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2016 DIGILAW 205 (ORI)

National insurance Company Ltd. v. Lakshmi @ Nachhama Naik

2016-03-15

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. On perusal of record, it appears that respondent No.4 was set exparte in the Court below. In this appeal, even though notice was issued, there is no appearance on behalf of the respondent No.4 as on date. Further the respondent No.4 was also set exparte in the court below. Thus, this matter is decided only after hearing the rest of the parties. This MACA arises out of an award passed by the Additional District Judge-cum-3rd MACT, Talcher in M.A.C. Case No.60 of 2012 vide judgment dated 17.5.2014. 2. Facts as involved in the case is that on 09.6.2012 at about 7 A.M while the deceased-Danda @ Dandadhat Naik was going from his village-Ekadal towards NTPC by his bicycle near Rutubhuin Siva Temple, a TATA Truck bearing Registration No.OR-19 D-2736 came from the backside of the deceased and dashed against the bicycle of the deceased, as a result of which, the deceased sustained multiple fracture and bleeding injury on his person. He was shifted to NTPC hospital, Kaniha and then referred to District Headquarters Hospital, Angul. While undergoing treatment at Angul District Headquarters Hospital, the deceased succumbed to the injuries. The deceased passed away leaving behind his wife, a daughter and old mother. The wife, minor daughter and old mother filed the Claim Case making a claim of Rs.13,40,000/-towards compensation, loss of dependency and other deprivation sustained by them on account of the accidental death of the deceased. 3. To substantiate their case, the claimants-respondents examined altogether three witnesses as P.Ws.1 to 3 on their behalf and relied on material documents under Exts.1 to 10. The Opp.party-Insurance Company neither filed any document nor led any evidence in the trial. 4. Considering the pleadings, evidence, exhibited documents and contentions of the rival parties, the trial court taking into consideration the issues framed therein, passed the following order; “The M A C is allowed on contest against the O.P.No.2 and exparte against the O.P.No.1 with cost of Rs.500/-. O.P.No.2 (National Insurance Company Ltd) is directed to pay the entire compensation amount of Rs.7,78,000/-(Rupees Seven Lakh Seventy Eight Thousand ) only along with interest @ 6% per annum from the date of filing of the claim application i.e. 07.09.2012 together with the cost to the petitioners within one month hence failing which right will accrue to the petitioners to realize the same from O.P.No.2 in accordance with law. In case of payment is made, the same shall be disbursed to the petitioners in the following manner. Out of the compensation amount, a sum of Rs.2,00,000/-(Rupees Two Lakh) in the name of petitioner No.1 (Lakshmi @ Lachhama Naik) and another sum of Rs.2,00,000/-(Rupees Two Lakh) in the name of petitioner No.2,Manasi Naik through her mother guardian(petitioner No.1) and a cash of Rs.1,00,000/-(Rupees One Lakh) in the name of Bari Naik (Petitioner No.3) shall be deposited in any Nationalised Bank for a period of six years with quarterly interest payable and out of the balance amount, a sum of Rs.78000/-(Rupees Seventy Thousand )shall be disbursed to the petitioner No.3(Bari Naik) and the rest amount for Rs.2,00,000/-(Rupees Two Lakh) along with interest accrued on it and the cost shall be disbursed to the petitioner No.1(Lakshmi @ Lachhaman Naik)in shape of cash. The concerned bank shall not allow any loan or advance on the fixed deposit treating the same as security and it shall not allow any premature withdrawal without the leave of the court.” 5. In assailing the impugned order, Mr.Padhi, learned Senior counsel for the appellant contended that even though the claimants put-forth a pleading that the deceased was a carpenter and was earning a sum of Rs.9000/-(Nine Thousand) per month but the claimants failed to produce any material evidence as to the earning of the deceased at the relevant point of time. Taking into consideration the minimum prescribed wage of a semi-skilled person in the year 2012, the salary of the deceased under any circumstance shall be less than Rs.200/-per day and consequently the calculation of salary of the deceased is not properly considered. Mr. Padhi, learned Senior counsel for the appellant thus requested the Court for interfering in the matter at least relating to the earning of the deceased and thereby to reduce the compensation granted by the Claims Tribunal. 6. Mr. Nayak, learned counsel appearing the claimants on the other hand contended that since the deceased was a carpenter working on private capacity, there was no possibility on his part to collect material evidence except substantiating his claim by way of oral evidence and they have been able to justify their claim on the earning of the deceased by throwing sufficient oral evidence and thus contended that there is no illegality in the assessment made by the trial court. 7. 7. Heard the submissions of learned counsel for the respective parties. Perused the pleadings of the parties as well as the evidence so recorded from the side of claimants by the trial court, this Court finds that there is absolutely no material as to the claim of the claimants on the income of the deceased @ Rs.200/-per day. But however considering the minimum wage of a skilled worker at the relevant point of time and looking to the admission of the position that the deceased was admittedly a carpenter and as no rebuttal from the other side, this Court feels it appropriate to settle the income of the deceased at the relevant point of time @ Rs.175/-per day. 8. Consequently deciding the income of the deceased Rs.5250/-per month and on deducting the personal expenses at least @Rs.2000/-per month, the income of the deceased becomes Rs.39, 000/-per annum. 9. Considering the age of the deceased, the multiplier ‘16’ is applied. So the total future loss of dependency comes to Rs.6,24,000/-.With the above, a sum of Rs.10, 000/-is to be added towards funeral expenses, loss of estate and consortium. Thus, in total, the respondent Nos. 1 to 3 are entitled to Rs.6, 34,000/-carrying interest @ 6% all through. Further considering the terms fixed by the trial court and looking to the age of the minor child, the trial court is directed to ensure deposit of a sum of Rs.3, 00,000/-(Rupees Three Lakhs) in the name of the minor daughter-Manasi Naik through her mother guardian-Lakshmi @ Nachhama Naik at least till her attaining the majority and to benefit her only and the balance amount be refunded to the respondents. The amount calculated as above, be released in terms of the direction herein above within a period of six weeks hence. 10. MACA succeeds to the extent indicated herein above and there shall be no order as to cost.