HIGH COURT OF ORISSA: CUTTACK. M.A.C.A.NOs.434 and 498 OF 200.From award dated 02.03.2005 passed by the 1st Addl. District Judge-cum-1st M.A.C.T., Cuttak in Misc. Case No.35 of 2002. --------MACA No.434/2005 Divisional Manager, National Insurance Company Ltd., Cantonment Road, Cuttack-753001 … Appellant … Respondents -VersusSmt. Basanti Sahu & six others For Appellant : M/s. R.K.Mahapatra, Sr. Advocate M.K.Mohapatra & P.Jena For Respondents : M/s R.N.Biswal, G.C.Mohanty, R.K.Biswal, S.Mohanty, S.K.Paikaray & S.Mohapatra (For respondents-1 to
6) M/s. S.K.Mishra, Mr.Dash & S.Mohanty (For R-7) ---------- MACA No.498 of 2005 Smt. Basanti Sahu & five others … Appellants … Respondents -VersusManas Ranjan Patra & another For Appellants : M/s R.N.Biswal, S.K.Paikaray & P.K.Mohapatra For Respondents : M/s. R.K.Mahapatra, Sr. Advocate & P.Jena (For R-2) 2 P R E S E N T: THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of judgment :
10. 05.2013 B.N.Mahapatra, J.These two appeals are directed against the Award dated 02.03.2005 passed by the 1st Addl. District Judge-cum-1st M.A.C.T., Cuttack in Misc. Case No.35 of 2002. MACA No.434 of 2005, filed by the Insurance Company has been listed today for admission along with MACA No.498 of 2005 filed by the claimants. On the request of learned counsel for the Insurance Company and the learned counsel for the claimants, both the Appeals were taken up together for hearing and final disposal. In both the Appeals correctness of the impugned judgment dated 02.03.2005 passed in Misc. Case No.35 of 2002 has been challenged.
2. Case of the claimants before the Tribunal was that on 17.05.2001 while the deceased Budhanath Sahu was proceeding from Royatpatna to Puri in a Trekker bearing registration not ORK-7221 near Biswanathpur Chhak, an Auto rickshaw (Loader) bearing registration not OR02-Q-7464 came from opposite direction being driven in a rash and negligent manner in high speed without taking any precaution dashed the Trekker for which the deceased fell down from the Trekker and the Auto rickshaw (Loader) ran over him resulting fracture of both his legs and multiple injuries all over his body. Finally, Budhanath Sahu succumbed to the said injuries. 3 The case of the claimants was that the road was straight and wide enough at the place of accident and the accident took place solely due to rash and negligent driving of the driver of the Auto rickshaw. The deceased was about 38 years old and was earning Rs.4,500/- per month working as a mason. With these averments the claimants claimed compensation from the owner and insurer of the Auto Rickshaw.
3. Opposite party No.1-owner of the offending Auto rickshaw contested the case by filing written statement. It was averred that the accident resulted due to rash and negligent driving of the Trekker by its driver and because of overloading of passengers, the driver could not keep control over the Trekker. Opposite party No.2-Insurance Company in its written statement has also denied the averments made in the claim petition that the accident resulted due to rash and negligent driving of the driver of the Auto Rickshaw carrying goods. It was further stated in the written statement that with definite purpose the claimants have not made the owner and insurer of the Trekker as parties to the proceeding and therefore, claim petition was liable to be dismissed. In absence of opposite party No.1, opposite party No.2 has been permitted to take wider defence and petition filed under Section 170 of the M.V. Act has been allowed”
4. On the basis of the pleadings of the parties, the Tribunal framed the following issues:(i) Whether due to rash and negligent driving of the driver of the vehicle bearing registration not OR-02-Q-7464 goods vehicle, the accident took place and in that accident one Budhanath Sahu succumbed to the injuries?. (ii) Whether the petitioner(s) is/are entitled to get compensation?. If so, what would be the extent?. (iii) Whether all the O.Ps. or any of the O.Ps. is/are liable to pay the compensation?. (iv) 5. To what relief, if any, the petitioner(s) is/are entitled?. Learned Tribunal taking into consideration both oral and documentary evidence adduced by the parties came to the conclusion that the accident was caused due to composite negligence on the part of the driver of the Trekker as well as driver of Auto rickshaw resulting death of Budhanath as established from the post mortem report (Ext-5) and by oral evidence. The learned Tribunal further assessed the income of the deceased at Rs.1,800/- per month and deducting one-third towards his personal expenses, determined the annual dependency at Rs.14,400/-. Applying 15 multiplier, the learned Tribunal determined the amount of compensation at Rs.2,25,500/- which includes loss of consortium, loss of estate and funeral expenses to the tune of Rs.9,500/-. The learned Tribunal further held that opposite party No.1 is liable to pay half of the compensation determined by it. In absence of any 5 violation of policy condition, the learned Tribunal directed opposite party No.2-Insurer of the offending Auto Rickshaw to pay compensation amount of Rs.1,12,750/-, which is 50% of the total amount of compensation along with interest at the rate of 6% per annum from the date of filing of the claim petition i.e. 28.01.2002 till its realization.
