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2021 DIGILAW 137 (ORI)

Rani Samal v. Gadadhar Behera

2021-03-19

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - The Appeals bearing MACA Nos.358 & 359 of 2015 are at the instance of the Claimants for enhancement of compensation amount, whereas Appeals bearing MACA Nos.1075 & 1076 of 2015 are at the instance of the Insurance Company challenging liability and quantum as well. All the Appeals arise out of a common judgment involving death of two individuals arising out of one accident but entering into two independent claim cases. For the consent of learned counsel for the Parties and the commonness in the Appeals, the same are taken up together and disposed of by this common judgment. 2. Background involving the case is that the deceased persons involving all the Appeals faced accident by the offending Truck bearing Regn.No.OR-04-E-7707 alleged to have come in high speed being driven rashly and negligently dashed against both the deceased persons resulting in both the deceased sustained grievous injury on their persons and ultimately also succumbed to injuries. The legal heirs of both the deceased persons, as Claimants involving MACA Nos.358 & 359 of 2015 claimed compensation on the pretext of loss of their sole bread-earners, who were having Grocery business jointly and while they were having their morning walk met with an accident involving the offending Truck involved herein and resulted in their death. The Claimants claimed that deceased persons were earning Rs.10,000/- and Rs.15,000/- respectively. The Claimant involving the deceased, Fakir Charan Sethy filed MAC Case No.624/2011 and the Claimant involving Krushna Chandra Samal filed MAC Case No.625/2011. Both the Claimants claimed compensation of Rs.5.00 lakh each. It also reveals, involving the said accident there also involved a Police case bearing Paradeep Lock P.S. Case No.24/2009 under Sections 279/304(A) of the I.P.C. involving the offending Truck and the Driver involved therein. Upon notice, the Owner of the offending Truck did not appear involving both the cases, consequently the Owner in both the cases got ex parte but however the Insurance Company on its appearance resisted the claims having a common set of case. While denying the liability, the Insurance Company rather called upon the Claimants in both the cases to be put to strict proof of the averments in their respective claim petitions and in the premises, the Insurance Company claimed dismissal of both the cases. 3. While denying the liability, the Insurance Company rather called upon the Claimants in both the cases to be put to strict proof of the averments in their respective claim petitions and in the premises, the Insurance Company claimed dismissal of both the cases. 3. On the basis of pleading, the Tribunal framed the following issues :- "(I) Whether due to rash and negligent driving on the part of the driver of the offending vehicle bearing Regd. No.OR-04-E-7707, the accident took place resulting in the death of deceased Fakira Charan Sethy and Krushna Chandra Samal ? (II) Whether the respective petitioners in both the cases are entitled to get compensation, and if so, to what extent ? (III) Whether the common opposite parties or any of them are/is liable to pay compensation to the respective petitioners in both the cases ? (IV) What other relief(s), if any, the petitioners in both the cases are entitled to ?" 4. To substantiate their cases, Claimants examined P.Ws.1 to 3. Similarly Opposite Party No.2 therein examined one witness as D.W.1. Claimants exhibited Exts.1 to 12, whereas the Insurance Company exhibited Exts.A & B. Based on the evidence and the pleading of the Parties as well as the material disclosure through the Exhibits, the Tribunal in disposal of both the MAC Cases held all the findings in favour of the Claimants and as a consequence, while allowing the Cases on contest against Opposite Party No.2 and ex parte against Opposite Party No.1, the Tribunal directed the Insurance Company, Opposite Party No.2 therein to pay a sum of Rs.1,22,056/- and Rs.1,22,056/- in favour of the Claimants involving both the MAC Cases respectively in equal proportion along with interest @ 6% per annum in each case with effect from 21.9.2011 being the common date of filing of the claim petitions at least within a period of one month from the date of the judgment. 5. Assailing he impugned judgment, Mr.A.A.Khan, learned counsel for the Appellant, the Insurance Company involving MAC Case Nos.1075 & 1076 of 2015 advancing his submission contended that there was clear dispute at the instance of the Insurance Company, so far as Cover Note applied to be covering the accident for the claim of the Claimants. 5. Assailing he impugned judgment, Mr.A.A.Khan, learned counsel for the Appellant, the Insurance Company involving MAC Case Nos.1075 & 1076 of 2015 advancing his submission contended that there was clear dispute at the instance of the Insurance Company, so far as Cover Note applied to be covering the accident for the claim of the Claimants. It is in view of the serious allegation, taking this Court to the finding of the Tribunal on Issue No.II, III & IV dealing particularly with the Cover Note aspect, Mr. Khan, learned counsel for the Insurance Company contended that there is no proper consideration of the case on the applicability of the Insurance Policy involving the offending Truck and the accident involved herein. Taking this Court to the finding of the Truck on this score, the ground raised in the Memorandum of Appeals being common, Mr.Khan claimed, the impugned judgment becomes bad for non-consideration of the case of the Insurance Company therein. 