National Insurance Company Ltd. represented by officer-in-charge, Orissa Legal Cell, Cuttack vs Jhumi Bagh @ Nayak And Others

Dr. A.K.Rath, J

The insurer challenges the award dated 30.8.2018, passed by the learned Addl. District Judge-cum-4th Motor Accident Claims Tribunal, Angul,

whereby learned Tribunal awarded an amount of Rs.12,12,400/- and directed the insurer to pay the same with interest @6% per annum from the date

of filing of the claim application, failing which, the same will carry additional interest @1%.

One Sanjay Nayak died in a motor vehicle accident. His widow and parents field an application u/s.166 of the Motor Vehicles Act before the

tribunal claiming compensation of Rs.15,00,000/-. The case of the claimants was that on 11.9.2016 at 11 PM, while Sanjay was going from

Khandahata to Chheliapada on the extreme left side of the road, a truck bearing registration no.OR-05-R-0929 came from back side in a high speed

and dashed against him, as a result of which, he succumbed to the injuries on the spot. The deceased was aged about 24 years at the time of accident.

He was the owner of Tata Magic car. He was earning Rs.10,000/- per month.

The opposite party no.1-owner of the offending vehicle filed written statement stating that the vehicle was validly insured with opposite party no.2.

Opposite party no.2, insurer of the vehicle entered their appearance and filed written statement denying liability. It was stated that the deceased

was going on a motorcycle bearing registration no.OR-19-K-6704 in a high speed and dashed against the back side of the truck, which was parked on

the extreme left side of the road. He contributed to the accident.

Stemming on the pleadings of the parties, learned Tribunal framed four issues. To substantiate the case, the claimants had adduced evidence, oral

and documentary. On behalf of insurer the voter list has been exhibited as Ext.A. On an assessment of evidence and pleadings, learned Tribunal came

to hold that Sanjay died due to rash and negligent driving of the driver of the offending truck. It calculated the daily wage of a labourer @ Rs.200/-.

Deducting 1/3rd from the same towards personal expenses, it added 40% towards future prospect, applied multiplier of ‘17’ calculated

compensation at Rs.12,12,400/- and directed the insurer to pay the same with 6% interest per annum from the date of filing of the claim application.

Criticizing the award, Mrs. P. Pattnaik on behalf of Mr. S.R. Pattnaik, learned counsel for the insurer submits that the truck was parked on the

extreme left side of the road. The deceased was riding a motorcycle and dashed against the truck. The father of the deceased admitted that the truck

was parked on the extreme left side of the road in the statement recorded u/s.161 of Cr.P.C. P.W.1-wife of the deceased had stated that she had not

filed any certificate with regard to the age and income of the deceased.

Learned Tribunal committed a manifest illegality in adding 40% towards future prospect and calculated the compensation on mere surmises and

conjectures.

Per contra, Mr. Rath, learned counsel for the claimants submits that due to rash and negligent driving of the driver of the truck the accident took

place. Though the claimants had stated that deceased was the owner of the Tata Magic car, but then learned Tribunal disbelieved the same and

calculated the compensation taking into account the daily income of the deceased at Rs.200/-. At the relevant point of time, a labourer was getting

Rs.200/- per day. Since deceased was self-employed person, learned Tribunal had rightly added 40% towards future prospect. The driver of the truck

was charge-sheeted. Furthermore, P.W.2, who was an eyewitness, had stated that due to rash and negligent driving of the driver of the truck, the

accident took place.

The FIR was lodged by the father of the deceased. From the photostat copy of the FIR filed by the counsel for the respondent no.2 in Court today,

it is evident that when deceased was walking on the road. The truck bearing registration no.OR-05-R-0929 came in a high speed and dashed against

him. No witness was adduced by the insurer to rebut the same. While answering Issue No.2, learned Tribunal came to hold that the accident took

place due to rash and negligent driving of the driver of the truck. There is no illegality or perversity in the said findings. Learned Tribunal assessed the

income of the deceased at Rs.200/- per day. It deducted 1/3rd from the same towards personal expenses of the deceased and added 40% towards

future prospect. Since deceased was 29 years at the time of his accidental death, learned Tribunal applied multiplier of ‘17’ and calculated the

compensation. But then, learned tribunal committed error in awarding default interest @1%.

In view of the foregoing discussions, the insurer is directed to deposit Rs.12,12,400/- with interest @ 6% per annum from the date of filing of the

claim application. The appeal allowed in part.

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