Orissa High Court
Smt. Rebati Mohanty vs Minati Das & on 19 September, 2024
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA NO.671 OF 2019
An application under Section 173 of M.C. Act
Smt. Rebati Mohanty .... Appellants
& Others
-versus-
Minati Das & .... Respondents
Another
For Appellants :M/s. B. Singh, T.K. Dash,
S.K. Bose,Adv.
For Respondents :M/s. S.K. Mohanty,
Biswaroopa Pati, Adv.
(for Respondent No.2)
PRESENT:
THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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Date of Hearing : 19.09.2024 and Date of Judgment: 19.09.2024
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Biraja Prasanna Satapathy, J.
1. This matter is taken up through hybrid mode.
2. Heard learned counsel appearing for the parties.
3. The present appeal has been filed challenging the impugned judgment dt.22.06.2019 so passed by the learned IIIrd M.A.C.T Balasore in M.A.C. Case No.344 of 2017.
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4. Learned counsel for the Claimants-Appellants contended that the deceased was the driver in a bus bearing Regd. No.OR- 11-G-0095. It is contended that on 14.06.2017, the deceased driver while driving the bus with a normal speed behind a truck bearing Registration No.OR-09F-2553. The driver of the offending Truck since applied sudden break and stopped the truck in the middle of the road, the bus dashed against the back side of the Truck, even though the deceased driver applied sudden break.
4.1. It is contended that because of such accident which took place on 14.06.2017, the deceased died at the spot. The matter on being referred, Simulia P.S.Case No.161 of 2017 was registered.
4.2. Learned counsel for the Appellants-Claimants contended that in the aforesaid Simulia P.S. Case No.161 of 2017, the I.O after conducting the investigation, submitted the Final Form against the Driver of the offending Truck, Sk. Mohd. @Niamat@Niyamat under Sections 279/ 337/ 338/ 304 of the Indian Penal Code.
4.3. The I.O after conducting investigation also came to a conclusion that the deceased driver of the bus while proceeding towards Balasore from Cuttack on N.H.-5 on 14.06.2017, the offending Truck bearing Regd. No.OR-09F- 2553 was going ahead. As the offending Truck applied sudden break, the deceased driver lost control over the bus and dashed Page 2 of 10 // 3 // behind the Truck. Because of such nature of accident, the right side of the bus got damaged and the deceased died due to severe bleeding injuries sustained on his head. Even though he was shifted to District Headquarter Hospital, Bhadrak, but he was declared dead. The I.O also found that some of the bus passengers sustained injuries on their person because of the accident.
4.4. Learned counsel appearing for the Appellants-Claimants contended that on the face of the Final Form submitted in the case in question which was duly exhibited as Ext.2 and the evidence led by P.W.s 1 & 2 in support of the claim, the Tribunal though came to a finding that the deceased died due to the accident in question, but by holding that the deceased is negligent for causing such accident to the extent of 70%, while assessing the compensation at Rs.7,42,000/-, allowed compensation to the tune of Rs.2,22,600/- with interest @7.5% per annum payable from the date of application till its realisation.
4.5. Learned counsel for the Appellants-Claimants contended that on the face of the report submitted by the I.O vide Ext.2 and the evidence led by the Appellants-Claimants through P.W.1 & P.W.2, holding the deceased driver negligent to the extent of 70% is not tenable in the eye of law.
4.6. In support of such submission, learned counsel for the Claimants-Appellants relied on a decision of the Hon'ble Apex Page 3 of 10 // 4 // Court in the case of Meera Devi and Others Vs. H.R.T.C and Others, decided on 10.03.2014 in Civil Appeal No.5764 of 2008. Hon'ble Apex Court in Para 10 of the said judgment has held as follows:
"10. To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterists. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in facts and circumstances of the case.