6. Sri S.N.Kar, learned counsel for the Claimants, however, adverting to the finding of the Tribunal on Issue Nos.II, III & IV running over Paragraphs-8 & 9, particularly for the discussion in Paragraph-9, contended that while taking into consideration the allegation of the Insurance Company, particularly on the Cover Note, the Tribunal was pleased to provide opportunity to the Insurance Company to come forward with material disclosure to prove the claim of the Claimants on the basis of such Cover Note, it is claimed even in spite of opportunity, the Insurance Company did not able to establish its case, and therefore, the Tribunal had no other option than to accept the plea of the Claimants and allow the Appeals accordingly. In the above background, Sri Kar, learned counsel for the Claimants prayed for dismissal of the Appeals at the instance of the Insurance Company. 7. For the MAC Cases remaining ex parte against the Owner, the Owner had no material to submit. In the case at hand, the Owner is represented by Sri B.C.Ghadei, learned counsel. However, learned counsel for the Owner attempted to support the stand of the Insurance Company. 8. 7. For the MAC Cases remaining ex parte against the Owner, the Owner had no material to submit. In the case at hand, the Owner is represented by Sri B.C.Ghadei, learned counsel. However, learned counsel for the Owner attempted to support the stand of the Insurance Company. 8. Considering the rival contentions of the Parties, this Court finds, the sole allegation at the instance of the Insurance Company in challenge to the impugned judgment involved herein on the acceptability of the Cover Note relied upon by the Claimants to support their case on the compensation being paid by the Insurance Company. On this aspect, this Court finds, the Tribunal has taken up such dispute through Issue Nos.II, III & IV. While taking care of the plea of respective Parties, the Tribunal in clear term recorded to have provided an opportunity to the Insurance Company to come forward with material disclosure to establish its case that there is no coverage of the Cover Note to the case at hand and has also a clear finding that in spite of providing opportunity, the Insurance Company did not produce any material. It is, therefore, on the basis of claim of the Claimants being supported not only by production of Cover Note but also a money receipt on purchase of such Policy and Driver not coming forward to either support or oppose further in absence of any material by the Insurance Company at least to establish the Cover Note has no application to the case at hand, this Court finds, the Tribunal had no other option than to accept the plea of the Claimants. Both the Appeals at the instance of the Insurance Company have no merit to be entertained and in the circumstance, this Court finds, MACA Nos.1075 & 1076 of 2015 involving the Insurance Company, Opposite Party No.2 therein, the present Appellant, stand dismissed. 9. Now coming to consider the Claimants' Appeals involving MACA Nos.358 & 359 of 2015 on the aspect of enhancement of compensation involving the very same judgment, this Court finds, the Claimants had a clear plea that both the deceased persons were running grocery business and further the Claimants had also a clear case that both were earning Rs.10,000/- and Rs.15,000/- respectively at the relevant point of time. The case of the Claimants is based on oral evidence and there is no material evidence to support their claim. The case of the Claimants is based on oral evidence and there is no material evidence to support their claim. Sri Kar, learned counsel appearing for the Claimants taking to the minimum income of an individual in the year 2009 involving the accident contended that for the decisions of the Hon'ble Supreme Court, the notional income observing it cannot be less than Rs.3000/- per month should be the basis and it is in this view of the matter, Sri Kar, learned counsel for the Claimants, contended that the calculation of wage involving the deceased persons @ Rs.2000/- per month becomes bad. Mr.Khan, learned counsel for the Insurance Company, however, has no dispute to the fixation of notional income in the year 2009 by the Hon'ble Supreme Court. 10. Considering the rival contentions of the Parties and taking into consideration the fixation of notional income by the Hon'ble Supreme Court at the minimum of Rs.3000/- per month and the minimum wages prevailing at the relevant point of time, this Court finds, the Tribunal went wrong in taking the wages factor at Rs.2,000/- per month in respect of both the deceased persons. It is in this view only, this Court interferes with the impugned judgment, so far it relates to the amount of compensation vis- -vis the wages being earned by the deceased persons at the relevant point of time, This Court accordingly remits the matter to the Additional District Judge-cum-4th MACT, Cuttack for re-calculation of compensation taking into account the wages earned by both the deceased persons at the relevant point of time, i.e., @ Rs.3000/- involving all the Parties herein. Let a fresh award be passed only on the aspect of compensation involving both the deceased persons. For the limited remand of MAC Case No.624 of 2011/267 of 2013 and MAC Case No.625 of 2011/268 of 2013, this Court directs the Insurance Company to deposit the compensation already awarded within six weeks for release of the same in favour of both the Claimants, which will however be subject to further grant of additional amount to the Claimants after undertaking the fresh exercise of calculation following the direction herein above. Upon re-calculation being made, the balance/additional amount shall also carry interest @ 6% per annum from the date of accident with effective from 21.9.2011 till the amount is deposited at least within one and half months from the date of judgment on re-computation of compensation. 11. With this observation and direction, MACA Nos.358 & 359 of 2015 stand allowed. L.C.R. be returned to the Court below immediately. No cost.