NEW INDIA ASSURANCE CO.LTD. vs BIRSING SAGARIA

Court
Odisha High Court


IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA NO.851 of 2018

CNR No. ODHC010424222018
(An appeal Under Section-173 of M.V. Act, 1988).

The New India Assurance
Company Ltd.
… Appellant

-versus-
Birsingh Sagaria & Others Respondents
…



For Appellant : Mr. A.A. Khan, Advocate

For Respondents : Mr. D. Mund, Advocate (R-1 to
R-4)
None (R-5)
CORAM: JUSTICE G. SATAPATHY




DATE OF HEARING & JUDGMENT: 02.11.2026 (ORAL)

G. Satapathy, J.

1. This is an appeal U/S.173(1) of the Motor
Vehicles Act, 1988 (In short “the Act”) by the New India
Assurance Co. Ltd. (in short “the insurer”) assailing the
impugned judgment dated 05.04.2018 passed by learned
st
1 MACT, Koraput at Jeypore in MAC Case No.73 of 2017
directing the insurer to pay a sum of Rs.10,21,000/-
together with Simple Interest (SI) @ 7% per annum
w.e.f.21.06.2017 till its realization to the
claimants/Respondent Nos.1 to 4 herein towards
compensation for the loss of their sole bread earner-cum-
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Chandri Sagaria, who died in the accident in an
application U/S.166 of the Act.
2. The facts being largely undisputed is not
reiterated in extenso, but reproduced in brief for disposal
of this appeal which traces its origin to an accident which
took place on 09.01.2017 at about 6.30PM when the Auto
Rickshaw bearing Regd. No.OD-10-8414 in which the
deceased was traveling was allegedly hit at Baipariguda
Ramgiri road near river bridge by one trolly Auto bearing
Regd. No.OD-10F-2268 (in short the “the offending
vehicle”) resulting in death of the deceased. An FIR being
filed on this accident came to be registered Baipariguda
PS Case No.02 of 2017 which culminated in submission of
charge-sheet against the driver of the trolly Auto for rash
and negligent driving of the said vehicle. Upon a claim
being preferred by the dependents of the deceased, the
same was registered in MAC Case No.73 of 2017 wherein
the tribunal proceeded by issuing notice to the owner and
insurer of trolly Auto-cum-offending vehicle, but although
the owner of the offending trolly Auto appeared in the
MACA No.851 of 2018
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claim, but neither he filed any written statement nor did
participate in the hearing and he was accordingly, set ex-
parte, whereas the insurer of the offending trolly Auto
contested the claim by filing written statement denying
inter alia its liability and specifically taking the plea of
contributory negligence by both the vehicles. The learned
tribunal, however, allowed the parties to led evidence,
but the claimants examined one witness only and relied
upon the police papers under Ext.1 to 8 in support of
their claim against no evidence whatsoever by the
insurer. The tribunal, however, granted compensation to
the claimants indicated supra , but being aggrieved with
the impugned judgment granting compensation to the
claimants, the insurer has preferred this appeal to
challenge the impugned judgment mainly on the ground
of contributory negligence of both the vehicles.
3. Heard, Mr. Adam Ali Khan, learned counsel for
the appellant-insurer and Mr. Dhananjay Mund, learned
counsel for R-1 to R-4 in the matter and perused the
record. None appears for R-5 despite duly noticed.
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4. After having considered the rival submissions
and upon perusal of record, it appears that the learned
tribunal by duly appreciating the evidence on record has
returned with a finding that the accident occurred due to
rash and negligent driving of the driver of the offending
trolly Auto, but in the course of hearing, Mr. Khan,
learned counsel for the Insurer has stoutly taken the plea
of composite negligence and thereby, critically attacking
the impugned judgment for solely holding the insurer of
the offending trolly Auto liable to pay the compensation,
instead of shifting the liability of 50% each on both the
vehicles, however, Mr. Mund, learned counsel for the
claimants-respondents has relied upon the decision in
Khenyei Vrs. New India Assurance Co. Ltd. & Ors.;
(2015) 9 SCC 273 wherein the Apex Court at paragraph
no.22 has recorded its conclusion which reads as under: -
“22.1. In the case of composite negligence,
plaintiff/claimant is entitled to sue both or
any one of the joint tortfeasors and to
recover the entire compensation as liability
of joint tortfeasors is joint and several .
22.2. In the case of composite negligence,
apportionment of compensation between two
tortfeasors vis a vis the plaintiff/claimant is not
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permissible. He can recover at his option
whole damages from any of them .
22.3. In case all the joint tortfeasors have been
impleaded and evidence is sufficient; it is open to
the court/tribunal to determine inter se extent of
composite negligence of the drivers. However,
determination of the extent of negligence between
the joint tortfeasors is only for the purpose of
their inter se liability so that one may recover the
sum from the other after making whole of
payment to the plaintiff/claimant to the extent it
has satisfied the liability of the other. In case both
of them have been impleaded and the
apportionment/extent of their negligence has been
determined by the court/tribunal, in main case
one joint tortfeasor can recover the amount from
the other in the execution proceedings.
22.4. It would not be appropriate for the
court/tribunal to determine the extent of
composite negligence of the drivers of two
vehicles in the absence of impleadment of other
joint tortfeasors. In such a case, impleaded joint
tortfeasor should be left, in case he so desires, to
sue the other joint tortfeasor in independent
proceedings after passing of the decree or award.”

