MACA No. 265 of 2021

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IN THE HIGH COURT OF ORISSA AT CUTTACK

MACA NO.265 of 2021

CNR No. ODHC010468602021

(In the matter of application under Section-173(1) of

M.V. Act, 1988).

Pratignya Khuntia & Ors. … Appellants

-versus-

Kanhu Mohanty & Another … Respondents

For Appellants : Mr. K.C. Nayak, Advocate

For Respondents

: None (OP No.1)

Mr. P.R. Sinha, Advocate on

behalf of Mr.M.Sinha (R-2)

CORAM: JUSTICE G. SATAPATHY

DATE OF HEARING AND JUDGMENT: 14.08.2026

G. Satapathy, J.

1. This is an appeal U/S.173(1) of the Motor

Vehicles Act, 1988 (In short “the Act”) by the

appellants-claimants assailing the impugned judgment

dated 31.03.2021 passed by Second Motor Accident

Claims Tribunal, Cuttack (in short “the tribunal”) in

Misc. Case No.216 of 2016 directing the Respondent

No.2-cum-Insurance company (In short “the insurer”)

to pay a sum of Rs.1,51,573/- together with interest @ MACA/265/2021

ODHC010468602021

2026:OHC:33

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7% per annum w.e.f. 05.04.2016 till its realization to

the claimants-appellants.

2. Briefly stated, on 25.09.2015 at about

7.00PM one Ajay Kumar Khuntia (hereinafter referred

to as “the deceased”) met with an accident after being

hit by an Auto Rickshaw bearing Regd. No. OR-05-AU-

2531 (hereinafter referred to as “offending Auto

Rickshaw”) resulting him to be shifted to the hospital

for treatment. According to the claimants-appellants;

due to rash and negligent driving of the driver of the

offending Auto Rickshaw, the accident took place and

the deceased died while undergoing treatment out of

the injuries sustained by him in the accident. The

accident was in fact reported to the police ultimately

ending with registration in Marshaghai PS Case No.257

of 2015 which culminated in submission of charge-

sheet against the accused driver- Benudhara Patra for

commission of offences punishable U/S.279/304(A) of

IPC. According to the claimants, the deceased was

running a Hotel and was contributing to his family out

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of the earning from the hotel. On the aforesaid

averments, the claimants approached the learned the

tribunal in an application U/S.166 of the MV Act for

compensation of Rs.10,00,000/- by impleading the

owner and insurer of the offending vehicle. The

aforesaid application was registered as Misc. Case

No.216 of 2016.

2.1. In response of the notice of Misc Case

No.216 of 2016, the owner of the offending vehicle did

not appear and was accordingly set ex-parte, whereas

the insurer contested the claim by filing written

statement denying all the averments made in the claim

application and inter alia disowning its liability on

various grounds including the ground of the offending

vehicle plying in an area without any route permit. On

the aforesaid averments, the insurer has prayed to

dismiss the claim.

3. On the rival pleadings of the parties, the

learned tribunal framed as many as four issues and

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allowed the parties to lead evidence. In order to

establish their claim, the claimants-appellants

examined three witnesses and proved nine documents

under Ext.1 to 9 as against no evidence whatsoever by

the insurer. After appreciating the evidence upon

hearing the learned counsel for the parties, the learned

tribunal by the impugned judgment has allowed the

claim application for the injuries sustained by the

deceased, but not for his death in a motor vehicular

accident and accordingly, the learned tribunal granted

compensation of Rs.1,51,573/- together with interest

indicated supra. Being aggrieved with the findings and

quantum of compensation, the appellants are before

this Court in this appeal.

4. Heard, Mr. Kapila Charan Nayak, learned

counsel for the appellants and Mr. Pratyush Ranjan

Sinha, learned counsel appearing on behalf of

Mr.M.Sinha, learned counsel for the insurer and

perused the record, but none appears for the

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Respondent No.1-cum-owner of the offending vehicle

despite being duly noticed.

