Allowed

Pravas Sahani v. Mahendra Patra

Orissa HC16 Mar 2023MACA/561/2010

Case brief

AI extract

What is this about?

Appeal against Motor Accident Claim judgment. Court set aside Tribunal's conclusion that deceased was a pillion rider, accepting eyewitness proof he was a pedestrian. Calculated compensation as Rs. 3,20,000 based on unskilled worker minimum wages and awarded interest.

What did the court decide?

Tribunal's judgment set aside. Insurer directed to deposit compensation of Rs. 3,20,000 with interest @ 6% per annum within two months.

Pravas Sahani Vs Mahendra Patra — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MACA No.561 of 2010

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(From the judgment dated 29^th April, 2010 passed by the Addl. District Judge-cum-5^th MACT, Kendrapara in M.A.C. Case No.6 of 2007

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Pravas Sahani & Anr. …… Appellants
Versus
Mahendra Patra & Anr. ….… Respondents
Advocate(s) appeared in this case:-
For Appellants : Mr.K.Panigrahi, Advocate
For Respondents : Mr.A.A.Khan, Advocate
CORAM : JUSTICE B.P. ROUTRAY
JUDGMENT
16 th March, 2023
B.P.Routray, J.

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Heard Mr. Panigrahi, learned counsel for the Appellant and Mr.Khan, learned counsel for the Insurer-Respondent No.2.

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Present appeal by the Claimants is directed against judgment dated 29^th April, 2010 of Addl. District Judge-cum-5^th MACT, Kendrapara in M.A.C. Case No.6 of 2007. The Tribunal upon discussion of the materials has come to the conclusion that the deceased was a pillion rider of the offending motor-cycle bearing registration No.OR-21-8006 and therefore, he is not entitled for compensation being a gratuitous passenger.

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Page 1 of 4

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The accident took place on 21^st December 2006 as a result of front collision between two motor-cycles bearing registration No. OR-21-8006 (hearinafter referred as offending vehicle) and OR-04-E-3426. It is the consistent case of the Claimants that at the time of accident the deceased was going as a pedestrian when the offending vehicle dashed against from behind coming rash and negligently with high speed, and again dashed with the other motor-cycle. The FIR was lodged on the next day by one Santosh Kumar Sandha, who is not an eye witness of accident.

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The police upon completion of investigation submitted the charge-sheet against the driver of the offending motor-cycle namely, Santosh Kumar Sandha for commission of offences under Sections 279/337/338/304-A IPC.

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The Claimants examined three witnesses in support their contention. No witness was examined from the side of the Insurer and the owner did not come to context the case.

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Among the witnesses examined from the side of the Claimants, P.W.1 & 3 are the eye witnesses of the accident. Their statements clearly disclose that the deceased was a pedestrian at the time of accident who was dashed by the offending motorcycle from behind. But the Tribunal relying on the contents of the FIR as well as statements of some of the witnesses recorded under section 161 of the Cr.P.C. has come to conclusion that the deceased was a pillion rider in the offending motor-cycle. This approach of the Tribunal is not found justified without any proof to the contents of FIR by adequate evidence. It is important to observe here that production of copy of the FIR would not per-se prove its contents nor would it dispense with required proof for

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Page 2 of 4

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the contents. It is well-known that the statement of any witness recorded by police under Section 161 of the Cr.P.C. cannot be used in evidence except for the purpose of contradiction. Therefore, the reliance placed by the Tribunal on the contents of the FIR and 161 statements against the positive evidence led by the Claimants through independent eye witnesses are found completely erroneous. Thus, the conclusion derived by the Tribunal based on such inadmissible evidences is set aside. Conversely, it is held that the Claimants have established their case through specific evidences brought on record by the statements of P.W.1 & 3.

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The deceased was unmarried and his age as mentioned in the post-mortem report is 22 years. He is treated as a mason in avocation on the date of accident. P.W.2, the mother of the deceased has stated in her evidence that the deceased was earning Rs.150/- per day by working as Mason. However, in absence of any corroborative evidence in support of the income of the deceased, his income can be assessed as per minimum wage rate prevalent on the date of accident. As per notification No. 20123 dated 27^th November, 2003 of Government of Odisha in Labour & ESI Department, Rs.75/- was prescribed for skilled labourer and Rs.55/- for unskilled labourer, per day. In the circumstances of the case when no supportive material has been produced regarding the income and avocation of the deceased other than oral statement of his mother (P.W.2), it would be apt to take the deceased as an unskilled labourer and accordingly his income is fixed at Rs.55/- per day. The monthly income thus comes to Rs.1650/-. Adding future prospect to the extent of 40% it becomes Rs.2310/-. The annual loss of dependency after

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Page 3 of 4

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deducting 50% towards personal expenses thus comes to Rs.13,860/- and the total loss of dependency is arrived at Rs.2,49,480/-. Adding Rs.20,000/- towards filial consortium to each of the Claimants and 30,000/- towards funeral expenses, total compensation is determined at Rs.3,19,480/-, rounded to Rs.3,20,000/-, payable along with interest @6% per annnum.

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In the result, the appeal is disposed of with a direction to the Insurer-Respondent to deposit the compensation amount of Rs.3,20,000/- (Three lakhs twenty thousand) along with interest @ 6% per annum with effect from the date of filing of the claim application within a period of two months from today; whereafter the same shall be disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal.

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Urgent certified copy of this order be granted on proper application.

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( B.P. Routray) Judge

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S.Das

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Page 4 of 4

Pravas Sahani v. Mahendra Patra

Case brief

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Pravas Sahani v. Mahendra Patra

Case brief

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