w w w . L a w y e r S e r v i c e s . i n



The Divisional Manager, M/s. Oriental Insurance Co. Ltd. v/s Geetanjali Bhutia & Others


Company & Directors' Information:- THE ORIENTAL INSURANCE COMPANY LIMITED [Active] CIN = U66010DL1947GOI007158

Company & Directors' Information:- ORIENTAL COMPANY LIMITED [Not available for efiling] CIN = U70101RJ1935ULL000047

Company & Directors' Information:- ORIENTAL INDIA LTD [Strike Off] CIN = U51226WB1983PLC036505

Company & Directors' Information:- ORIENTAL CORPN PVT LTD [Active] CIN = U51909GJ1937PTC000133

Company & Directors' Information:- I.N. INSURANCE COMPANY PRIVATE LIMITED [Strike Off] CIN = U67200DL1994PTC062554

Company & Directors' Information:- ORIENTAL CORPORATION LIMITED [Not available for efiling] CIN = U99999MH1937PTC002741

    MACA No. 334 of 2020

    Decided On, 17 August 2021

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE BISWANATH RATH

    For the Appellant: A.A. Khan, S.K. Mishra, S.K. Sahoo, Advocates. For the Respondents: R1 to R3, T.Ch. Mohanty, Sr. Advocate, M/s. J. Mohanty, R. Bhagat, Advocates.



