Partly allowed

Icici Lombard Gen.in v. Sarirendri Babu andORS

Orissa HC6 Feb 2023MACA/121/2012

Case brief

AI extract

What is this about?

The High Court affirmed the High Court of Orissa at Cuttack dismissed appeals from insurance companies challenging the 40% negligence attribution of the bus driver, which was justified by eyewitness evidence. The Court enhanced compensation to Rs.17,00,000/- by correcting income calculation, adding 15% future prospects, and awarding damages for loss of consortium, directed to be shared between two

What did the court decide?

The appeals of insurers are dismissed. Compensation enhanced to Rs.17,00,000/- to be shared 60% by Oriental Insurance and 40% by ICICI Lombard.

Icici Lombard Gen.in Vs Sarirendri Babu andORS — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.674 of 2011, MACA No.657 of 2011

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MACA No.121 of 2012

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In MACA No.674 of 2011

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Oriental Insurance Co. Ltd.

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…. Appellant Mr. S.K. Swain, Advocate

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Rupnarayan Agrawal and others

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…. Respondents

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Mr. A.A. Khan, Advocate for Respondent No.3 Mr. P.N. Mishra, Advocate for Respondent Nos.4 to 6

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In MACA No.657 of 2011

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Sairendra Babu and others …. Appellants Mr. P.N. Mishra, Advocate

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-versus-

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Rupnarayan Agrawal and others

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…. Respondents

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Mr. A.A. Khan, Advocate for Respondent No.3 Mr. S.K. Swain, Advocate for Respondent No.4

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In MACA No.121 of 2012

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ICICI Lombard General Insurance Co. Ltd.

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…. Appellant

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Mr. A.A. Khan, Advocate

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-versus-

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Sarirendri Babua and others

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…. Respondents

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Mr. P.N. Mishra, Advocate for Respondent Nos.1 to 4 Mr. S.K. Swain, Advocate for Respondent No.7

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CORAM:

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JUSTICE B. P. ROUTRAY

ORDER

06.02.2023

Order No.

MACA Nos.674, 657 of 2011 & MACA No.121 of 2012

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1. Heard Mr. S.K. Swain, learned counsel for the Oriental Insurance Co. Ltd., Mr. A.A. Khan, learned counsel for the ICICI

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Page 1 of 6

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Lombard General Insurance Co. Ltd. and Mr. P.N. Mishra, learned counsel for the claimants.

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2. All the appeals being arise out of the same judgment dated 13.07.2011 of learned 2^nd MACT, N.D., Sambalpur in M.A.C. Case No.48 of 2009 (S.B.P.), wherein compensation to the tune of Rs.11,00,000/- has been granted along with interest @6% per annum to the claimants from the date of filing of the claim application, i.e. 08.04.2009 on account of death of the deceased in a motor vehicular accident dated 28.02.2009, are heard together and disposed of by this common order.

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3. The learned Tribunal while granting compensation has directed to share the compensation amount between the Oriental Insurance Co. Ltd. and ICICI Lombard General Insurance Co. Ltd. in the ratio of 60:40.

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4. MACA No.674 of 2011 has been filed by Oriental Insurance Co. Ltd. and MACA No.121 of 2012 has been filed by ICICI Lombard General Insurance Co. Ltd. Both these insurance companies have questioned attribution of negligence on their part respectively. MACA No.657 of 2011 has been filed by the claimants praying for enhancement of the compensation amount mainly on the ground of non-addition of future prospects to the income of the deceased and undue reduction of his income by learned Tribunal.

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5. The facts of the case reveal that the deceased was the passenger of Chakadola Bus bearing Registration No.OR-15-G-

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Page 2 of 6

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3344, insured with ICICI Lombard General Insurance Co. Ltd., coming from Bargarh towards Sambalpur. The offending Tanker bearing Registration No.OR-15-B-0181, insured with Oriental Insurance Co. Ltd., was coming from the opposite direction, i.e. from Sambalpur towards Bargarh. On N.H.6 near A-Katapali chowk the right side of the Tanker towards rear violently rubbed with rear right side of the Bus in which the deceased was the passenger. As a result of the accident, the deceased died.

