D.M. M/S. Oriental Insurance Co. Ltd., Bbsr Vs Sanjukta Sahu

Instant appeal is filed by the Insurance Company in terms of Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act’) challenging the liability and quantum of compensation directed by learned 1^st Additional District Judgecum-1^st Motor Accident Claims Tribunal, Cuttack with an award dated 14^th February, 2023 while disposing of MAC Case No.632 of 2018 on the grounds inter alia that the offending vehicle was not involved in the accident and furthermore, the amount of compensation determined is on the higher side and if in case, any such liability is fixed, the same is required to be reduced.

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2 . The claimants (respondent Nos.1 to 3) filed application under Section 166 of the MV Act before the learned Tribunal for grant of compensation of Rs.67,50,000/- on account of death of the deceased (husband of respondent No.1 and father of respondent

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MACA No.712 of 2023 Page 1 of 10

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Nos.2 and 3) in a vehicular accident dated 27^th June, 2018. Considering the claim application, learned Tribunal framed the following issues: (i) whether due to rash and negligent driving of the driver of the offending vehicle bearing registration No.AP-35V-7989, the alleged accident took place resulting in the death of the deceased? (ii) whether the respondents are entitled to receive compensation and if so, what would be the quantum? (iii) whether the appellant or respondent No.4 to be jointly or individually liable to pay the compensation? (iv) and to any other reliefs, the claimants are entitled?

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3 . The learned Tribunal received evidence and answered all the issues and concluded that the accident had taken place due to the rashness and negligence of the driver of the truck, which caused death of the deceased and since the vehicle in question was validly insured with the appellant, the latter is liable to cover the risk indemnifying respondent No.4, namely, owner of the said vehicle and accordingly, held the claimants (respondent Nos.1 to 3) entitled to compensation for a sum of Rs.58,39,333/- payable to them along with interest @ 6% per annum from the date of claim application filed within two months and in default, to pay interest @ 12% per annum till such payment is made.

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4 . As earlier stated, the appellant questioned the involvement of the offending vehicle and also the quantum of compensation. At the same time, the claimants (respondent Nos.1 to 3) have filed a cross-appeal for enhancement of compensation by an amount Rs.3,41,000/- over and above the sum assessed by the learned Tribunal with a plea that there has been deduction of tax at 10%, which is not justified, inasmuch as, tax deduction is revealed from the salary slip of the deceased marked as Ext.9 itself. With such other grounds pleaded on record, the claimants demand that the compensation is to be enhanced.

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5 . Heard Mr. Mahali, learned counsel for the Insurance Company and Mr. Panigrahi, learned counsel for the claimants (respondent Nos.1 to 3). No one represents respondent No.4.

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6 . Mr. Mahali, learned counsel for the Insurance Company would submit that the alleged vehicle was planted with the connivance of local police since the FIR lodged immediately after the accident revealed that the deceased was hit by an unknown vehicle and that apart, if receives support from the report of inquest conducted in the presence of brother of the deceased. It is alleged that in order to build up a case and to make illegal gain, the alleged vehicle was shown to have caused the accident, the fact which was ignored by the learned Tribunal. Mr. Mahali submits that if at all the alleged accident is to be believed, it was in fact a head-on collision between the motor cycle and the truck and hence, a case composite negligence and thus, the Insurance Company cannot be saddled with the entire liability. That apart, as per Mr. Mahali, the motor cycle of the deceased was not insured as on the date of accident as the insurance was valid from 19^th May, 2017 to 18^th May, 2018, whereas, the accident took place on 27^th June, 2018 and hence, the same was in violation of Section 146 of the MV Act. It is also contended by Mr. Mahali that the deceased was not wearing a helmet at the time of accident, which is again a violation in view of Section 129 of the MV Act and due to such fact, contributory negligence by him is implicit. Lastly, with respect to the quantum of compensation, Mr. Mahali claiming allowance to have been included submits that a sum of Rs.56,37,536/- or in the alternative, a sum of Rs.56,36.405/- reached at on a comparative assessment would be just and proper in the facts and circumstances of the case and furthermore, the amount towards future prospect is also not to carry any interest and while advancing such an argument, he

