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2021 DIGILAW 373 (ORI)

Sabitri Padhy v. Bhimasen Mahal

2021-08-26

BISWANATH RATH

body2021
JUDGMENT : BISWANATH RATH, J. 1. These are two Appeals; MACA No. 848/19 is at the instance of the Claimants for enhancement of the award involved and MACA No. 458/20 is at the instance of the Insurance Company challenging the quantum of compensation. 2. Background involving the case is that while the deceased was proceeding towards Purusottampur Market on the left side of the road by riding his bicycle at that time, the offending vehicle came from the side of Bhubaneswar towards Purusottampur at a breakneck speed driven in a rash and negligent manner suddenly dashed against the deceased from his back side resulting the deceased fell down on the road sustaining severe bleeding injury. He was immediately shifted to the Government Hospital, Nayagarh where he succumbed to his injuries. On the premises the deceased was 69 years of age and was getting pension at Rs. 10,333/- per month, as he was working as a Jeep Driver in the Office of Executive Engineer (Agriculture CAD Division) at Malkanagiri, the Claimant-Wife and the son of the deceased filing the claim application claimed appropriate compensation. 3. On their appearance, the Owner filed Written Statement stating that there was no cause of action for the Claimants to file the claim case and the vehicle in question was since duly insured by the Insurance Company, for the Driver in possession of valid and effective driving licence, the Owner claimed that he was not liable to pay compensation, as it becomes the responsibility of the Insurance Company for the coverage of the insurance policy. 4. The Insurance Company on its appearance filed its objection denying the allegations, inter-alia, contending that the Claimants are to prove their case by filing relevant documents. It further alleged that the offending vehicle was no way connected with the accident. Insurance Company contended that there is no contribution on the part of the Owner or the Insurance Company. A further plea is also taken by the Insurance Company that the Driver of the alleged offending vehicle was not holding a valid and affective driving licence at the time of alleged accident. On the above premises, the Insurance Company claimed that it is not liable to pay compensation, in the worst case it prayed for fixing liability on the Owner. 5. Based on the pleadings of the Parties, the Tribunal framed the following Issues: “(i) Whether the claim application is maintainable? On the above premises, the Insurance Company claimed that it is not liable to pay compensation, in the worst case it prayed for fixing liability on the Owner. 5. Based on the pleadings of the Parties, the Tribunal framed the following Issues: “(i) Whether the claim application is maintainable? (ii) Whether due to rash and/or negligent driving of the driver of the offending vehicle bearing registration no. OR-25-B-4277 the accident took place and in that accident the deceased, Jagannath Padhy succumbed to injuries? (iii) Whether the petitioners are entitled to get the compensation. If so, what would be the extent? (iv) Whether both the Opposite Parties or either of them is/are liable to pay the compensation? (v) To what relief(s), if any, the petitioners are entitled to?” 6. Based on the pleadings and the materials disclosed and submission advanced by the respective parties, the Tribunal ultimately finding the Issues in favour of the Claimants granted compensation of Rs. 4,83,320/- with simple interest @ 6% per annum from the date of filing of the claim application, i.e. 25.4.2016 to be paid within two months. The Tribunal also directed that in the event of failure of payment within two months, the Claimants will be entitled to interest @ 12% per annum after completion of two months from the date of award till the payment is made. The Tribunal in disposal of the Claim Application also adopted the sharing distribution, as recorded therein. 7. The Claimants in MACA No. 848/2019 in an attempt for enhancement of the award pleaded that even though the Tribunal has granted compensation looking to the income and age of the deceased, but however there has been no payment of compensation towards parential consortium to the child involved for losing his father. 8. Similarly the Insurance Company in MACA No. 458/2020 advanced their submission on three grounds. Firstly, the deceased was already 69 years of age, which has not been taken into account by the Insurance Company and contended that there is grant of high compensation. Ground No. 2 appears to be Claimant No. 1 was in receipt of Rs. 8000/- per month as family pension. It is thus contended that had the Tribunal taken into account this aspect, there would have been lesser compensation. Ground No. 3 appears to be Claimant No. 2 was since major at the time of accident, he was not entitled to any compensation. 