000/-, along with interest @6% per annum from the date of filing of the claim application i.e. on 8.9.2010, within a period of two months from today. The amounts shall be disbursed in favour of the claimants on such terms and proportion to be decided by the Tribunal.

13. LCR be returned forthwith.

(B.P. Routray) Judge BASANTA Digitally by BASANTA signed KUMAR KUMAR BARIK Date: 2023.04.25 BARIK 19:21:29 +05'30' MACA No.1168 of 2016 Page 6 of 6