Laxmi Priya Panda and Others Vs. the Executive Engineer, Southco, E and M. Division a - Court Judgment

ORISSA HIGH COURT: CUTTACK M.A.C.A. Nos. 328 & 818of 2012 From the judgment dated 31.01.2012 passed by Shri S.Mohanty, Member,2nd M.A.C.T. (S.D.), Berhampur in M.A.C. No.239/2011 (318/2006). ----------In M.A.C.A. No.328 of 2012 …. …. Laxmi Priya Panda and others Appellants -VersusThe Executive Engineer, SOUTHCO, E & M. Division and others …. …. Respondents For Appellant : M/s.R.P.Mohapatra, & Ms.Deepali Mohapatra For Respondents : M/s.S.S.Parida, K.Mohanty, & S.P.Mangaraj (for Respondent no.1) M/s.Nayan Behari Das & Kailash Ch.Mohanty (for Respondent No.2) In M.A.C.A. No.818 of 2012 D.M., Oriental Insurance Co. Ltd. …. …. Appellant -VersusLaxmi Priya Panda and others …. …. Respondents For Appellant : Mr. Nayan Behari Das For Respondents : M/s.R.P.Mohapatra, Ms.Deepali Mohapatra & Sandeep Parida (For Respondent Nos.1 to

4) PRESENT: THE HONOURABLE DR. JUSTICE B.R.SARANGI Date of hearing & judgment : 24.01.2014 2 Dr. B.R.Sarangi, J.MACA No.328 of 2012 has been filed by the claimants- appellants challenging the award dated 31.01.2012 passed by 2nd M.A.C.T. (S.D.), Berhampur in M.A.C. No.239/2011 (318/2006) claiming enhancement of the award. The Insurance Company- appellant in MACA No.818 of 2012 has assailed the said award on the ground that the Insurance Company is No.liable to pay the awarded amount. Since both the appeals arise out of the same award, they are heard together and disposed of by this common judgment.

2. The facts of the case, as depicted in the claim petition, are that on 16.10.2006 at about 10 A.M. while the deceased Sarat Chandra Panda, who was a teacher of Jay Durga M.E. School at Digapada, was proceeding to Chatrapur in his scooter bearing registration No.OR-07A-9270 on National Highway No.5 near village Golla Ganda Palli, the offending trekker bearing registration No.OAG-7358, which was being driven in a rash and negligent manner hit the right side handle of the deceased while negotiating a diversion on National Highway No.5 for which deceased Sarat Chandra Panda fell down on the road and succumbed to the injuries at the spot. It is alleged that the deceased at the time of accident, was on the extreme left side of the road, but the driver of the offending trekker failed to negotiate the diversion and hit the right side of the scooter of the deceased. It is alleged that the offending vehicle was duly insured with the respondent no.2, the Insurance Company, having a valid Insurance Policy. It is also alleged that the deceased was working as an Assistant Teacher and was drawing Rs.9640/- per month 3 as salary and was due for promotion to the post of Headmaster and accordingly claimed for Rs.14,00,000/- as compensation from the opposite parties-respondents.

3. Pursuant to the notice, the respondent no.1-owner appeared, filed his written statement denying the liability to pay compensation as the vehicle was insured and it is stated that the accident took place due to the negligence of the deceased and the driver of the vehicle was having valid driving licence, therefore, is No.liable to pay the compensation amount claimed by the appellants-petitioners.

4. The respondent no.2-Insurance Company, filed written statement denying all the averments made in the claim application and stated that there is no violation of policy condition for which the company is No.liable to pay compensation to the claimants and also sought for dismissal of the claim application.

5. In order to establish their respective cases, the claimants have examined as many as four witnesses and exhibited documents marked as Exts.1 to 12, whereas the respondents have neither examined any witness No.exhibited any documents in support of their case.

6. On the basis of the pleadings available, learned Tribunal framed as many as three issues and upon hearing the parties and going through the evidence and materials available on record, came to a finding that the accident took place due to rash and negligent driving of the offending vehicle and awarded a sum of Rs.3,24,224/- as compensation along with 4 interest at the rate of 7½ % per annum from the date of filing of the application vide award dated 24.9.2009.

7. Assailing the said award dated 24.9.2009 the claimants approached this Court by filing MACA No.935 of 2009 and after hearing, this Court by order dated 15.2.2011 set aside the award and remanded the matter to the learned Tribunal for fresh adjudication.

8. On remand, learned Tribunal upon hearing the parties and after going through the evidence, awarded a sum of Rs.9,44,386/- towards compensation. Assailing the same, the claimants have filed MACA No.328 of 2012 for enhancement of the awarded amount whereas the Insurance Company has filed MACA No.818 of 2012 challenging the impugned award on the ground that they are No.liable to pay such amount.

