Allowed

Jayanti Panigrahi v. S.Bhimsen Patro

Orissa HC14 Jul 2023MACA/77/2010

Case brief

AI extract

What is this about?

The High Court of Orissa allowed two appeals arising from a motor accident claim. It dismissed insurers' challenges regarding the driver's authorization and deceased contributory negligence, disapproved the Tribunal for rejecting income evidence, and enhanced compensation to Rs. 9,93,750.

What did the court decide?

Insurance Company directed to deposit modified compensation of Rs. 9,93,750 with interest @ 6% per annum before the Tribunal within two months for disbursement.

Jayanti Panigrahi Vs S.Bhimsen Patro — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.77 of 2010 & MACA No.354 of 2010

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In MACA No.77 of 2010

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…. Smt. Jayanti Panigrahi and others Appellants Mr. D. Pattnaik, Advocate

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-versus-

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S. Bhimsen Patro and another …. Respondents Mr. A. Das, Advocate for Respondent No.2

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In MACA No.354 of 2010

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Order No.

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National Insurance Co. Ltd. …. Appellant
Mr. A. Das, Advocate
-versus-
….
Smt. Jayanti Panigrahi and others Respondents
Mr. D. Pattnaik, Advocate for Respondent Nos.1 to 5
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
14.07.2023

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MACA No.77 of 2010 and MACA No.354 of 2010

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1. Heard Mr. D. Pattnaik, learned counsel for the claimants and Mr. A. Das, learned counsel for the Insurance Company.

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2. Both the appeals being arise out of the same judgment dated 5.11.2009 of learned 1^st M.A.C.T., Ganjam-Gajapati, Berhampur in M.A.C. No.167 of 2006, wherein compensation to the tune of Rs.1,72,500/- has been granted along with interest @7½ % per annum to the claimants from the date of filing of the claim application, i.e.30.6.2006 on account of death of the deceased in

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Signature Not Verified

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Page 1 of 4

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 18-Jul-2023 10:46:40

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the motor vehicular accident dated 7.7.2005, are heard together and disposed of by this common order.

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3. In MACA No.354 of 2010, the insurer challenged the impugned award mainly on the ground that the driver of the offending vehicle, i.e.Tractor bearing Registration No.OR-07-E7834 was not authorized to drive the same and secondly, the deceased has contributed negligence towards the accident.

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4. On the other hand, the claimants have filed MACA No.77 of 2010 praying for enhancement of the compensation amount on the ground that the income of the deceased has been assessed at lower side.

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5. First dealing with the challenges advanced by the Insurance Company, the contentions regarding driving lincense of the driver are found without merit. Admittedly, the driver was authorized to drive a non-transport vehicle and the copy of his driving license was marked under Ext.B. The offending vehicle being a Tractor, the driver is found authorize to drive the same in view of Section 2 (21) of the M.V. Act.

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6. The accident took place when the deceased was going by walk. The offending vehicle dashed him from behind. Therefore, the contentions raised to attribute negligence on the part of the deceased are also found without merit and rejected.

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7. So far as the contentions of the claimants are concerned, it is seen that learned Tribunal by disbelieving the claim of the applicants to accept the income of deceased at Rs.7500/- per

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Signature Not Verified

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Page 2 of 4

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 18-Jul-2023 10:46:40

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month, has counted his notional income at Rs.15,000/- per annum. The case of the claimants is that the deceased was working as a Supervisor under a contractor (P.W.5). The wife of the deceased (P.W.1) as well as P.W.5 have stated in their oral evidence regarding receipt of such amount by the deceased towards his salary. They have also produced the letter of appointment of the deceased under Ext.5. But learned Tribunal has rejected their contention and discarded Ext.5 to accept the notional income prescribed under Schedule II of the M.V. Act. This approach of the learned Tribunal is found erroneous and disapproved by this Court. It is for the reason that when the consistent case of the claimants that the deceased was working as Supervisor and they adduced oral evidence to that effect including Ext.5, the deceased cannot be treated as a non-earning person only for the simple reason that the claimants failed to produce documentary evidence regarding specific income of the deceased. In the circumstances, keeping in view the oral evidence adduced from the side of the claimants particularly through P.W.1 and P.W.5, which are remained un-rebutted in their crossexamination, this Court find it appropriate to accept the income of the deceased at Rs.5000/- per month at least. Such conclusion is derived by taking note of the place of residence of the deceased and date of accident.

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8. The deceased was 40 years old at the time of accident as per post mortem report. Accordingly, multiplier ‘15’ is taken and deducting 1/4^th towards personal expenses, the annual loss of dependency with addition of future prospects to the extent of 25%, comes to Rs.56,250/-. The total loss of dependency Signature Not Verified

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Page 3 of 4

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 18-Jul-2023 10:46:40

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becomes Rs.8,43,750/-. Adding Rs.1,50,000/- towards general damages including consortium to the widow and children, the compensation amount is determined to Rs.9,93,750/-, payable along with interest @6% per annum.

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9. In the result, both the appeals are disposed of with a direction to the Insurance Company to deposit the modified compensation of Rs.9,93,750/- (rupees nine lakhs ninety-three thousand seven hundred fifty) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e.30.6.2006 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 decided by learned Tribunal.

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10. On deposit of the award amount by the insurer before the learned Tribunal and filing of a receipt evidencing the deposit with refund applications before this Court, the statutory deposit made in MACA No.354 of 2010 before this Court with accrued interest thereon shall be refunded to the insurer.

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

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( B.P. Routray)

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Judge

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B.K. Barik

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Signature Not Verified

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Page 4 of 4

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Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, C utta ck Date: 18-Jul-2023 10:46:40

Jayanti Panigrahi v. S.Bhimsen Patro

Case brief

What is this about?

What did the court decide?

Jayanti Panigrahi v. S.Bhimsen Patro

Case brief

What is this about?

What did the court decide?

What the court decided

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