5. On conscious application of the law laid down
by the Apex Court in Khenyei (supra) to the facts of the
present case, there appears no escape by the insurer
from the liability to satisfy the award for the owner of the
trolley Auto and it cannot be denied that the claimants
have the option to proceed against any of the two
vehicles, but merely because the claimants have not
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proceeded against the Auto rickshaw in which the
deceased was coming, it would not ipso facto a ground to
reject the claim of the claimants or shift the liability for
discharging the obligation on the Auto rickshaw. It is no
longer res-integra that the claimants are at liberty to
proceed against any of the two vehicles since the
deceased was neither negligent nor had he contributed to
the accident and therefore, the challenge of the insurer to
the impugned judgment seeking for sharing the liability
on both the vehicles appears to be not in consonance with
the law and is liable to be rejected. Accordingly, the plea
as advanced by the appellant in this appeal stands
rejected.
6. On coming to the quantum of compensation, it
appears that the learned tribunal in paragraph 8 has
observed as under: -
“Therefore, taking into consideration the minimum
rate of wage prevalent at that period for unskilled
worker, the notional income of the deceased is
taken at Rs.207.20 paise per day amounting to
Rs.6,216/- per month and taking into
th
consideration the number of dependents, 1/4 of
it, is to be deducted out of the said amount
towards her personal and living expenses as such,
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th
after deducting 1/4 of it, the monthly loss of
dependency comes to Rs.4,662/- and in this way
the annual loss of dependency comes to
Rs.4,662/- X 12 = Rs.55,944/-. Applying the ratio
of Sarla Verma and others -Vrs- Delhi
Transport Corporation and another reported
in 2009 ACJ 1298, the multiplier is found
“17”
suitable to calculate the amount of compensation
in favour of the petitioners and accordingly, the
loss of dependency comes to Rs.55,944/- X 17 =
Rs.9,51,048/- or say Rs.9,51,000/-. Besides this,
the petitioners are also entitled to get
compensation of Rs.40,000/- towards loss of
consortium, Rs.15,000/- towards loss of estate
and Rs.15,000/- for funeral expenses and thus,
the total compensation comes to Rs.10,21,000/”.
7.
In addition, the learned tribunal has also found
the main vehicular documents of the offending Auto valid,
but later on, the learned tribunal finding the offending
vehicle not to have any valid route permit has granted
right of recovery to the insurer from the owner of the
offending vehicle by satisfying the award first. The
aforesaid observation having not disputed by any of the
parties nor the owner having appeared and challenged
such finding, this Court does not consider it proper to
disturb such finding of right to recovery as granted to the
insurer and the insurer is hereby, permitted to recover
the amount by establishing the breach of policy
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conditions independently in a separate proceeding, but
before that, he has to satisfy the award since the insurer
is contractually liable to indemnify the insured. On
coming to the component of interest, which has been
imposed by the learned tribunal on compensation, it is
claimed by the insurer that the grant of SI @ 7% per
annum is on higher side and the learned counsel for the
claimant-respondents having not seriously disputed such
assertion of the insurer, this Court considers that interest
of justice would be best served, if the interest as imposed
on the compensation amount is reduced by one unit and
accordingly, the insurer be held liable to pay SI @ 6% per
annum w.e.f. date of filing of the claim application on the
compensation amount till its actual realization.
8. In the result, the appeal being devoid of merits
stands dismissed, but there is no order as to costs.
Consequently, the impugned judgment is modified to the
extent indicated above with regard to the imposition of
interest only and the insurer is hereby, directed to pay
the compensation amount of Rs.10,21,000/- together
MACA No.851 of 2018
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with Simple Interest @ 6% per annum w.e.f. 21.06.2017
till its actual realization to the claimants-R-1 to 4 within
eight weeks hence. The statutory deposit together with
the accrued interest thereon be refunded back upon
receipt of proof of deposit of compensation amount by the
insurer before the learned tribunal.

(G. Satapathy)
Judge


Orissa High Court, Cuttack,
nd
Dated the 02 November, 2026/Jayakrushna
Signature Not Verified
Digitally Signed
Signed by: JAYAKRUSHNA DASH
Reason: Authentication
Location: High Court of Orissa, Kataka
Date: 03-Nov-2026 17:10:18
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