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MACA No.712 of 2023 Page 3 of 10

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refers to the following decisions, such as, Kalpanaraj and others Vrs. Tamil Nadu State Transport Corporation 2014 (2) TAC 744 SC ; National Insurance Company Ltd. Vrs. Harshali 2020 (5) AIR BomR 450 ; Ravi Vrs. The National Insurance Company Limited and Another2024(1) TAC 9 SC ; 2015 (3) TAC 621 ; order dated 27.03.2023 in SLP(C) No.11669-11671/2020 in Sri Ram General Insurance Co. Ltd. Vrs. Bhagat Singh Rawat and others) ; Oriental Insurance Co. Ltd. Vrs. Malina Basumatary and others (order dated 15.11.2019 in MAC Appeal Nos.329 of 2014, 167 of 2018 Gauhati HC); Reliance General Insurance Co. Ltd. Vrs. Kamala Begam and others (order dated 23.01.2023 in MAC Appeal No.236 of 2017 Gauhati HC); and BM, Oriental Insurance Co. Ltd. Vrs. Tlangngaihzuali (order dated 03.05.2021 Gauhati HC in Review Petition No.2 of 2021).

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7 . On the other hand, Mr. Panigrahi, learned counsel for the claimants referring to the cross-appeal submits that the accident is proved and established so also the involvement of the offending vehicle, since the local police with the investigation held and concluded, filed the chargesheet against the driver of the truck under Section(s) 279 and 304-A IPC read with Section(s) 183, 184 and 187 of the MV Act in the court of learned J.M.F.C.(R), Cuttack. Mr. Panigrahi further submits that there has been no rebuttal evidence from the side of the Insurance Company to show and satisfy that the offending vehicle has been planted, hence, learned Tribunal rightly held the said vehicle to be involved. Mr. Panigrahi also submits that there is no evidence on record regarding head-on collision between the vehicles and as such, the ocular witness, who was near the spot and was behind the deceased, witnessed the accident, according to whom, the truck suddenly swerved to its right and dashed the motor cycle. Hence, it is submitted that there is no head-on collision so claimed

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by the Insurance Company and in no way, the deceased was partially responsible for the accident since the witness present near the spot described it attributing negligence of the driver of the truck only. With respect to other ground vis-à-vis negligence for the deceased for having not wearing helmet at the time of accident, Mr. Panigrahi would submit that the same was not confronted to during trial. It is lastly submitted by Mr. Panigrahi that besides the wrong committed by learned Tribunal in deducting 10% towards tax, it failed to allow 10% increment every three years in respect of the sum on conventional heads in view of the decision in National Insurance Company Limited Vrs. Pranay Sethi and others (2017) 16 SCC 680 .

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8 . Perused the copies of the police papers and other relevant documents including the postmortem report of the deceased besides the certified copies of the deposition of the witnesses examined from the side of the claimants (respondent Nos.1 to 3) before the learned Tribunal. The liability of the Insurance Company is challenged on the ground that the offending vehicle was not involved and it was planted with a false narrative since the FIR revealed about an unknown vehicle to have caused the accident, which is supported by the inquest report conducted shortly afterward. On perusal of the FIR dated 27^th June, 2018 promptly lodged after the accident at the instance of one Rabi Karkaria (not examined as a witness), it is revealed that the deceased was traveling in a motor cycle bearing registration No.OD-08-G-0592 and was hit by an unknown vehicle and he was lying on the road side with injuries and with the help of locals was able to shift him to the hospital. The informant as per the FIR has not witnessed the accident but he found the deceased lying injured after being hit by an unknown vehicle. But, one of the witnesses, namely, P.W.3 deposed that he was behind the