5. After having considered the rival

submission upon perusal of record, this Court considers

it proper to take the primary objection as raised by the

learned counsel for the insurer to the effect that the

claim is not maintainable at the threshold, but the

insurer has never challenged the same by filing any

independent appeal or cross-objection and in absence

of any valid challenge by the insurer, the same cannot

be considered as a ground to dismiss the claim of the

Appellants-claimants for compensation. It is further

found from the record that the claimant-Appellants

have not only filed the claim application for

compensation towards the death of their sole bread

earner, but also have led evidence which could not be

demolished in cross-examination by the insurer

inasmuch as even no suggestion was given to infer that

the accident had not taken place, rather the insurer had

only challenged to the fact that the vehicle in question

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was planted. On the other hand, the Appellants have

also examined independent witnesses to establish that

the accident had taken place and such accident was

due to rash and negligent driving of the driver of the

offending Auto Rickshaw. From a cumulative

consideration of pleading and evidence, there appears

no dispute that the accident had taken place and the

deceased had suffered injuries in the accident, but the

learned tribunal in the impugned judgment has

considered that the death of the deceased was not on

account of injuries, which is the main challenge by the

Appellants-claimants.

6. The learned tribunal albeit has found the

offending vehicle to be rash and negligent, but did not

find the death of the injured/deceased to be on account

of injuries sustained by him in the vehicular accident.

According to the learned tribunal, this issue has two

components; one is injuries to the deceased in the

accident due to rash and negligent driving of the driver

of the Auto Rickshaw and the other one is death of the

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deceased on account of injuries sustained by him in the

accident, but the learned tribunal has in fact answered

the second component in negative against the

Appellants by holding that the injuries sustained by the

deceased was on account of accident, which was never

challenged by the insurer or the owner of the offending

vehicle. In the situation, this Court wants to re-examine

the finding of the learned tribunal which is the death of

the deceased, since the learned tribunal has held that

the claimants have failed to prove that the deceased

died because of the injuries sustained by him in the

vehicular accident, but the PM Report of the deceased

amply discloses that the cause of death of the deceased

was for respiratory failure due to Septicemia as a result

of prolong treatment and the manner of death was

opined by the Doctor to be natural on account of

accident in past which finding has never been

challenged by the insurer or owner of the offending

vehicle in the tribunal, rather the evidence adduced by

the claimants-Appellants reveals that the death was on

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account of injuries sustained by the deceased in the

vehicular accident.

7. It is also not in dispute that the driver of the

offending vehicle was charge sheeted for offence U/S.

304(A) of IPC and other offences which speaks about

causing death by negligence. It is also settled in the

law, more particularly in motor vehicular accident cases

that once a charge sheet has been filed and the driver

has been held negligent for causing death to the

deceased, no further evidence is required to prove that

the driver was negligently driving the offending vehicle

to cause death of the deceased. Even the eye witnesses

are not examined, that would not be fatal to prove the

death of the deceased due to negligence of the

offending vehicle. In view of the aforesaid facts and on

a cumulative appreciation of evidence, both oral and

documentary and in absence of any evidence contrary

to hold that the death was not due to injuries sustained

by the deceased in the motor vehicular accident, this

Court is of the considered opinion that deceased died

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due to injuries sustained by him in motor vehicular

accident and the tribunal has manifestly erred in law in

holding that the deceased did not die due to injuries

sustained by him in motor vehicular accident.

8. Once the death of the deceased was held

to be due to injuries sustained by him in motor

vehicular accident, the next question comes for is the

determination of compensation, but the learned tribunal

believing the injuries sustained by the deceased in the

motor vehicular accident has granted compensation for

the injuries sustained by the deceased, but not for the

death of the deceased and thereby, an occasion arises

for remitting the matter to the tribunal for

determination of the compensation payable to the

claimants afresh, however, looking to the fact that the

accident had occurred in the year 2015 and now we are

in 2026, this Court considers it appropriate to

determine the compensation by considering the

evidence available on record. In determining the

compensation to the claimants, it appears that a

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calculation sheet has been provided by the claimants-

Appellants and it is requested therein to take the

income of the deceased notionally @ Rs. 200/- per day

and thereby, the notional monthly income of the

deceased would come around Rs. 5,200/- by excluding

the four holidays in a month and thus, the annual

income of the deceased would come around by adding

25% future prospects (Rs. 5,200 + 25% of Rs. 5,200/)

X 12= Rs. 78,000/- (Rupees Seventy Eight Thousand)

and since the deceased was survived by four

dependants, after deducting 1/4

th

towards the personal

and living expenses of the deceased, the net annual

dependency of the Appellants-claimants would come to

3/4

th

of Rs. 78,000/- = Rs. 58,500/-. Since the

deceased was found to have died at the age of 52 years

as per the Post mortem report, applying the multiplier

of 11, the loss of dependency of the Appellants-

claimants would come around Rs. 58,500 X 11 = Rs.

