Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 341 (ORI)

Divisional Manager, M/s. New India Assurance Co. Ltd. v. Jemamani Naik

2015-05-15

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. This is an appeal Under Section 173 of the Motor Vehicle Act, 1988 filed by the Divisional Manager, New India Assurance Company. Ltd. challenging the judgment dated 26.4.2014 passed by the learned First Additional District Judge-cum-III rd. M.A.C.T, Rourkela in MAC Case No.91 of 2012 filed by the claimants claiming to be the wife and children of one late Sagar Nayak. 2. Facts involved in the matter as revealed from the M.A.C. Case No.91 of 2012 is that the claimants who are respondents here filed the Claim Application Under Section 166 of the M.V.Act claiming compensation and damages for the death of the husband of respondent No.1 and father of rest of the respondents on 04.6.2012 in a road accident caused by a Tipper bearing Registration No.0R14 S 0108.The case of the respondents is that on 04.6.2012 at about 11 A.M when the deceased with his wife were coming towards their house at village-Kamanda in a motor cycle bearing Registration No.0R14 Q 5916 near BTA Iron Mines Gate, a Tipper bearing Registration No.0R14 S 0108 driven rashly and negligently came all on a sudden out of the Mines gate and dashed the deceased-husband and wife. The deceased-husband died at the spot. The deceased was an employee of SAIL under R.M. Division and was posted at Barsuan Iron Mines. The deceased-husband was drawing a monthly salary of Rs.56, 000/-(Fifty-six Thousand) besides his perks as an employee of the SAIL. It is under these premises the claimant-respondents had claimed appropriate compensation for the loss of life of the deceased. 3. Though the present appellant i.e. the Opp. party No.2 in the trial court contested the matter but the respondent No.7 who was Opp. party No.1 in the trial court i.e. the owner of the offending vehicle chose to remain exparte. The present appellant contested the case raising the contention that there is a composite negligence in this case. As the collision of two vehicles occurred due to rash and negligent driving of the rider of the motor cycle and without insuring the motor cycle being made a party, the claim petition is not maintainable. The present appellant also disputed the age of the deceased as well as his monthly salary. The appellant also disputed the fact that the deceased had died out of the particular accident and alleged that his death had no connection with the accident. The present appellant also disputed the age of the deceased as well as his monthly salary. The appellant also disputed the fact that the deceased had died out of the particular accident and alleged that his death had no connection with the accident. Under these premises, the appellant had claimed for dismissal of the claim petition. 4. Upon framing of the issues, the matter was taken up for trial. The claimant-respondent Nos.1 to 6 examined two witnesses as P.W.Nos.1 and 2 whereas the present appellant examined none. Similarly when the present respondent Nos.1 to 6 produced as many as 11(eleven) documents including certified copies of F.I.R, Inquest report, P.M. report, Insurance Policy, Salary certificate/slip as well as Pan card, the present appellant as well as the owner of the offending vehicle preferred to file no document. 5. On completion of hearing, learned Tribunal/Trial Court considering all the materials available on record including the pleadings of the respective parties, observed that the accident occurred due to rash and negligent driving of the driver of the offending vehicle (Tipper) and coming to take a decision on the question of age of the deceased, considering the materials available on record, the learned Tribunal came to hold that the deceased was 51 years old at the time of accident as clearly appearing from Ext.11 and consequently applied “11” multiplier but at the same time refused to grant compensation on the head of future expectation as the remaining period of service of the deceased was only for seven years. Coming to decide on the question of salary of the deceased ,from the materials available on record, after deducting the Income Tax and Professional Tax, the learned Tribunal came to hold the salary of the deceased as Rs.53,981/-per month and after deducting personal expenses, the learned Tribunal concluded the contributing salary to the family to be Rs.35,987/-and thus applying “11” multiplier, granted Rs.47,50,254/-as loss of income. Besides the learned Tribunal also granted Rs.50,000/-towards loss of consortium, Rs.50,000/-towards loss of care and guidance for respondent Nos.3 to 6 and a sum of Rs.20,000/-towards cremation expenses. In this process, learned Tribunal granted a whole sum of compensation of Rs.48,70,284/-along with interest @ 6% per annum since the date of application till realization. Besides the learned Tribunal also granted Rs.50,000/-towards loss of consortium, Rs.50,000/-towards loss of care and guidance for respondent Nos.3 to 6 and a sum of Rs.20,000/-towards cremation expenses. In this process, learned Tribunal granted a whole sum of compensation of Rs.48,70,284/-along with interest @ 6% per annum since the date of application till realization. However concluding the judgment since the claim involved minors interest, the Tribunal also fixed modalities for distribution of compensation as detailed in the judgment dated 26.4.2014.Learned Tribunal also observed that in the event the claim amount will not be paid within two months from the date of judgment, the claim amount shall be charged with penal interest double to the decretal interest since the date of application till the date of realization. 