Divisional Manager, M/S. Oriental Insurance Co. Ltd., Rourkela vs Sita Tanty And Others

G. Satapathy, J

This appeal U/S.173(1) of the Motor Vehicles Act, 1988 (In short, "the Act") is directed against the impugned judgment dated 12.10.2023 passed by the learned Vth, Motor Accident Claims Tribunal, Rourkela (In short, the "Tribunal") in MAC Case No.32 of 2022 directing the appellant-Divisional Manager, M/s. Oriental Insurance Co. Ltd. (In short, "the insurer") to pay a sum of Rs.15,58,368/- to the claimants-R1 to 6 together with simple interest @ 6% per annum w.e.f. 23.02.2022 till its actual realization towards compensation for the death of one Laxmidhar Tanty (hereinafter referred to as "the deceased") in a motor vehicular accident.

Briefly stated, on 31.01.2022 at about 8AM, the deceased unfortunately died in a motor vehicular accident while one Bus bearing Regd. No.OD-16A-3877 (hereinafter referred to as "the offending Bus") dashed the motor cycle of the deceased near Baghiaberni (Rupaghati). The accident was reported to the police and, accordingly, Talsera PS Case No.19 of 2022 was registered, which ultimately resulted in submission of charge-sheet. The claimants being the legal representatives of the deceased had approached the learned Tribunal in an application U/S.166 of the Act for compensation by impleading the owner and insurer of the offending bus. The claimants asserted that the deceased was working as a mason (Rajamistri) and was earning a sum of Rs.18,000/- per month and, thereby, they lost the contribution of the deceased.

On the claim of the claimants, MAC Case No.32 of 2022 was registered and notices of the claim were issued to the owner and insurer of the offending Bus, but the owner of the offending Bus did not appear and he was set ex parte, whereas the insurer appeared and contested the claim by filing its written statement denying all the allegations raised against it and inter alia disowning its liability to pay compensation to the claimants on the ground that the deceased was negligent in the accident and the driver of the offending Bus was not having any valid DL.

On the rival pleadings of the parties, the learned Tribunal struck as many as five issues and allowed the parties to lead evidence. Accordingly, the claimants examined two witnesses vide PWs.1 & 2 and proved 9 documents under Exts.1 to 9 as against no evidence whatsoever by the insurer. After appreciating the evidence on record upon hearing the parties, the learned Tribunal passed the impugned judgment directing the insurer to pay the compensation amount indicated supra. Being aggrieved, the insurer has challenged the award in this appeal.

Heard, Mr. Santosh Kumar Mohanty, learned counsel for the appellant and Mr. P.C. Chhinchani, learned counsel for R1 to 6, but none appears for R7-cum-owner of the offending Bus despite valid notice of the appeal.

After having considered the rival submissions upon perusal of record, the main challenge of the insurer is to the quantum of compensation by advancing the plea of contributory negligence, in addition to the other grounds of claim to be not maintainable, however, on scrutiny of evidence; it appears that the claimants have not only adduced oral evidence, but also documentary evidence, which unambiguously go to disclose that the deceased had died in the accident and the accident occurred due to rash and negligent driving of the driver of the offending Bus. It is no doubt advanced by the insurer that the deceased had contributed to the accident and, thereby, he is guilty of contributory negligence, but neither any such plea was taken by the insurer in its written statement nor had it adduced any evidence to establish such plea, however, the learned counsel for the insurer has highlighted the evidence of PW2 to claim contributory negligence. On a careful scrutiny of the police papers exhibited in evidence, it reveals that charge-sheet has been submitted against the driver of the offending Bus and he is, thereby, prima facie guilty of negligence, but nothing has been stated in such police papers about the deceased being negligent in driving his motor cycle. Further, no evidence whatsoever has been adduced by the insurer to establish that the deceased was negligently riding the motor cycle.

It is no more res integra that in order to constitute contributory negligence, the person raising such contributory negligence has to plead and establish by way of evidence that the other side was the guilty of negligence or has contributed to such accident. On a cumulative consideration of evidence available on record together with pleadings of the parties, nowhere it is stated or found that the deceased was rash and negligent in riding his motor cycle and he contributed to the accident, rather the evidence clearly suggests that the driver of the offending Bus was rash and negligent and he, thereby, caused accident by driving the offending Bus in rash and negligent manner and, therefore, the plea as advanced by the insurer against the deceased for contributory negligence merits no consideration and is, accordingly, rejected.

Once it is found that the deceased died in a motor vehicular accident due to rash and negligent driving of the offending Bus, the owner of the said offending Bus is liable to pay the compensation against third party risk, but since the insurer is contractually liable to indemnify the owner, the liability of paying compensation should be borne by the insurer and, therefore, the insurer in this case has seriously disputed the quantum of compensation by contending inter alia that the deceased was not a mason nor was he earning so much amount as assessed by the learned Tribunal. On this issue, it is not disputed that the learned Tribunal in absence of any reliable evidence has taken the daily wages for the deceased as the basis of computation of compensation and, accordingly, the learned Tribunal has taken the daily wage for an unskilled labourer prevailing then at Rs.315/- per day, however, it is not disputed that the deceased died on 31.01.2022, but the minimum wages prevailing at that time was w.e.f. 01.10.2021 till 31.03.2022 and, therefore, this Court without taking the minimum wage considers it proper to take the notional income of the deceased @ Rs.9,000/- per month for the purpose of computing the loss of dependency for the claimants and, accordingly, the annual income of the deceased would come around Rs.1,08,000/-, but adding 25% to such income of the deceased by applying the principle as laid down by the Apex Court in National Insurance Company Limited Vrs. Pranay Sethi and others; (2017) 16 SCC 680, it would come around Rs.1,08,000/- + Rs.27,000/- (25% of Rs.1,08,000/-) = Rs.1,35,000/-. Since the deceased was having six dependents, 1/4th is required to be deducted towards his personal and living expenses and deducting such amount, the net yearly contribution of the deceased to his family would come around Rs.1,35,000/- - Rs.33,750/- (1/4th of Rs.1,35,000/-) = Rs.1,01,250/- and applying 14 multiplier to this amount, since the deceased was 45 years at the time of his death, the loss of dependency of the claimants would come around Rs.1,01,250/- x 14 =Rs.14,17,500/-, and an addition of Rs.70,000/- to this amount towards reasonable figure of conventional heads as prescribed under Pranay Sethi (supra), the net compensation amount for the claimants would come around Rs.14,17,500/- + Rs.70,000/- = Rs.14,87,500/-. In addition, the claimants are also entitled to simple interest @ 6% per annum on the aforesaid amount.

In the result, the appeal stands allowed in part on contest against the claimants-R-1 to 6, but ex parte against the owner-R7, however, there is no order as to costs. Consequently, the impugned judgment is modified to the extent indicated above and the insurer is directed to pay the modified compensation amount of Rs.14,87,500/- to the claimants together with simple interest @ 6% per annum w.e.f. 23.02.2022 till its actual realization within eight weeks hence. In case of deposit of the modified compensation amount, the same shall be disbursed to the claimants-R-1 to 6 proportionately in terms of the award of the learned tribunal and the statutory deposit together with the accrued interest thereon be refunded back to the insurer on production of proof of deposit of such modified compensation before the tribunal.