6,43, 500/-. Adding to this amount, Rs. 70,000/- with

three enhancements @ 10% for each enhancement in

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every three years, the amount under non-pecuniary

head of damages towards funeral expenses , damages

and love & affection, the net amount would come to Rs.

6,43,500/- + Rs. 91,000/- = Rs. 7,34,500/-. Since the

deceased had spent Rs. 1,11,000/- towards his

treatment, which was proved by the claimants-

Appellants under Ext. 8, the same needs to be added.

Besides, the deceased had remained as an indoor

patient for around 14 days in Ashwini Hospital which is

proved through Ext. 9 and the deceased, thereafter,

remained alive for approximately for 110 days in his

house, a lump sum Rs. 35,000/- is awarded under the

heading of Medicine and Special diet for the deceased

for these periods and, therefore, the net compensation

amount would come around Rs. 6,43,500/- + Rs.

91,000/- + Rs. 1,11,000/- + Rs. 35,000/- =Rs .

8,80,500/-.

9. The next question definitely comes for

determination is who is liable to pay this amount to the

claimants, but the learned Tribunal has directed the

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insurer to pay the compensation and recover the same

from the owner in due process of law, however, such

finding is not backed by any legal admissible evidence

inasmuch as the insurer has neither adduced any

evidence nor it produced any valid documents before

the learned tribunal to prove violation of terms and

conditions of policy. No doubt, the learned tribunal has

arrived at said conclusion by taking into account the

Xerox copy of the route permit of the offending vehicle

which was not at all admissible in evidence inasmuch as

when the best evidence is available, how come the

learned tribunal took into consideration the secondary

evidence which was not permissible in law. Additionally,

Xerox copy of a document is not admissible, unless the

grounds for admitting such evidence are satisfied by

the party seeking admission of such document in

evidence. What is most significant is that the learned

tribunal has not considered the Xerox copy of the

permit as secondary evidence, but by only looking at

the face of such document, it has come to a conclusion

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of violation of policy conditions for plying of the

offending vehicle in an unauthorized place. Besides, the

photo copy of a document is also prone to

manipulation, but no evidence was tendered by the

insurer to suggest that the said document was in fact a

genuine one. Further, the insurer has not made out a

case for leading secondary evidence. Additionally, the

route permit of the offending vehicle must be available

with the concerned RTO Office, which the insurer could

have brought on record by summoning the concerned

document. It, therefore, appears that the learned

tribunal has proceeded to decide the issue on wrong

assumption of law and by erroneously applying the

principle to hold that the insured has violated the terms

and condition of the policy for allowing the offending

vehicle in an unauthorized place and, thereby, such

finding of the learned tribunal being contrary to the law

cannot sustain and is liable to be set aside. In such

situation and in absence of any evidence, this Court

does not consider it proper to hold that that the insured

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has violated the policy conditions and, therefore, the

insurer being contractually liable to indemnify the

insured is, accordingly, directed to pay the

compensation amount to the claimants. Hence, the

appeal deserves to be allowed and the insurer is liable

to pay the compensation of Rs. 8,80,5 00/- to the

claimants-Appellants together with interest @ 6% per

annum w.e.f the date of filing of the claim application

i.e. on 05.04.2016 till its realization to the claimants.

10. Resultantly, the appeal is allowed and the

impugned judgment passed by the learned tribunal is

modified to the extent indicated above, but in the

circumstances, there is no order as to costs. The

respondent-insurance company is, hereby, directed to

pay Rs. 8,80,500/- together with interest as indicated

to the claimants-Appellants within eight weeks hence

and in case of deposit of such modified compensation

amount before the learned tribunal, the same shall be

disbursed to the claimant-appellant Nos. 2 to 4 in equal

proportion by keeping 75% of it in fixed deposit in

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nationalized bank for three years, since Appellant No.1

has died in the meantime and her name is deleted from

the appeal memo.

(G. Satapathy)

Judge

Orissa High Court, Cuttack,

Dated the 14

th

day of August, 2026/Priyajit