Judgment Text

1. This appeal is filed at the instance of the Oriental Insurance Company Ltd. challenging the judgment & award passed by the 1st Addl.Dist.Judge-cum-1st M.A.C.T., Cuttack in MAC No.596 of 2015.2. Factual background involved in this case is that on 18.12.2013 at about 11 P.M. while the deceased was returning in the offending vehicle from Bhubaneswar to his village at Talcher, the driver of the said vehicle driving in rash and negligent manner suddenly dashed against a loaded truck from its backside, resulting the deceased sustained grievous injuries. Immediately after such accident the deceased was shifted to S.C.B. Medical College & Hospital, Cuttack in an ambulance for treatment, where he succumbed to injuries during course of treatment. The claimants have the specific case that the mishap took place due to rash and negligent driving of the driver of the offending vehicle. On the premises that the deceased was only 28 years age at the time of death and by profession was a contractor earning minimum Rs.30,000/- per month from his contractor profession, the claimants claimed for appropriate compensation making both the Insurance Company involving the offending vehicle and the owner of the vehicle as Opposite Parties therein.3. The owner i.e. the Opposite Party No.1 therein contested the proceeding by filing written statement, on the premises that the claimants have no cause of action against the Opposite Party No.1, the Opposite Party No.1 with an alternate plea submitted therein that even assuming that there is entitlement of compensation, but since the vehicle was insured under the Opposite Party No.2 therein i.e. the present appellant, there may be a direction for payment of compensation by the Insurance Company and the claim case should be dismissed against the owner. Similarly the present appellant being the Opposite Party No.2 therein contested the case by filing independent objection. The Insurance Company while denying the allegations made by the claimants contended that it is for the claimants to prove their case by filing relevant documents. It is also pleaded by the Insurance Company that there was no involvement of alleged offending vehicle in the accident. It is thus contended that there is no claim involving the policy relied on therein and thus the claim made by the claimants is not entertainable against the Insurance Company. The claim was also contested on the point of liability. Pleadings therein further disclose that even otherwise the driver of the alleged offending vehicle was not holding valid and effective driving license at the time of alleged accident and in alternate the Insurance Company also challenged the claim of compensation being at higher side.4. On completion of pleadings the Tribunal framed the following issues:"ISSUES1. Whether the claim application in the present form is maintainable?2. Whether due to rash and (or) negligent driving of the driver of the offending vehicle (Mahindra Bolero) bearing registration No.OR-19-K-2164 the accident took place and in that accident the deceased, Ajaya Kumar Bhutia, succumbed to injures?3. Whether the petitioners are entitled to get the compensation. If so, what would be the extent?4. Whether both the Opposite Parties or either of them are/is liable to pay the compensation? And5. To what relief(s), if any, the petitioners are entitled to?5. Parties to strengthen their case more particularly, the claimants examined two witnesses and exhibited Ext.1 to11. The Opposite Party No.1 therein has neither produced any witnesses nor relied on any documents. The Opposite Party No.2, however, entered into cross-examination involving the claimant's witnesses. Basing on the pleadings and the submissions of the respective parties, the Tribunal attending to issue no.2 has come to hold that the deceased died on a vehicular accident caused due to rash and negligent driving of the driver of the offending vehicle bearing No.OR-19-K-2164 a Bolero. Similarly, answering on the issue nos.1, 3, 4 & 5 the Tribunal taking into account the pleadings and the material particulars as a whole and more particularly claim of the claimants since based on income tax returns for the assessment year 2010-2011 and 2011-12, came to observe that average income of the deceased after deduction of tax per annum comes to Rs.2,52,176/- adding thereto 40% towards future prospect, as the deceased was below 40 years, the Tribunal after entering into the contribution aspect involving the deceased family, came to observe that annual package towards compensation comes to Rs.2,64,785/-. Taking into consideration the age of the deceased the Tribunal applied 17 multipliers and further taking into consideration the compensation granted towards loss of estate, loss of consortium and funeral expenses, the Tribunal granted a further sum of Rs.70,000/- towards conventional heads namely loss of estate, loss of consortium and funeral expenses. The entitlement of compensation of Rs.45,01,345/-, therefore, comes to Rs.45,71,345/-. Further also while granting 6% interest on the compensation amount from the date of claim, the Tribunal also directed, failure of making payment within particular time, interest will be added 12% per annum. The Tribunal also fixed some modalities for release of the compensation.6. Assailing the judgment impugned herein, Mr. Khan, learned counsel for the Appellant taking this Court to the grounds taken in the memorandum of appeal contested the judgment on several counts.7. Mr. Khan, learned counsel for the Appellant submitted that for the claim of the claimants that the accident took place due to the sudden break used by the front running goods loaded trucks, liability of making payment of the compensation involving such accident should not have been fixed on the Insurance Company. Mr. Khan, learned counsel for the Appellant also claimed that even though the claimants claim that the deceased was a contractor and had filed income tax return of the assessment year 2010-11 and 2011-12, however, there was no filing of tax return to connect the accident, which took place on 18.12.2013. Mr. Khan, learned counsel for the Appellant thus challenged the judgment on the premises that there has been wrong consideration of the materials available on record. Mr. Khan, learned counsel for the Appellant, therefore, contended that for no filing of the income tax return of the assessment year 2012-13, there was absolutely no materials available disclosing the income of the deceased at the time of accident and there was even no production of bank details of the particular period. For some disclosures through the document at Ext.9 and unregistered documents, the Insurance Company contested the award on the premises that the document vide Ext.9 is manufactured to shoot the claim of the claimants. Mr. Khan, learned counsel for the Appellant also contested the award on the premises that the Tribunal should have considered 1/3rd deduction of the assessed income of the deceased under the heading of the personal expenditure. Therefore it went wrong in applying 1/4th deduction. For the involvement of a joint family business Mr. Khan, learned counsel for the Appellant also contended that none of the claimants