6. Mr. Mahapatra, learned Senior Advocate appearing for the appellant-Insurance Company submitted that the amount of compensation should have been apportioned between the two Insurance Companies due to specific finding of the Tribunal that both the vehicles are responsible for the accident. It is further submitted that the learned Tribunal has committed gross illegality in not allowing the application of the Insurance Company, the insurer of Auto rickshaw (Loader) for calling for records of G.R. Case No.1592 of 2001, wherein the name of the driver of the Auto Rickshaw as mentioned in FIR was Kalia Kabi, whereas in the charge sheet which was submitted after two years of the occurrence, the name of one Gulam Hamid Hussain was shown as accused driver, which would establish tampering or manipulation of the record. Age of the deceased as determined by the Tribunal is without any basis. The application of multiplier 15 is at higher side and consequently the amount of compensation is high and excessive; the award of compensation on account of loss of estate, funeral expenses, loss of consortium are also unreasonable. The driver, who was driving the Auto 6 Rickshaw had no valid driving licence at the time of accident. Therefore, the respondent No.7, the owner of the Auto rickshaw (Loader) is liable to pay the compensation.
7. Mr. R.N.Biswal, learned counsel appearing on behalf of the claimant-appellants submitted that the amount of compensation awarded by the Tribunal is at lower side. The income of the deceased was Rs.200/- per day. The evidence of PW-1, the wife of the deceased, being corroborated by evidence of PW-2 regarding monthly income of the deceased at Rs.4,500/-, the finding of the Tribunal that the income of the deceased was Rs.1,800/- per month is based on surmises only and not sustainable in law. It is further submitted that in view of the judgment of the Hon’ble Supreme Court in the case of Sarala Verma and others vs. Delhi Transport Corporation and Another, 2009(2) TAC 67.(SC), the Tribunal is not justified to deduct one-third of the income of the deceased towards his personal expenses. Since the dependants are six in numbers the deduction towards personal expenses should be one-forth of the income of the deceased. The evidence of PW-2, the ocular witness coupled with Exts.1 to 4 (police papers including charge sheet) go to show that the offending vehicle was Auto rickshaw (Loader) which came in a high speed being negligently driven by its driver responsible for the accident, but the Tribunal wrongly/illegally held both the drivers (Trekker as well as Auto rickshaw) responsible for causing the accident 7 resulting death of the deceased. PW-1 stated that the deceased was 38 years old at the time of the accident and the post mortem report disclosed that the age of the deceased was about 41 years. The Tribunal has committed wrong in taking the age of the deceased to be 42-45 years and applying multiplier 15.
8. On the rival contentions of the parties, the following questions fall for consideration by this Court:(i) Whether the accident in question was caused due to composite negligence of the two vehicles, i.e., the three wheelers Auto Rickshaw and the Trekker?. (ii) Whether the Tribunal is justified to assess the income of the deceased at Rs.1,800/- per month?. (iii) Whether the Tribunal is justified in deducting onethird of the income of the deceased towards his personal expenses?. (iv) Whether the Tribunal is justified in applying 15 multiplier taking the age of the deceased between 4245 years?. (v) Whether the driver of the Auto Rickshaw had valid driving licence at the time of accident?. (vi) Whether the Tribunal is justified in not allowing the application of the applicant-insurer of Auto Rickshaw for calling for the records of GR Case No.152 of 2001 by which the appellant-Insurance Company wanted to establish tampering/manipulation of record on the ground that the name of the driver of the Auto rickshaw as mentioned in F.I.R. was Kalia Kabi 8 whereas in the charge sheet it is shown as Gulam Hamid Hussain?. (vii) Whether the appellant-Insurance Company is correct to say that the amount of compensation determined by the Tribunal should have been apportioned between the two vehicles, i.e., three wheeler-Auto rickshaw and the Trekker?.