4.7. Similarly reliance was also placed to a decision of the Hon'ble Apex Court in the case of Jeyarani and Another and Vs. Manager, Bajaj Allianze General Insurance Company Limited and Another 2023 (3) T.A.C 357 (S.C). Hon'ble Apex Court in Paragraph-3 & 4 of the said judgment has held as follows:
3. The only issues which arise for consideration in these appeals are with regard to the aspect of contributory negligence, and also the appropriate income to be taken for the purpose of calculation of the quantum of compensation to be awarded. On the aspect relating to contributory negligence though, the High Court had referred to the decisions/judgments of this Court, we also take note of the decision/judgment of this Court dated 08.01.2020 in Civil Appeal No.79/2020 wherein, the aspect which is under consideration in the instant appeals, was specifically dealt with, and has been held that there should be specific evidence with regard to negligence even if an additional pillion was being carried on the two-Page 4 of 10
// 5 // wheeler, which is the vehicle on which the deceased was travelling while the accident took place.
4. In that background, a perusal of the award in the instant case would indicate that P.W.2 was examined as an eye witness, and a finding has been rendered by the Tribunal that as per the evidence of the said eye witness (P.W.2), there is no negligence on the part of the rider of the two-wheeler. As against the same, there is no rebuttal evidence to indicate the negligence of the rider of the two-wheeler. Therefore, in that circumstance, the High Court could not have arrived at the conclusion that there was contributory negligence on the part of the rider of the two-wheeler. Hence, to that extent, the finding holding contributory negligence is set aside.
4.8. Learned counsel appearing for the Appellants-Claimants not only assailed the finding of the Tribunal with regard to holding the deceased driver negligent to the extent of 70%, but also contended that while assessing the compensation at Rs.7,42,000/- by taking the monthly income of the deceased driver at Rs.8,000/- per month, no compensation was awarded towards future prospect.
4.9. It is contended that had the Tribunal allowed future prospect, to the tune of 25%, which is admissible, the compensation amount would have been assessed at a higher side.
4.10.Making all these submissions, learned counsel for the appellants contended that the impugned judgment needs interference of this Court with regard to assessment of the compensation in not awarding compensation towards future Page 5 of 10 // 6 // prospect and in holding the deceased driver negligent to the extent of 70%.
5. Mr. S.K. Mohanty, learned counsel appearing for the Respondent No.2-Company on the other hand while supporting the impugned judgment contended that since the deceased was driving the bus in question and the bus dashed the offending Truck from behind, the Tribunal after due appreciation of the same, held the deceased driver of the bus negligent to the extent of 70%.
5.1 It is contended that since the deceased driver was driving the bus, it is also expected from him to drive the bus in a cautious manner and he should be blamed for causing the accident behind the truck. It is accordingly contended that negligent to the extent of 70%, has been rightly held against the deceased driver.
5.2. It is also contended that in support of the negligence of the deceased driver, evidence was led by the Respondent No.2- Company through O.P.W.1 i.e. the I.O of the case. It is accordingly contended that the impugned judgment has been rightly passed and it needs no interference.
5.3. In support of his submission, Mr. Mohanty, learned counsel appearing on behalf of Respondent No.3-Company relied on a decision of the Hon'ble Apex Court in the case of Nishan Singh & Others Vs. Oriental Insurance Company Page 6 of 10 // 7 // Ltd & Others, (2018) 6 Supreme Court Cases 765. Hon'ble Apex Court in Paragraph-11& 12 of the said judgment has held as follows:
"11. The moot question is whether the Tribunal committed any error in answering Issue 1 against the appellants and in favour of the respondents. The Tribunal, while answering the said Issue 1, analysed the evidence, both oral and documentary, including the charge-sheet filed by the appellants and observed thus:
"20. In site plan Paper No. 6-C/6 which is filed on record, the breadth of the road in question appears to be 14 ft and about 7 steps kachcha lekh appears at the both sides of the road. This fact is remarkable that the said accident is not of front accident but the accident occurred as a result of collision of the Maruti car on the rear part of the truck in question by the driver of the car in question and the same fact is also mentioned in the evidence of the petitioners. PW 2 Manjeet Singh, driver of the car in question as stated in his cross-examination that he was driving the car behind the truck at the distance of about 10-15 ft. Despite there being the breadth of the road 14 ft pucca, the driver of the car in question kept the vehicle only at the distance of 10-15 ft from the truck which does not appear in accordance with traffic rules. He should have driven the vehicle maintaining the proper distance in order to escape from each circumstance but he has admitted in his cross- examination as PW 2 that, 'he knows that he should maintain proper distance from the heavy vehicle'. Under such circumstance if the vehicle which is running behind the heavy vehicle, must maintain the proper distance if the proper distance is not maintained then the whole negligence shall be determined on the part of rear vehicle in regard to the occurrence of accident in question. In addition no evidence in regard to the seizing of truck in question on the place of occurrence and taking into police custody the vehicles from the place of occurrence Page 7 of 10 // 8 // and getting done their technical survey is not available on place of occurrence.