8000/- per month as family pension. It is thus contended that had the Tribunal taken into account this aspect, there would have been lesser compensation. Ground No. 3 appears to be Claimant No. 2 was since major at the time of accident, he was not entitled to any compensation. Mr. S. Sarangi, learned counsel for the Insurance Company submitted that had the Tribunal taken into account the Claimant No. 2 attaining majority, the family contribution aspect on account of the deceased’s income would have been 50% rather than as assessed by the Tribunal at 2/3rd income of the deceased. 9. Considering the challenge to the common award involved herein by both the Parties, this Court first takes up the grounds of challenge by the Insurance Company. Reading the plea of the Insurance Company in the Tribunal and the statement made in Sub-Para 3 of the counter affidavit of the Insurance Company, this Court finds, the grounds raised herein so far as Ground Nos. 2 and 3 have not been raised at all. It is in this view of the matter, this Court finds, for there is no foundation in the objection of the Insurance Company before the Tribunal, the Tribunal has not been provided with an opportunity to take decision on such issue, these are surprised grounds in the present Appeal, which cannot be entertained. So far as Ground No. 1 is concerned involving the age of the deceased being 69 years at the time of accident, from the discussions on Issue Nos. III, IV and V, this Court here finds, based on the claim and counter claim on the age of the deceased by both the Parties, the Tribunal entering into threadbare discussion on the claim of both sides, referring to the decision of the Hon’ble apex Court in Sarala Verma and Others vs. Delhi Transport Corporation and Another, 2009 (2) TAC 677 (SC) has come to observe that minimum five multipliers can be applied and accordingly assessed the compensation taking into account five multipliers. In the circumstance and for the decision of the Tribunal having support of the decision of the Hon’ble apex Court, this Court finds, ground no. 1 taken here is not sustainable in the eye of law. In the circumstance and for the decision of the Tribunal having support of the decision of the Hon’ble apex Court, this Court finds, ground no. 1 taken here is not sustainable in the eye of law. Even assuming that the Insurance Company contested the trial on the ground on the aspect of Claimant No. 2’s attaining majority, therefore, he is not entitled to any compensation, this Court from the decision of the Hon’ble apex Court in National Insurance Company Ltd. vs. Birender and Others (Civil Appeal Nos. 242 and 243 of 2020) disposed of on 13th January, 2020 discussing on the same issue, Hon’ble apex Court in paragraph-15 has come to hold as follows:- “15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the facts whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between Rs. 1,00,000/- and Rs. 1,50,000/- per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.” For the legal position settled through the decision of the Hon’ble apex Court, the contention raised by Sri. Sarangi, learned counsel for the Insurance Company indicated herein above has no substance. This Court, therefore, finds, there is no merit in MACA No. 458/2020. 10. Now coming to the claim of the Claimants on the score of parential consortium, reading the entire judgment, this Court finds, there has been no grant of compensation on this head. Looking to the settled position of law on this aspect through the decision in Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Others, 2018 (4) TAC 345 (SC), this Court finds, the Claimants are justified on the claim of parential consortium of Rs. Looking to the settled position of law on this aspect through the decision in Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram and Others, 2018 (4) TAC 345 (SC), this Court finds, the Claimants are justified on the claim of parential consortium of Rs. 40,000/- to Claimant No. 2 at least and their such claim also gets support through the above decision of the Hon’ble apex Court. 11. For the support of the decision of the Hon’ble apex Court, this Court involving the Appeal by the Claimants modifies the award involved herein only with addition of payment Rs. 40,000/- (rupees forty thousand) to Claimant No. 2 towards parential consortium further also observing that Claimant No. 2 shall also be entitled to interest as awarded by the Tribunal on such compensation from the date of application. This Court also clarifies that on the default interest aspect, the Claimants will be entitled to 6% interest from the date of application on the awarded amount as well as modified awarded amount. The whole entitlement be deposited within a period of one and half months and released accordingly in favour of the Claimants accordingly. 12. MACA No. 458/2020 filed by the Insurance Company fails and MACA No. 848/2019 filed by the Claimants succeeds partly. No cost.