9. Question No.(i) is whether the accident was caused due to composite negligence of two vehicles i.e. three wheeler-auto rickshaw and trekker.
10. The learned Tribunal while dealing with issue No.(i) on the basis of post mortem report (Ext.5) and oral evidence has held that the accident was caused due to composite negligence on the part of the driver of the trekker as well as that of the auto rickshaw loader and both were equally negligent in causing the said accident resulting death of Budhanath. The learned Tribunal has not stated on the basis of whose oral evidence it came to the conclusion that the accident was caused due to composite negligence on the part of the driver of the trekker as well as Auto Rickshaw loader. On the contrary, P.W.2, the eye witness, has categorically stated in his evidence that the Auto Rickshaw loader came from the opposite direction; the road is a single road; it runs from Banamalipur to Bhubaneswar on which the accident took place. Its width would be around 12 ft.; there was some load in the trolley auto; he had seen some gunny bags to have been loaded in the 9 trolley; the trolley Auto was going towards Banamalipur; apart from the driver none else was present there; around 10 persons were sitting in the Trekker; they had paid fare for travelling in the trekker as passengers, Budhanath was sitting on the extreme right of the middle seat of the trekker whereas, he was sitting in the middle, the Trekker was going at a speed of about 40 K.M. per hour. In cross examination on behalf of respondent Nos.1 and 2, nothing contrary was elicited; rather in cross-examination on behalf of opp. Party No.2 the independent witness, P.W. 2 said that- “It is not at all a fact that Trekker Driver lost the control over the vehicle because of excessive load, i.e., carrying about 30 passengers”.. Thus, the evidence of P.W. 2 shows that the accident was caused due to rash and negligent driving of the driver of the Auto Rickshaw. It is not understood how the post-mortem report could establish that the accident was caused due to negligence on the part of the driver of the trekker as well as driver of the Auto Rickshaw as observed by the learned Tribunal. Apart from the above, the FIR (Ext.1) was filed and charge sheet was submitted against the driver of the Auto Rickshaw. The learned Tribunal has not accepted the same because it was filed two years after the accident and the Police have not gone to seize the Trekker and its documents in course of investigation in all these years. The Final Form (Ext.2) Column No.12 contains details of the property /articles documents recovered/seized 10 during investigation and relied upon. Sub-column Nos.1, 2, 5 and 6 of Column 12 reads as follows:- Sl. No.1 5.
6.
7.
8. Property Description From whom/where Recovered or seized. Disposal _________ 2 bearin”
6. Trekker not ORK- Seized by the I.O. S.I. Left in Zima of 7221 B.Nanda on the owner 31.12.2001 at PS on production by the owner Sukanta Nayak R.C.Book of the trekker Insurance policy of the above trekker DL of the driver Pradipta Ku. Nayak Therefore, it cannot be said the Investigating Officer has not gone to seize the Trekker and its documents in course of investigation. Thus, the reasons given by the learned Tribunal to hold that the accident was caused due to composite negligence on the part of the drivers of Auto Rickshaw and Trekker and both the drivers are equally negligent are contrary to the materials available on record and not sustainable in law. In view of the above, this Court is of the opinion that the accident in question was caused due to negligence on the part of the driver of the three wheeler-Auto Rickshaw.
11. Question No.(ii) is whether learned Tribunal is justified to assess the income of the deceased at Rs.1800/- per month. 11 P.W.1, who is the wife of the deceased, in her evidence has stated that her husband was earning Rs.4,500/- per month out of which he was contributing Rs.3,500/- to the family. In cross-examination, nothing contrary has been elicited from the mouth of P.W.1. In the instant case, the accident took place on 17.05.2001. In the 2nd Schedule to the Motor Vehicles Act, which was of the year 1994,the notional income of a non-earning person was fixed at Rs.18000/- per annum i.e. Rs.1500/- per month. In the mean time seven years had passed as the accident took place in the year 2001. The Hon’ble Supreme Court in the case of Laxmi Devi & Ors. -vs- Mohammad Tabbar & Anr., 2008 (2) T.A.C. 394 (S.C.), has affirmed the income of a non-earning person at Rs.3,000/- per month as determined by the High Court. The deceased in the present case was a mason. Taking into consideration the totality of the facts, this Court determines the monthly income of the deceased at Rs.3,000/- per month i.e. Rs.100/- per day in the year 2001 as a mason.
