SRI K. RAMACHANDRAIAH vs. THE COMMISSIONER OF INCOME TAX

ORISSA HIGH COURT :: CUTTACK

A.H.O. NO. 73 OF 2000

In the matter of an appeal under Section 10 of Letters Patent of Patna High Court read with Article 4 of the Orissa High Court Order, 1948 from the judgment dated 28.03.2000 passed by the learned Single Judge in M.A. No. 657 of 1994. --------------

The New India Assurance Co. Ltd. ……… Appellant

Versus

Manju M. Tank and others

……… Respondents

For Appellant : M/s. S.S. Rao, B.K. Mohanty,

N.B. Panda and S. Patra ,

Advocates

For Respondents : M/s R.N. Mohanty, B.N. Rath

and M.K. Panda, Advocates

[R-1 to 5]

PRESENT:

THE HON’BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON’BLE DR. JUSTICE B.R.SARANGI

DECIDED ON : 10.07.2018 DR. B.R. SARANGI, J. This is an intra-Court appeal filed by the appellant-insurance company, challenging the judgment dated 28.03.2000 passed by the learned Single Judge in M.A. No. 657 of 1994, enhancing the amount of compensation

2 from Rs.80,000/- to Rs.2,00,000/- by modifying the judgment dated 25.07.1994 passed by the learned Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No.1187 of 1990.

The factual matrix of the case, in hand, is that respondents no. 1 to 5, who are the legal representatives of deceased Manilal Daya, filed an application under Section 166 of the Motor Vehicle Act, 1988 before the Second Motor Accident Claims Tribunal, Cuttack registered as Misc. Case No. 1187 of 1990 claiming compensation of Rs.4,50,000/- due to death of the deceased caused by an accident on 22.09.1990 at about 5.30 a.m., while he was walking on the left side of the road near Ambika Hotel on Pilgrim Road, Cuttack, by the truck bearing registrant no. ORR 402. At the time of accident, the deceased was a contractor and owner of a dairy firm and his contribution to his family was Rs.3000/- per month. 3.

Pursuant to notice issued by the Tribunal, the owner of the truck did not contest the proceeding and set ex- parte. However, the appellant filed its written statement

3 denying generally the allegations made in the claim petition, but admitted that the offending vehicle was insured with the appellant. On the basis of the pleadings available on record, the Tribunal framed as many as four issues. Two witnesses were examined from the side of the claimants and none was examined on behalf of the appellant. The documents adduced on behalf of the claimants were marked as Exts.1 to 3 and the only document filed by the appellant was marked as Ext.- A. After considering the materials available on record and examining the evidence of the witnesses, the Tribunal directed for payment of Rs.80,000/- as compensation to the claimants with interest @ 6% per annum from the date of institution of the case, i.e., from 01.12.1990 till payment. 4.

The claimant-respondents, being aggrieved by the award dated 25.07.1994 passed by the Tribunal, filed Misc. Appeal No. 657 of 1994 before this Court for enhancement of the amount of compensation. The learned Single Judge on consideration of the materials available on record and taking note of the age of the deceased, so also his annual contribution to the family at the time of accident, came to

4 hold that multiplier of 13 would be just and proper in the circumstances of the case, and accordingly taking into consideration the fact, that the Tribunal had awarded a sum of Rs.7000/- towards the loss of consortium and nothing was awarded towards funeral expenses and loss of estate, enhanced the amount of compensation to Rs.2,00,000/- from Rs.80,000/- as awarded by the Tribunal. The said judgment of the learned Single Judge has been assailed in the present intra-Court appeal by the appellant.

Mr. S.S. Rao, learned counsel appearing for the appellant states that the learned Single Judge has committed grave error in awarding an excess amount of Rs.1,20,000/- as against the compensation of Rs.80,000/- awarded by the Tribunal. It is further contended that such direction has been given, without considering the income tax returns- Ext.1 and Ext.1/1 and without ascertaining the share of the deceased in the firm-M/s. Shivaji Constructions, and as such the enhancement of amount of compensation from Rs.80,000/- to Rs.2,00,000/- and direction for payment of Rs.1,20,000/-

5 cannot sustain in the eye of law and the same has to be set aside. 6.

On analysis of the materials available on record, learned Single Judge in paragraph 8 of the impugned judgment has elaborately dealt with the circumstances under which the amount of compensation has been enhanced from Rs.80,000/- to Rs.2,00,000/-. As is evident, the learned Single Judge took note of Ext.1, the order of assessment for the year 1990-91 in which the income was shown as Rs.18,000/-, and Ext.1/1 in which the income was shown as Rs.4,900/-, and came to hold that the fact that Ext.1/1 relates to a part of the year, as deceased died in between and return was filed on 01.07.1992, and that the evidence of widow of the deceased to the effect that the deceased was a railway contractor and he had a poultry firm, have not been taken into consideration by the Tribunal in proper perspective. Thereby, the learned Single Judge, after due adjudication, enhanced the amount of compensation from Rs.80,000/- to Rs.2,00,000/- and directed the appellant- insurance company to pay balance amount of Rs.1,20,000/-

6 by end of May, 2000, failing which interest @ 12% per annum will be charged. 7.

On perusal of the record, it reveals that vide order dated 25.07.2008, when the intra-Court appeal was admitted, this Court directed the appellant-insurance company to deposit a sum of Rs.1.00 lakh out of the decretal amount as per judgment and order of the learned Single Judge and the claimant-respondents would be entitled to the same after furnishing security, other than cash and bank guarantee, to the satisfaction of the Tribunal. Mr. S.S. Rao, learned counsel appearing for the appellant states that in compliance of the same, the amount has been deposited. Since the learned Single Judge has come to a definite finding and assigned reason with regard to enhancement of compensation amount from Rs.80,000/- to Rs.2,00,000/- and directed payment of balance amount of Rs.1,20,000/- and mode of deposit of the amount has already been indicted in the said order at paragraph 6, after long lapse of more than 28 years from the date of occurrence, this Court is not inclined to interfere with the impugned judgment and order

7 passed by the learned Single Judge and, on the other hand, directs the appellant to comply with the same as expeditiously as possible, preferably within a period of six weeks hence. 8.

In the result therefore, this intra-Court appeal merits no consideration and is hereby dismissed. No order as to cost.

Sd/-

VINEET SARAN, CHIEF JUSTICE

Sd/-

DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 10th July, 2018, GDS/Ajaya

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