ORISSA STATE ELECTRICITY BOARD v. USHARANI PARIDA — 1991 DIGILAW 269 (ORI)

JUDGMENT : S.C. Mohapatra, J. - This is an appeal u/s 110-D of the Motor Vehicles Act, 1939, by the owner of the vehicle. There is no cross-objection. 2. Undisputedly, the truck No. ORL 418 belongs to the appellant. Case of the Claimants is that on 5.10.1984 at 2 a.m. in the night, statute of Goddess Durga, a Hindu deity, was being carried in the truck for immersion in Badanadi of Aska. Deceased who is an employee of the appellant along with others was following the truck. At that time, the truck had to be moved back to negotiate a turning. Deceased who was behind the truck was hit by it and sustained fatal injuries. Claimants who are widow and four minor children of the deceased aged 40 years at the time of death, have Claimed compensation of Rs. 1,30,000/-. 3. Appellant contested the Claim alleging that there was no rash and negligent driving on the part of the driver and the Claim amount is excessive. 4. Appreciating evidence of both the parties Tribunal has found that accident was on account of rash and negligent driving of the vehicle. It awarded compensation of Rs. 1,30,000/- with interest. This is being assailed by the appellant. 5. OPW 1, the driver, has clearly admitted that to take a turn near Banivihar the vehicle had to be moved backward. While moving the truck backward, there was accident. It is not in dispute that there were many persons who were following the truck. The driver of the vehicle ought to have been very careful while backing the vehicle. Although the driver stated that he blew horn, in such crowd going to immerse the idol, blowing of horn would not be sufficient care. Back side of the truck should have been made clear before the truck was moved back. There is no such evidence. In the circumstances of the case, there is clear material from which negligence of the driver can be inferred. I agree with the Tribunal that the accident was caused on account of the negligence of the driver. 6. Once the driver has caused the accident, he is primarily liable. Having permitted the driver to drive the vehicle and for use of the vehicle to carry idol of Goddess Durga for immersion, owner of the vehicle is also vicariously liable. I am not inclined to accept submission of Mr. 6. Once the driver has caused the accident, he is primarily liable. Having permitted the driver to drive the vehicle and for use of the vehicle to carry idol of Goddess Durga for immersion, owner of the vehicle is also vicariously liable. I am not inclined to accept submission of Mr. B.K. Naik, learned Counsel for the appellant, that owner of the vehicle would not be liable for the compensation. 7. Mr. Naik submitted that determination of just compensation by the Tribunal is much in excess. He relied upon the evidence of the widow of the deceased who is one of the Claimants that the monthly emolumnts of the deceased were Rs. 800/-. It is true that a certificate was produced which indicates that monthly emoluments of the deceased were Rs. 1,169/-. In the circumstances, take home pay can be found to be Rs. 800/-. Tribunal has held contribution of the deceased to the Claimants was Rs. 800/- per month. I am not able to accept the same. In absence of any definite material in that regard, I am inclined to hold that the monthly contribution was Rs. 500/-. Thus, the annual contribution comes to Rs. 6,000/- which is the loss of dependency of the family. Taking age of the deceased and number of Claimants and their age, multiplier of 14 adopted by the Tribunal is just. The loss of dependency comes to Rs. 84,000/-. Mr. Naik submitted that on account of future uncertainties and benefit of lump sum payment, 1/6th ought to be deducted from the same. In absence of any definite material, loss of company and mental pain can be equalized to l/6th of the compensation. In these circumstances, Claimants are entitled to compensation of Rs. 84,000/-. 8. Tribunal has awarded interest at the rate of 6 per cent incase payment is made within three months of the order passed on 16.8.1986 failing which the interest was directed to be 12 per cent per annum from the date of application till the date of payment. No payment has admittedly been made within three months till order of stay was obtained on 13.2.1987 much beyond the period fixed by the Claims Tribunal. In the circumstance Claimants shall be entitled to interest at the rate of 12 per cent per annum from the date of application till the date of payment. No payment has admittedly been made within three months till order of stay was obtained on 13.2.1987 much beyond the period fixed by the Claims Tribunal. In the circumstance Claimants shall be entitled to interest at the rate of 12 per cent per annum from the date of application till the date of payment. Deposit if made pursuant to order dated 28.3.1988 of this Court shall be taken into account while calculating the amount payable. 9. I find that widow was hardly 32 years in the year 1985. Children were all minor. Taking into consideration the same, I direct that out of the total amount payable including interest and costs as awarded by Tribunal, 90 per cent shall be invested jointly with provisions of either or survivor in profitable securities in any nationalised or rural bank to earn maximum interest for benefits of the Claimants which shall be paid annually to Claimants. Provisions shall be made so that the security shall in no manner be pledged or otherwise encumbered without order of the Tribunal. Tribunal, however, is directed to consider to release a portion of the amount if moved on being satisfied that such release is absolutely necessary for upkeep of the Claimants as and when application to that effect is made. Unless deposit is made as directed within two months from today, Tribunal shall take steps for coercive realisation of the amount from the appellant 10. In the result, appeal is allowed in part. There shall be no order as to costs in this appeal.