12. Question No.(iii) is as to whether the Tribunal is justified in deducting one-third of the income of the deceased towards his personal expenses. Admittedly in the present case, the dependants of the deceased are six in numbers. In view of the judgment of the Hon’ble Supreme Court in the case of Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., AIR 1.2009 SC 310.one-fourth of the income should be deducted from the income of the deceased towards his personal expenses.
13. Question No.(iv) is whether the Tribunal is justified in applying 15 multiplier by taking the age of the deceased between 42-45 years. P.W.1, who is the wife of the deceased in her evidence has stated that at the time of death the deceased was 38 years. Post-mortem report shows that the age of the deceased was 41 years. Therefore, it will be appropriate to apply the multiplier taking the age of the deceased at the relevant time in the age group of 35 to 40 and the appropriate multiplier is 15. Since the learned Tribunal has already applied 15 multiplier, this Court is not inclined to interfere with the same.
14. Question No.(v) is whether the driver of the Auto Rickshaw had valid driving licence at the time of accident. The Tribunal in its order categorically held that no evidence has been led that opp. party No.1-insured had violated any terms and conditions of the policy or committed any breach of conditions of the policy, so that opp. Party No.2 can be absolved from making payment of compensation in the case or at least to claim compensation amount from opp. party No.1. Therefore, the learned Tribunal saddled the payment of compensation on respondent No.2. Undisputedly, no evidence has been led by the appellantInsurance Company before the Tribunal to show that the driver of the 13 offending vehicle, i.e., Auto rickshaw had no valid driving licence at the relevant time of accident. In view of the above, it cannot be said that the driver of the Auto Rickshaw had no valid driving licence at the time of accident.
15. Question No.(vi) is whether the Tribunal is justified in not allowing the application of the Insurer of Auto Rickshaw for calling for the records of GR Case No.152 of 2001 by which the appellant-Insurance Company wanted to establish tampering/manipulation of record on the ground that the name of the driver of the Auto rickshaw as mentioned in F.I.R. was Kalia Kabi whereas in the charge sheet it is shown as Gulam Hamid Hussain. Admittedly, the ground on the basis of which the appellantInsurance Company made application for calling for the record to establish that the name of the driver of the Auto rickshaw mentioned in the F.I.R. has been changed in the charge sheet is contrary to materials available on record. The F.I.R. available in the LCR does not reveal the name of the driver of the Auto rickshaw. The informant has not mentioned in the F.I.R. that Kalia Kabi was the driver of the offending Auto rickshaw. Therefore, the appellant-Insurance Company is not entitled to any relief on this score. Apart from the above, when the request of the Insurer of the Auto Rickshaw for calling for the record in GR Case No.152 of 2001 was No.14 accepted by the Tribunal, the Insurance Company remained silent and did not challenge such action of the Tribunal before the competent Court.
16. Question No.(vii) is whether the appellant-Insurance Company is correct to say that the amount of compensation determined by the Tribunal should have been apportioned between the two vehicles, i.e., three wheeler-Auto rickshaw and the Trekker. In view of the finding of this Court that the driver of three wheeler-Auto Rickshaw is responsible in causing the accident resulting death of the deceased and there is no negligence on the part of the driver of the Trekker, this question has become irrelevant.
17. In view of the above, the amount of monthly income is assessed at Rs.3,000/- and deducting one-fourth therefrom towards personal expenses, the monthly contribution to dependants is determined at Rs.2,250/-; when multiplier 15 is applied, the amount of compensation comes to Rs. 4,05,000/- (Rs.2,250/- x 12 x 15). Compensation of Rs.9,500/is added towards loss of consortium, funeral expenses and loss of estate as awarded by the learned Tribunal. Thus the total amount of compensation comes to Rs. 4,14,500/-.
18. The Insurer of the Auto Rickshaw, National Insurance Company Ltd. is directed to deposit the aforesaid amount of compensation of Rs.4,14,500/- before the Tribunal within a period of eight weeks from today along with interest @6% per annum as fixed by the Tribunal. On deposit of 15 such amount of compensation, the Tribunal shall disburse the same in the manner it has directed in its order.
19. On production of receipt in support of payment of the aforesaid compensation along with interest before the Registrar (Judicial) of this Court, the statutory deposit of Rs.25,000/- with interest accrued thereon shall be refunded to the appellant-Insurance Company.
20. In the result, MACA No.434 of 2005 filed by the Insurance Company is dismissed and MACA No.498 of 2005 filed by the claimants is allowed to the extent indicated above. ..……………………..... B.N.Mahapatra, J Orissa High Court, Cuttack Dated 10TH .May, 2013/ss/skj