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2019 DIGILAW 43 (ORI)

Sulachana Jena v. Antaryami Pani

2019-01-17

K.R.MOHAPATRA

body2019
JUDGMENT : K.R. Mohapatra, J. Heard Mr. Rath, learned counsel for the Appellants and Mrs. Pati, learned counsel appearing for respondent No.2-Insurance Company. 2. The instant Appeal under section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') has been preferred assailing judgment and award dated 27.07.2000 passed by learned 2nd Motor Accident Claims Tribunal, Cuttack in Misc. Case No.282 of 1989 dismissing the Claim Petition under Section 166 of the Act. 3. On 01.02.1989 at about 11.00 AM, when the deceased, namely, Bajia Jena along with others were travelling in a truck bearing registration No.ORU 863, from Berhampura side towards Bank, it met with an accident, as a result of which the deceased succumbed to the injuries. Accordingly, his legal heirs filed Claim Petition under Section 166 of the Act claiming compensation of Rs. 1.00 lakh. Owner of the offending vehicle though received notice but did not choose to appear and was set ex parte. Respondent-Insurance Company filed written statement denying its liability to pay compensation. 4. Learned Tribunal, on the sole ground that there was no evidence on record to show that the truck (offending vehicle) was being plied on the date of the alleged accident under a contract of employment for transportation of band party instruments, and the deceased was travelling as the employee representative of the goods of the owner, rejected the claim. Accordingly, this appeal has been filed. 5. Upon hearing learned counsel for the parties and on perusal of record, it appears that the ground on which the claim petition was rejected is not sustainable in the eyes of law, inasmuch as, the claimants need not prove the fact that the offending vehicle was being plied under a contract of employment to transport the goods. In that view of the matter, the matter ought to have been remanded to learned Tribunal for fresh adjudication. Since the accident occurred on 01.02.1989 and in the meantime more than 29 years have lapsed, I, without remitting it to learned Tribunal to adjudicate the claim petition, feel it proper to decide the same on the materials available on record. In absence of any material to the effect that the deceased was working in a band party team, his notional income is assessed at Rs. In absence of any material to the effect that the deceased was working in a band party team, his notional income is assessed at Rs. 15,000/- as per the 2nd Schedule of the Act and deducting 1/3rd towards his personal income, I assess the contribution to his family at Rs. 10,000/- per annum. Since the deceased was 28 years of age at the time of accident, applying multiplier of 17, I assess the compensation at Rs. 1.70 lakh. 6. Mrs. Pati, learned counsel for the claimants appellants relying on decisions of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. vs. Bommithi Subbhayamma and others, reported in 2005 ACJ 721 and a decision of this Court in the case of New India Assurance Co. Ltd. vs. Kanchan Bewa and others, reported in 1994 ACJ 138 submitted that the Insurance Company is not liable to pay the compensation, as the deceased was travelling in a goods vehicle as a gratuitous passenger. However, Mr. Rath, learned counsel for the claimants-appellants relied upon a decision of this Court in the case of Maguli Juanga and others vs. Dinabandhu Sahu and another, reported in 2016 (II) OLR 448, in which relying upon a case law of Hon'ble Supreme Court, this Court held that for speedy release of compensation in favour of claimants, the Insurance Company has to pay the compensation at the first instance and recover the same from the owner of the offending vehicle, where there is allegation of breach of policy condition. Mrs. Pati further raises objection alleging that since the claimants have claimed compensation of Rs. 1.00 lakh, it would not be appropriate to award any amount more than that. But in view of the settled position of law that a just compensation should be awarded irrespective of the claim made by the Claimants, I assess the compensation at Rs. 1.70 lakh. 7. In that view of the matter, this Court disposes of the appeal directing the Insurance Company to deposit the compensation of Rs.1.70 lakhs (rupees one lakh seventy thousand) with 6% interest per annum from the date of filing of application by the claimants before the Tribunal within a period of six weeks hence with a liberty to the Insurance Company to recover the same from the owner of the offending vehicle in accordance with law. 8. 8. On deposit of the aforesaid amount, the same shall be released in favour of the claimants on proper identification. 9. The Appeal is, accordingly, allowed.