9. Ms.Deepali Mohapatra, learned counsel appearing for the claimants-appellants has strenuously urged that the Motor Vehicle Act is a beneficial legislation for the claimants, who have suffered due to the accident. Therefore, “pecuniary advantage”. such as, provident fund, pension, life insurance receivable by the claimants on account of the victim’s death do No.come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantages”.. To substantiate her contention, she has placed reliance on the judgment of the apex Court in Vimal Kanwar and others v. Kishore Dan and others, (2013) 7 SCC 476. It is further urged that though the learned Tribunal has awarded a sum of Rs.9,69,386/-, but after deducting a sum of Rs.3,90,550/- deposited by the Insurance Company pursuant to the 5 earlier direction for payment of compensation of Rs.3,24,224/- with interest @ 7½% per annum from the date of filing of the claim application, i.e. 24.11.2006 till the date of actual payment, the learned Tribunal has directed to make payment of the balance amount of Rs.5,78,836/-, thereby without deducting Rs.3,24,224/-, the learned Tribunal has deducted Rs.3,90,550/- from the awarded amount, which is absolutely a misconceived one. She further submitted that the claimants are entitled to get Rs.6,45,162/- (Rs.9,69,386/minus Rs.3,24,224/-) along with interest @ 7½ % per annum from the date of filing of the claim application, i.e. 24.11.2006 with other incidental expenses.

10. Mr.N.B.Das, learned counsel appearing for the Insurance Company vehemently contended that the learned Tribunal has committed error by directing the Insurance Company to pay the amount of compensation without considering the contentions raised about the cause of accident, income and age of the deceased consequently awarded exorbitant amount of Rs.9,69,386/-. It is further urged that out of the said amount, Rs.3,90,550/- has already been deposited pursuant to the award passed in MAC No.318 of 2006 and direction for payment of Rs.5,78,836/- is No.justified.

11. Admittedly, the deceased was working as an Assistant Teacher and was getting regular salary admissible to the post. While making computation of the compensation amount, the learned Tribunal deducted the benefit of provident fund, insurance receivable by the claimants while awarding compensation. Therefore, the matter was remitted back for reconsideration whether such benefits can be liable for deduction or not. In Vimal Kanwar(supra), the apex Court has held that provident fund, pension, 6 insurance and similarly any cash, bank balance, shares, fixed deposits, etc. are all a “pecuniary advantage”. receivable by the heirs on account of one’s death but all these have no correlation with the amount receivable under a statute occasioned only on account of accidental death and such an amount will No.come within the periphery of the Motor Vehicles Act to be termed as “pecuniary advantage”. liable for deduction. While holding so, the apex Court has taken note of the judgment in Helen C.Rebello v. Maharashtra SRTC, (1999) 1 SCC 90. Therefore, on consideration of the same, the learned Tribunal having awarded a sum of Rs.9,69,386/-. While issuing direction for payment as directed for deduction of Rs.3,90,550/- in stead of Rs.3,24,224/-,, which has been awarded as compensation has to be deducted from the total amount of Rs.9,69,386/-., which comes to Rs.6,45,162/- and on that basis interest @ 7 ½ % per annum shall be calculated from the date of filing the application till date, the amount was paid to the claimants. Therefore, the award so passed on 31.1.2012 in M.A.C. No.239/2011 (318/2006) is modified to the extent that the claimants-appellants are entitled to get the balance compensation amount of Rs.6,45,162/- (Rs.9,69,386/- minus Rs.3,24,224/-) along with interest @ 7½ % per annum from the date of filing of the claim application till date of payment. Accordingly, the respondent-Insurance Company is directed to deposit the balance awarded amount of Rs.6,45,162/along with interest @ 7½ % per annum from the date of filing of the claim application till date of payment before the learned Tribunal within a period of six weeks. On deposit being made, the same shall be disbursed in favour of the claimants as per the direction made by the learned Tribunal in the impugned award. 7 12. With the aforesaid modification of the award, MACA No.328 of 2012 is allowed in part.

13. For the foregoing reasons, the appeal filed by the Insurance Company being MACA No.818 of 2012 is dismissed. The Statutory deposit of Rs.25,000/- made by the Insurance Company be refunded to the Insurance Company along with accrued interest on filing the receipt showing deposit of the balance amount with accrued interest before the learned Tribunal. ………………………….. Dr.B.R.Sarangi, J.Orissa High Court, Cuttack The 24th January, 2014/ PKSahoo