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6. According to Mr. Swain, learned counsel for the Oriental Insurance Company Ltd., the negligence between the offending Bus and Tanker should be on equal proportion. As per Mr. Khan, learned counsel for ICICI Lombard General Insurance Co. Ltd., the entire negligence should be on the part of the Tanker since the driver of the Bus was not at fault.

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7. It is seen that the Police upon completion of investigation has submitted the charge-sheet against the driver of the Tanker absolving the driver of the Bus from negligence. But learned Tribunal held partial negligence, to the extent of 40%, on the part of the driver of the Bus based on the evidence of P.W.2, the eyewitness and the circumstances at the spot. Mr. Khan mostly relies on the opinion of the Investigating Officer given in the Police investigation report.

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8. Upon perusal of the evidence of P.W.2, the eye-witness, as well as copy of the crime detail form demonstrating the spot map, as produced by Mr. Mishra in course of hearing, this Court agrees with the conclusion arrived at by learned Tribunal. As seen from

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the evidence of P.W.2, the Bus as well as the Tanker were driven negligently at the spot of accident. P.W.2 has categorically stated that both the vehicles were at fault and rubbed each other without leaving sufficient space between them while crossing and it is the main cause of accident. When the status of P.W.2 as an eyewitness is not disputed by either party, his evidence prevails upon the opinion of the Investigating Officer, who is not an eyewitness. Therefore, the negligence as attributed between the drivers of the Bus and the Tanker in the ratio of 40:60 is justified and the same is confirmed. Accordingly, no merit is seen in the appeals filed by both the insurance companies.

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9. So far as the appeal filed by the claimants is concerned, they are found entitled for higher amount since it is apparent on the reasoning given by the learned Tribunal that the monthly income of Rs.19,252/- of the deceased per month has been reduced to Rs.15,000/- on the ground that he was to retire from service on superannuation after one year and two months from the date of accident. This reasoning as cited by the learned Tribunal is untenable. Thus, by deducting Rs.200/- towards professional tax, the income of the deceased, who was a Government servant serving as a Clerk in the Block Office, is fixed at Rs.19,052/- per month. It is further seen that learned Tribunal did neither add any future prospect to the income of the deceased nor awarded adequate amount towards loss of consortium and general damages. Accordingly, assessing the income of the deceased at Rs.19,052/- per month and adding future prospects to the extent of 15% thereon along with grant of Rs.40,000/- towards consortium to the widow and two children and Rs.30,000/-

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further towards conventional heads, a total compensation of Rs.17,00,000/- is granted in favour of the claimants. It needs to be mentioned here that Claimant No.4, namely, Ashsis Kumar Babu, the son of the deceased, died on 25.6.2020 and accordingly his name has been deleted by order dated 24.12.2021 of this Court.

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10. In the result, all the appeals are disposed of with a direction to the insurance companies, i.e. Oriental Insurance Company Limited and ICICI Lombard General Insurance Co. Ltd. to pay the entire compensation amount of Rs.17,00,000/- (rupees seventeen lakhs) along with interest @6% per annum from the date of filing of the claim application, i.e. 08.04.2009 in the ratio of 60:40, i.e.,60% by Oriental Insurance Co. Ltd. and 40% by ICICI Lombard General Insurance Co. Ltd. within a period of two months from today; where-after the same shall be disbursed in favour of the Claimant Nos.1 to 3, namely, Sarirendri Babu, Amrita Babu and Nandita Babu on such terms and proportions to be fixed by the learned Tribunal.

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11. On deposit of the award amount by the insurance companies before the Tribunal and filing of receipt evidencing the deposits with refund applications before this Court, the statutory deposit made in MACA No.674 of 2011 and MACA No.121 of 2012 before this Court with accrued interest thereon shall be refunded to the respective insurance companies.

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12. The copies of evidence and crime detail form as produced by Mr. P.N. Mishra, learned counsel for the claimants in course of hearing are kept on record.

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13. An urgent certified copy of this order be granted on proper application.

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( B.P. Routray) Judge

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B.K. Barik

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Icici Lombard Gen.in v. Sarirendri Babu andORS

Case brief

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Icici Lombard Gen.in v. Sarirendri Babu andORS

Case brief

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