12. xxx xxx xxx The expression "sufficient distance" has not been defined in the Regulations or elsewhere. The thumb rule of sufficient distance is at least a safe distance of two to three seconds gap in ideal conditions to avert collision and to allow the following driver time to respond. The distance of 10-15 ft between the truck and Maruti car was certainly not a safe distance for which the driver of the Maruti car must take the blame. It must necessarily follow that the finding on the issue under consideration ought to be against the claimants."
xxx xxx xxx
6. Having heard learned counsel for the parties and considering the submission made, this Court finds that the deceased was the driver in a bus bearing Regd. No.OR-11-G- 0095. It is found that on 14.06.2017, the deceased was proceeding from Cuttack to Balasore while driving the bus in question. It is also found that the bus dashed from behind the offending Truck bearing Regd. No.OR-11G-0095. The I.O of the case while submitted the Final Form only charge-sheeted the driver of the offending Truck and no charge-sheet was filed by holding the deceased Driver having any role in causing the accident.
6.1. It is also found that P.Ws 1 & 2 in their evidence clearly submitted that the accident was caused because of the sudden break applied by the offending truck and the deceased driver was having no fault for causing such accident. No contrary Page 8 of 10 // 9 // view has been elicited from the mouth of P.W.s1 & 2 during their cross-examination by the Respondent No.2-Company.
6.2. In view of such analysis, this Court is of the view that finding of the Tribunal in holding the deceased driver negligent to the extent of 70% is not just and proper.
6.3. However, taking a pragmatic view of the matter and the fact that the deceased was driving the bus which dashed from behind the offending truck, this Court placing reliance on the decisions cited by the learned counsel appearing for the Appellants-Claimants and Respondent No.2-Company is inclined to held the deceased driver of the bus negligent to the extent of 30% in place of 70%.
6.4. It is also found from the record that while assessing the compensation at Rs.7,42,000/-, no compensation has been awarded towards future prospect.
6.5. In view of the aforesaid analysis, this Court is inclined to interfere with the impugned judgment. While interfering with the same, this Court is of the view that the Appellants- Claimants are eligible and entitled to get further compensation amount of Rs.7,00,000/- consolidated.
6.6. Learned counsel appearing for the appellants- claimants while supported the view of this Court, learned counsel appearing for the Respondent No.2-Company on the other hand left the same to the discretion of this Court.
Page 9 of 10// 10 // 6.7. This Court accordingly directs Respondent No.2- Company to deposit further compensation amount of Rs.7,00,000/- consolidated before the Tribunal within a period of 8 (eight) weeks from the date of receipt of this order. On such deposit of the amount, the Tribunal shall disburse the same in favour of the Claimants Appellants proportionately in terms of the judgment dt.22.06.2019.
6.8. However, if Respondent No.2-Company fails to deposit the amount within the period stipulated by this Court, further compensation amount of Rs.7,00,000/- consolidated shall carry interest @6% per annum payable from the date of expiry of the period of 8 (eight) weeks till the amount is so deposited.
The MACA is accordingly disposed of.
(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 19th September., 2024/sangita Signature Not Verified Digitally Signed Signed by: SANGITA PATRA Reason: authentication of order Location: HIgh court of orissa, cuttack Date: 26-Sep-2024 10:59:32 Page 10 of 10