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deceased and in fact, witnessed the accident from a little distance. Admittedly, the FIR does not disclose the particulars of the vehicle or any such description regarding the alleged truck which caused the accident. However, in course of investigation, the local police, as it is made to understand, detected the offending vehicle and ultimately, filed the chargesheet against its driver. On a reading of the chargesheet, the Court finds that nearly after two months of the accident, the investigation was concluded and the chargesheet was filed. Of course, the circumstances under which the truck was traced out have not been brought on to record. In any case, the truck is found to have been involved in the accident and hence, its driver was chargesheeted. The chargesheet was received and filed before the learned J.M.F.C.,(R), Cuttack on 1^st September, 2018. In absence of any evidence to the contrary to make the Court disbelieve the involvement of the truck and when the investigation resulted in filling of chargesheet, notwithstanding, the FIR revealing the fact that an unknown vehicle hit the motor cycle of the deceased, the Court is of the humble view that such a ground so advanced by Mr. Mahali, learned counsel for the Insurance Company has to fail. It is to be believed that though the informant was not a witness to the accident and he simply lodged the FIR, the involvement of the offending truck was ascertained by the local police in course of investigation. At the cost of repetition, it is stated that the Insurance Company since failed to bring any such evidence to substantiate the plea that the offending vehicle was not involved, the Court is to fall back upon and accept the chargesheet which prima facie disclosed involvement of the vehicle with its driver being prosecuted under Section 304-A IPC for having caused the death of the deceased. So, therefore, the conclusion is that it is not a case about the offending vehicle being planted as claimed by Mr. Mahali, learned counsel for the Insurance Company.

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9 . Whether, it was a head-on collision between the motor cycle and the truck as claimed by the Insurance Company? It is pleaded that the deceased had such a collision with the offending truck and hence, there is contributory negligence and the same has not been taken judicial notice of by the learned Tribunal. Referring to the accident report of the vehicle, it is suggested by Mr. Mahali that there was head-on collision between the vehicles. However, the Insurance Company adduced no evidence to substantiate such a plea. On inspection of the accident report of the vehicle, it is difficult on the part of the Court to reach at any such conclusion that there has been a head-on collision between the motor cycle and the truck. Rather, the evidence of P.W.3 suggests that the offending truck suddenly turned to its right and dashed the bike of the deceased. To counter and contradict the above claim of P.W.3, no evidence is on record. Nothing substantial is elicited from P.W.3 during his cross-examination and rather claimed that he was about 150 ft. away from the spot and witnessed the accident with the truck moved to its far right and dashed the deceased. So, therefore, the claim that the vehicle had a head-on collision has also to fail. Similarly, the Court is not inclined to accept the plea that there is a violation of policy condition as the deceased was not wearing helmet. Whether the deceased had a helmet gear or not, nothing specific is mentioned in record. The Court does not find any such material from the police papers that the deceased was or was not wearing helmet at the time of accident. Without any such evidence being elicited or adduced by the Insurance Company, taking a plea regarding violation of a policy condition in view of Section 129 of the MV Act by Mr. Mahali is again not acceptable.

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10 . With regard to the quantum of compensation, there has been deduction of tax @ 10% on the premise that no documentary

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evidence was available but then the salary slip i.e. Ext.9 reveals that the deceased had monthly deductions on professional and income tax @ Rs.200/- and Rs.400/- respectively. In such view of the matter, the learned Tribunal could not have deduction @ 10% in respect of income tax as has been rightly pointed out by Mr. Panigrahi, learned counsel for the claimants. As to the allowance included in the income of the deceased, Mr. Mahali, learned counsel for the Insurance Company submits that a sum of Rs.2,870/- on the said head besides the professional and income tax was to be deducted from the gross salary. The decision of the Apex Court in Kalpana Raj (supra) is referred to by Mr. Mahali to contend that the allowances which are not beneficial to the family of the deceased to be excluded from the salary at the time of assessment of compensation, such allowances being TA, periodical payments for newspapers, telephone, servant, car maintenance etc. In the decision (supra), it has been concluded that the deduction which are to benefit the estate of the deceased cannot be deducted while computing the net monthly earning but the allowances like TA etc. by virtue vocation need not be included therein. In National Insurance Company Limited Vrs. Indira Srivastava and others 2008 (I) TAC 424 (SC) , it is held that the additional allowances which are not to benefit the family cannot be a part of the net income for the purpose of computation of compensation. Similar view has been expressed in catena of decisions. The Court is not inclined to discuss long line of citations not to burden the judgment on the said point as it is well settled that only such allowances to be included as a part of salary which are to benefit the family and not received by the deceased on account of vocation and to meet the general expenses towards travel etc. The Court is of the view that Mr. Mahali, learned counsel for the Insurance Company is incorrect to claim that an amount of Rs.3,470/- should not have been included in the net MACA No.712 of 2023 Page 8 of 10