6. The present appellant who was the Opp. party No.2 in the court below filed this appeal challenging the judgment dated 26.4.2014 in M.A.C. Case No.91 of 2012 on the ground that the findings of the learned Tribunal with regard to the income of the deceased is perverse being contrary to the documents available on record as well as against the settled principles of computing compensation. The Insurance Company also challenged to assail the aforesaid judgment particularly challenging the award passed by the learned Tribunal so far it relates to grant of interest double to the decretal interest in the event the awarded amount is not paid within two months. 7. During pendency of this appeal, the appellant also filed an application Under Order 41, Rule 27 of the Code of Civil Procedure claiming therein the T.D.S certificate concerning the deceased which is otherwise known as Annual Tax Statement Under Section 203(AA) of the Income Tax Act as additional evidence establishing the salary of the deceased at a lower rate than what has been claimed in the trial court. Heard the parties on the application U/Or.41, R.27, C.P.C. From the case record, this Court finds that the present appellant had contested the trial proceeding as Opp. party No.2 by filing written statement and taking all his pleas. Nothing prevented this appellant to bring any document in support of it during trial. Heard the parties on the application U/Or.41, R.27, C.P.C. From the case record, this Court finds that the present appellant had contested the trial proceeding as Opp. party No.2 by filing written statement and taking all his pleas. Nothing prevented this appellant to bring any document in support of it during trial. Besides, since a salary certificate has been filed at the instance of the claimants and proved, the said salary certificate appearing at Ext.8 without objection and since the salary certificate was issued by the employer of the deceased (a public sector undertaking), there is no reason to doubt such pay slip/certificate. The accident had taken place on 04.6.2012 and the claimants are suffering a lot for about last three years. The appellant has also no explanation as to inspite of due diligence it was not able to procure and produce such documents in the trial. Besides this Court also finds no much difference between the pay slip/salary certificate and the Form-26 AS filed by way of additional evidence and therefore this Court is not inclined to allow the application for additional evidence. 9. Now coming to decide the merit of the case, from the trial court judgment, this Court finds that the claimants have taken all possible steps in establishing their case by producing as many as eleven documents. Learned Tribunal has taken all care to scrutinize the documents filed by the claimants and considering the evidence led therein, has rightly come to the salary component in respect of the deceased. This Court also does not find any discrepancy in the impugned judgment so far it relates to the age of the deceased and the multiplier adopted by the trial court. It is at this stage learned counsels appearing for the parties submitted that the Appeal can be disposed of in the spirit of Lok Adalat by reducing the compensation awarded by the trial court and agreed for reduction in the whole compensation amount to Rs.42,00,000/- (Forty two Lakhs) as against Rs.48,70,284/-and interest component remaining same. It is at this stage learned counsels appearing for the parties submitted that the Appeal can be disposed of in the spirit of Lok Adalat by reducing the compensation awarded by the trial court and agreed for reduction in the whole compensation amount to Rs.42,00,000/- (Forty two Lakhs) as against Rs.48,70,284/-and interest component remaining same. Under the circumstances, without further delving into the matter, this Court decided to dispose of this appeal in the spirit of Lok Adalat by reducing the amount as agreed by both the parties to Rs.42,00,000/- (Forty two Lakhs) as against Rs.48,70,284/-alongwith interest @ 6% per annum from the date of filing of application till the date of award and since the awarded amount has not been paid to the claimants as on date, this Court further directs the appellant to pay interest @ 6% per annum from the date of filing the Application till the Judgment and interest @ 9% per annum for the period from the date of judgment passed by the learned Tribunal till its payment and this Court also permits right of recovery in favour of the appellant from the owner of the offending vehicle which amount also includes the compensation on the head of consortium as well as care and guidance. Similarly this Court also observes that from the whole compensation of Rs.42,00,000/- (Forty two lakhs) which includes Rs.50,000/- towards consortium, Rs.50,000/-towards deprivation, care and guidance and Rs.20,000/- towards cremation expenses, the respondent Nos.4 to 6 will get Rs.12,00,000/- (Twelve lakhs) each, out of which a sum of Rs.10,00,000/-(Ten lakhs) be deposited in favour of respondent No.4 in Fixed Deposit Scheme in any Nationalized Bank at least for a period of four years without any right of premature withdrawal, mortgage, pledging and rest amount of Rs.2,00,000/- (Two lakhs) be disbursed to him. So far as the amount of Rs.12,00,000/- (Twelve lakhs) each in favour of respondent Nos.5 and 6 be kept under Fixed Deposit till they attain majority without any right of premature withdrawal, mortgage and pledging. So far as respondent Nos.1 to 3 are concerned, each of them will be entitled to Rs.2,00,000/- (Two lakhs) each. The interest accumulated on Rs.42, 00,000/- (Forty two lakhs) till its release would be equally shared between the respondent Nos.1 to 6. The appeal succeeds to the extent indicated herein above and there shall be no order as to cost.