Partly allowed

Divisional Manager,Oriental Insurance Co.Ltd. v. Rasonara Begum

Orissa HC14 Mar 2023MACA/225/2018

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeals against a motor accident compensation award. The court upheld the Tribunal's decision to impose full liability on the insurer due to insufficient evidence to apportion negligence. The court increased the death compensation from Rs.3.25 lakhs to Rs.6.34 lakhs, confirming the injury award, and directed the insurer to deposit the amounts with i

What did the court decide?

The appeals of the insurance company were disposed of with a direction to deposit compensation of Rs.6,34,000 (death) and Rs.56,100 (injury) with the Tribunal along with interest at 6% per annum withi

Divisional Manager,Oriental Insurance Co.Ltd. Vs Rasonara Begum — Insurance | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.248 of 2018 & MACA No.225 of 2018

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(From the judgment dated 23^rd August, 2017 passed by learned 6^th M.A.C.T., Karanjia in M.A.C. No.125 of 2012 and M.A.C. No.101 of 2013)

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In MACA No.248 of 2018

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…. The Divisional Manager, Oriental Appellant Insurance Co. Ltd.

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-versus-

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….
Sk. Ayub Hossain and others Respondents
Advocate(s) appeared in this case:-
For Appellant : Mr. G.P. Dutta, Advocate
For Respondents : Mr. B. B. Singh, Advocate
For Respondent Nos.1 to 3
Mr. S. Roy, Advocate
For Respondent No.6
In MACA No.225 of 2018
….
Divisional Manager, Oriental Appellant
Insurance Co. Ltd.

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-versus-

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…. Rasonara Begum and others Respondents

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Advocate(s) appeared in this case:-

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For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. B.B. Singh, Advocate For Respondent No.1 Mr. S. Roy, Advocate For Respondent No.4

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MACA Nos.248 & 225 of 2018

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Page 1 of 9

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CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 14^th March, 2023

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B.P. Routray, J.

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1. Heard Mr. G.P. Dutta, learned counsel for the Appellant-insurer

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(Oriental Insurance Co. Ltd.), Mr. S. Roy, learned counsel for the Respondent-insurer (New India Assurance Co. Ltd.) and Mr. B. B.

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Singh, learned counsel for the Respondents-claimants.

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2. Both the appeals arising out of two claim applications pertaining

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to same accident, where one person died and other one was injured, are

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heard together and disposed of by this common judgment.

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3. MACA No.248 of 2018 has been filed by the insurer-Oriental Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6^th M.A.C.T., Karanjia in M.A.C. No.125 of 2012, wherein compensation

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to the tune of Rs.3,25,000/- has been granted along with simple interest

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@7% per annum to the claimants from the date of filing of the claim application, i.e.1.11.2012 on account of death of the deceased, namely, Rezwana Parbeen in the motor vehicular accident dated 12.5.2011.

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MACA Nos.248 & 225 of 2018

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Page 2 of 9

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4. MACA No.225 of 2018 has been filed by the insurer-Oriental Insurance Co. Ltd. against the judgment dated 23.8.2017 of learned 6^th M.A.C.T., Karanjia in M.A.C. No.101 of 2013, wherein compensation to the tune of Rs.56,100/- has been granted along with simple interest @6% per annum to the claimant from the date of filing of the claim application, i.e.6.8.2013 on account of injury sustained to the claimant, namely, Rasonara Begum in the motor vehicular accident dated 12.5.2011.

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5. The accident was the result of front collision between Indica Car bearing Registration No.OR-11-E-1191 and Truck bearing Registration No.OR-09-P-1859 on a Ghat road while the Car was going up the hill and the Truck coming downhill. The deceased as well as the injured were the occupants of the Car. As per the claimants, the Car was on its left side and the Truck while coming down the hill with high speed dashed the Car swerving to right side.

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6. The learned Tribunal has concluded about composite negligence

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of both the vehicles and by observing that there are insufficient evidences to determine the extent of negligence of the respective drivers, has directed the present Appellant to indemnify entire

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MACA Nos.248 & 225 of 2018

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Page 3 of 9

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compensation amount. This is challenged by the Appellant and Mr. Dutta, learned counsel for the Appellant-insurer (Oriental Insurance Co. Ltd.) submits that, when admittedly there is front collision between two vehicles and the Police has submitted the charge-sheet against both the drivers for criminal prosecution under Sections 279/337/338/304A, I.P.C., the negligence of the drivers should be distributed equally and accordingly the liability to pay the compensation should be shared in

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same proportion.

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7. Two eye-witnesses including the injured were examined in total in both the cases. Their consistent statement is to the effect that the driver of the Truck was entirely negligent for the cause of accident. The Appellant-Insurance Company though did not examine any witness on its behalf, but relied on the contents of Police papers including FIR and final form to substantiate its contention regarding contributory negligence in equal proportion on both the drivers.