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salary of the deceased. In fact, the deduction shall be only in respect of the professional and income tax for a sum of R.600/- in total and not Rs. 2870/- being the DA received by the deceased, which adds to the benefit of the family. With the statutory deduction from the gross salary, an amount of Rs,44,050/- is the monthly earning to which 30% is to be added towards future prospects since the deceased was between the age group of 40-50 years and hence, it becomes Rs.57,265/-. The annual income of the deceased with a multiplier of 13 stands at Rs.89,33,340/-. Since the deceased had a family with dependents, 1/3rd deduction towards the self-expenditure is to be considered and with such deduction, the compensation amount is determined at Rs.59,55,560/-. On the general damages, learned Tribunal has allowed an amount of Rs.1,50,000/- over and above to which Mr. Panigrahi, learned counsel for the claimants demands increase by 10% every three years. According to Mr. Mahali, learned Tribunal was not right in allowing such a sum on the conventional heads, as it should be Rs.70,000/-. Considering the contentions of both the sides and the well settled law, as an amount of Rs.70,000/- is permissible on the conventional heads, hence, the Court is to hold that learned Tribunal was at fault to allow Rs.1,50,000/-. With the addition of Rs.77,000/- (including 10% increment from the date of award dated 14^th February, 2023), the final compensation becomes of Rs.60,32,560/-. So, the calculation which is provided by Mr. Mahali, learned counsel for the Insurance Company is to be modified. Having considering all the materials on record, as other grounds raised are also to fail, the final conclusion of the Court is that the claimants are entitled to a sum of Rs.60,32,560/- as compensation payable with interest by the Insurance Company since the alleged vehicle was validly insured as on the date of accident. At the end, it is made clear that the Court has taken note of all the cited decisions referred to MACA No.712 of 2023 Page 9 of 10

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by both the sides, while reaching at the above conclusion albeit not discussed in detail.

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11 . Hence, it is ordered.

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12 . In the result, the appeal and cross-appeal stand disposed of. As a necessary corollary, the impugned award dated 14th February, 2023 passed in MAC Case No.632 of 2018 by the learned 1^st Additional District Judge-cum-1st Motor Accident Claims Tribunal, Cuttack is hereby modified to the extent as aforesaid with a direction to the Insurance Company to deposit an additional sum of Rs. 1,93,227/-(Rs.60,32,560/- minus Rs. 58,39,333/-) with interest @ 6% per annum payable from the date of filling of claim application i.e. 6^th August, 2018 within eight weeks from today to be immediately disbursed thereafter in favour of the claimants. It is directed that the amount shall not carry any penal interest as imposed. It is further directed that on proof of such deposit of compensation within the above time stipulated, the statutory deposit with accrued interest shall be refunded to the Insurance Company forthwith.

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(R.K. Pattanaik) Judge

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TUDU

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Signature Not Verified

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Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 23-May-2024 13:37:26

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MACA No.712 of 2023 Page 10 of 10

D.M. M/S. Oriental Insurance Co. Ltd., Bbsr v. Sanjukta Sahu

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D.M. M/S. Oriental Insurance Co. Ltd., Bbsr v. Sanjukta Sahu

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