would have been entitled to anything on the head of family expenditure for their share involving partnership business and therefore, deduction on this head in the minimum should have been 1/3rd.8. Taking this Court to the decision of the Hon'ble apex Court in the case of National Insurance Company Limited versus Pranay Sethi and others as reported in 2017(4) T.A.C.673(S.C.). Mr. Khan, learned counsel for the Appellant also challenged the award of 40% on the head of future prospect and in the process Mr. Khan, learned counsel for the Appellant requested this Court for interfering in the award and suitably modifying the compensation.9. Mr. Mohanty, learned Senior Advocate appearing on behalf of the Respondents 1 to 3, on the other hand, referring to the pleadings already taken in the trial process and the evidence available on record both oral and material, while contesting the plea of the Insurance Company submitted that in fact the Insurance Company did not have any evidence oral or material to establish their case, as they have neither examined anybody nor produced any document to disprove the claim of the claimants. On the score of the Tribunal relying on the assessment of income tax of the assessment year 2010-11 & 2011-12, Mr. Mohanty, learned Senior Advocate for the Respondents 1 to 3 contended that there was at least some piece of materials to establish the income of the deceased and for the material establishment through the documents prior to the accident, there is no illegality in assessing the compensation on the basis of assessment orders being produced. Taking this Court to the decision of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Sethi and others as reported in 2017(4) T.A.C.673(S.C.). Mr. Mohanty, learned Senior Advocate appearing on behalf of the Respondent Nos.1 to 3 claimed that the award gets support through the said judgment requiring no interference therein. On the plea of the Insurance company on the basis of non- filing of return for the assessment year 2012-13 Mr. Mohanty, learned Senior Advocate contended that since the accident took place on 18.12.2013, return, if any, for the assessment year 2012-13 could not be filed, as the same was to be filed only after March-2014 and therefore, there was no scope of filing return of the deceased for the assessment year 2012-13 considering the death of the deceased taken place on 18.12.2013. Mr. Mohanty, learned Senior Advocate seriously objected to the claim of the Appellant on the score of deduction and on the other hand referring to the cross appeal by the claimants Mr. Mohanty, learned Senior Advocate appearing on behalf of the Respondents 1 to 3 taking this Court to the plea taken therein and the decisions taken support therein, while requesting this Court to dismiss the appeal at the instance of the Insurance company prayed this Court for enhancement of the compensation.10. Considering the rival contentions of the parties, this Court finds, the trial court basing on the pleadings of the parties framed the issues as indicated hereinabove in paragraph no.3. Looking to the observation made by trial court, this Court observes, even though the Insurance Company pleaded so many things, but unfortunately there is no examination of single witnesses, nor bringing any material particulars to disprove the claim of the claimants on any of the aspect. This Court again vetting through the cross examination process finds, there is absolutely no attempt at the instance of the Insurance Company to dislodge the material support introduced by the claimants in the trial proceeding. This Court, therefore, observes, in the above situation the only material available for consideration is, the pleadings of the respective parties and the evidence oral and material taken support by the claimants. Now coming to the challenge of the Insurance Company on the basis of orders being passed on the tax assessment of the year 2010-11 & 2011-12, this Court finds, for the accident taking place on 18.12.2013, these were the two returns available for consideration and have been rightly relied on, besides this there cannot be any dispute also in taking into account the income of a businessman / contractor some time prior to the accident taken place. This Court, therefore, does not find any scope for interfering on the issue of income aspect involving the deceased. Similarly on the score of responsibility of the liability aspect involving the vehicle vis--vis the Insurance Company, this Court finds, the claimants here claimed that the accident caused due to the rash and negligent driving of the driver of the offending vehicle resulting death of the deceased, here even though the Insurance Company took a stand that the offending vehicle got into accident for the use of sudden break of the front goods loaded vehicle, there is in fact no attempt by the Insurance Company to establish their such claim. Therefore, there remains no foundation on the claim of the Insurance Company that the front vehicle becomes a reason of the accident involved herein. Now coming to the question of deduction towards self expenditure, for the involvement of the contribution to the family, this Court finds, there is material disclosures to establish that the deceased was one amongst the members of the partnership business, which undisputedly includes other family members. It is apparent that there is involvement of other family members in the partnership business and this Court, therefore, finds force in the submission of Mr. Khan, learned counsel for the Appellant that instead of adopting deduction of 1/4th from the income of the deceased under the heading of personal leaving expenditure, it shou

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ld have been 1/3rd deduction of the same. This Court, therefore, finds, there is requirement of reconsideration of the income aspect vis--vis contribution to the family by applying deduction of 1/3rd from the contributing the expenditure of Rs.3,53,046/- even after taking 40% as future prospect. The submission so far grant of a sum of Rs.70,000/- on conventional head namely loss of estate, loss of consortium and funeral expenditure is concerned, this Court finds, grant of a sum of Rs.70,000/- on the above head is strictly in terms of the decision of the Hon'ble apex Court in the case of National Insurance Company Limited versus Pranay Sethi and others as reported in 2017(4) T.A.C.673(S.C.). It is, in this view of the matter, this Court partly allowing the present appeal, remits the matter to the 1st Addl. District Judge-cum-1st MACT, Cuttack to revisit the calculation aspect taking into account the deduction of 1/3rd from Rs.3,53,046/- and applying 17 multiplier. It is also open to the Tribunal to revisit on the interest aspect as well as the modality of releasing of the compensation amount and the entire exercise is directed to be completed within a period of one & half months from the date of communication of an authenticated copy of this judgment.11. The Appeal succeeds to the extent indicated hereinabove. In view of the above, this Court finds, the cross-appeal needs no further order and is disposed of, accordingly.
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