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8. Having perused the evidences of both these eye-witnesses, i.e. P.W.2 in M.A.C. No.125 of 2012 and P.W.1 in M.A.C. No.101 of

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2013, it reveals that they have categorically stated about negligence of the driver of the Truck, who dashed the Indica Car by swerving

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MACA Nos.248 & 225 of 2018

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Page 4 of 9

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towards right side. However, the content of the FIR goes to show that both the vehicles were coming in high speed on the Ghat road resulting the unfortunate accident. Neither party did attempt to examine the informant before learned Tribunal. It is true that production of copies of documents like FIR and charge-sheet does not dispense with proof of contents of the documents. Therefore, in absence of evidence of material witnesses, no point is seen in favour of the contention of the insurer to conclude part-negligence on the driver of the Car. So, upon going through the evidences produced before the Tribunal, I agree with

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the opinion of learned Tribunal that such evidences produced are insufficient to determine the extent of negligence on each of drivers in definite proportion.

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9. The Supreme Court in the case of Khenyei vs. New India Assurance Co. Ltd. and others, 2015 (2) T.A.C. 677 (S.C.) has observed as follows:

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“What emerges from the aforesaid discussion is as follows:

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(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort-feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

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(ii) In the case of composite negligence, apportionment of compensation between two tort-feasors vis-à-vis the

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MACA Nos.248 & 225 of 2018

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Page 5 of 9

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plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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(iii) In case all the joint tort-feasors have been impleaded and evidence is sufficient, it is open to the Court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/extent of their negligence has been determined by the Court/Tribunal, in main case one joint tort-feasor can recover the amount from the other in the execution proceedings.

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(iv) It would not be appropriate for the Court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort-feasor in independent proceedings after passing of the decree or award.”

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10. In the case at hand, when the evidences are insufficient to determine the extent of negligence on respective drivers, the joint tortfeasor, i.e. the owner of the Car along with its insurer (New India Assurance Co. Ltd.), who has been left out from the rigor of payment of compensation, can be proceeded with for realization of appropriate amount in proportion with his amount of negligence by the present Appellant-insurer, in view of the law settled in the afore-cited case. Therefore, it is observed here that the present Appellant-insurer is at

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MACA Nos.248 & 225 of 2018

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Page 6 of 9

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liberty to proceed against New India Assurance Co. Ltd. along with the owner of the offending Car, in case he desires so, to sue him in independent proceeding after satisfying the award amount.

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11. In MACA No.248 of 2018, i.e. the case of death, the claimants

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have prayed for enhancement of the compensation amount on the ground of higher income of the deceased and also by addition of future

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prospects. The cross-objectors being the claimants are exempted from payment of deficit Court fee for the time being and also are dispensed with filing of certified copy of the judgment.

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12. I t is contended on behalf of the Appellant-insurer that the award

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of compensation amount to the extent of Rs.1,00,000/- towards consortium and Rs.50,000/- towards love and affection are unsustainable in view of the settled principles.

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13. Perusal of impugned judgment reveals that the date of birth of

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the deceased as per H.S.C. Certificate is 25.11.1970. So considering the date of accident on 12.5.2011, her age is taken as 39 years and accordingly multiplier ‘15’ is found applicable. The deceased being a woman aged about 39 years, her notional income is fixed at Rs.3000/-

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MACA Nos.248 & 225 of 2018

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Page 7 of 9

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per month as per the ratio settled in the case of Laxmi Devi and others

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vs. Mohammad Tabbar and another, (2008) 12 SCC 165 . Further, the Supreme Court in Kirti and another vs. Oriental Insurance Company Limited, (2021) 2 SCC 166 , have held in support of addition of future prospects on notional income.

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14. Thus adding future prospects to the extent of 40% on the notional income of the deceased at Rs.3000/- per month, her annual income comes to Rs.50,400/-. Deducting 1/3^rd towards personal expenses, the total loss of dependency is determined at Rs.5,04,000/-. A sum of Rs.1,00,000/- is added towards spousal consortium as well as parental consortium, keeping in view the date of accident on 12.5.2011. Further a sum of Rs.30,000/- is added towards loss of estate and funeral expenses. Accordingly, the total compensation amount is derived at Rs.6,34,000/-, payable along with interest @6% per annum.

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15. In the injury case, i.e. M.A.C.A. No.225 of 2018, no such valid ground is seen to interfere with the quantification of compensation amount. Accordingly, the amount as directed by learned Tribunal in the injury case is confirmed.

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MACA Nos.248 & 225 of 2018

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Page 8 of 9

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16. In the result, both the appeals (MACA No.248 of 2018 and MACA No.225 of 2018) are disposed of with a direction to the Appellant-insurer (Oriental Insurance Company Ltd.) to deposit respective compensation amounts of Rs.6,34,000/- and Rs.56,100/before learned Tribunal along with interest @6% per annum from the date of filing of respective claim applications, within a period of two moths from today. The amounts shall be disbursed in favour of the

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respective claimants on such terms and proportions to be decided by learned Tribunal.

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17. On deposit of the award amount before the learned Tribunal and filing of receipt evidencing the deposit with refund applications before this Court, the statutory deposits made in MACA No.248 of 2018 and MACA No.225 of 2018 before this Court with accrued interest thereon

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shall be refunded to the Appellant-Insurance Company.

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18. The copies of the evidences and other documents produced in

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course of hearing are kept on record.

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B.K. Barik/Secretary

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MACA Nos.248 & 225 of 2018

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Page 9 of 9