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Judgment
B. P. Routray, J
Present appeal by the Insurer is directed against the judgment dated 20th December, 2018 of the 1st Addl. District Judge-cum-1st M.A.C.T., Cuttack in M.A.C. No. 366 of 2016, wherein compensation to the tune of Rs.5,54,000/- has been granted along with interest @6% per annum with effect from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident on 2nd April, 2016.
The challenge is mainly on two aspects, first, negligence on part of the driver of the offending motorcycle bearing Registration No.OD-05N-6825 has been denied and secondly, the quantification of amount of compensation is stated to be on higher side.
The facts of the case as per the claimants are that, the deceased while going as a pillion rider in the offending motorcycle driven by one Pradeep Mallik fell down due to accident resulted by involvement of an unknown motorcycle. The accident took place on 2nd April, 2016 due to rash and negligent driving of the offending motorcycle and the F.I.R. was lodged on 26th April, 2016.
According to the Insurer, the F.I.R. lodged by the son of deceased clearly depicts negligence on the part of the driver of an unknown motorcycle and therefore, compensation cannot be saddled on the present Appellant on behalf of the owner of the offending motorcycle. Further, negligence on the part of the driver of the offending motorcycle where the deceased was a pillion rider is not established on record.
As seen from record, the admitted position remains that involvement of the offending motorcycle in the accident is not disputed. It is not that the Insurer does not admit fall of the an eyewitness to the accident, says in his evidence that the deceased while going in the motorcycle as a pillion rider fell down due to the accident. The police upon completion of investigation have submitted the charge-sheet for commission of offence under Sections 279/304-A against the driver of the offending motorcycle where the deceased was a pillion rider. The charge-sheet as submitted by the police is not questioned by the Insurer before the Criminal Court nor did the accused driver of the offending motorcycle question the same. Most importantly, no evidence has been adduced from the side of the Insurer. So, the contention of the Insurer put forth to absolve negligence on the part of the driver of the offending motorcycle is obviously without substance. In the given circumstances, applying the principles of res ipsa loquitur, the negligence on the part of the driver of the offending motorcycle where the deceased was the pillion rider can safely be concluded. Thus, the finding of the Tribunal in this regard is confirmed.
Further, the submission advanced to question on the quantification of the compensation is seen without merit also. The dispute as put forth by the Insurer is with regard to the income of the deceased. As per the Insurer, in absence of any documentary proof regarding income of the deceased, the same ought not have been counted at Rs.5,000/- per month. It is true that no documentary evidence has been produced to substantiate the income of deceased for the claimed amount. The claimants have stated that the deceased had an income of Rs.12,000/- per month by running a rice huller. This statement made by P.W.1, the wife of the deceased, of course has not been supported by any materials. But, at the same time keeping in view the prevalent rate of minimum wages, age and social status of the deceased, and his place of residence, the sum of Rs.5,000/- per month as assessed by the Tribunal towards income of the deceased per month is found reasonable and just. The same needs no interference.
The Tribunal by adding future prospects to the extent of 10% to the income of the deceased and deducting 1/3rd there from towards personal expenses has determined the total compensation of Rs.5,54,000/-. The same is found appropriate and is confirmed by this Court.
In the result, the appeal is dismissed and the Insurer-Appellant is directed to deposit the entire compensation of Rs.5,54,000/- (Five lakhs fifty four thousand) including interest as directed by the Tribunal within a period of two months from today; which shall be disbursed in favour of the claimants on same terms and proportion as contained in the impugned judgment. The direction for payment of penal interest @12% is waived.
The statutory deposit made by the Appellant with accrued interest thereon be refunded to him on proper application and on production of proof of deposit of the award amount before the learned Tribunal.
Urgent certified copy of this order be granted on proper application.
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