NEW INDIA ASSURANCE CO. LTD. vs AJAY KUMAR SINHA

IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.919 of 2023

CNR No. ODHC010781172023

(An Appeals U/S.173(1) of Motor Vehicles Act, 1988).

Ajay Kumar Sinha and another Appellants
…

Mr. P.C. Pattanaik, Advocate
-versus-
Jayadeb Nanda and another Respondents
…

Mr. M. Sinha, Advocate (R-2)
MACA No.748 of 2023
CNR No. ODHC010598292023



New India Assurance Co. Ltd.,
Jajpur
Appellant
…

Mr. M. Sinha, Advocate

-versus-

Ajay Kumar Sinha and others … Respondents

Mr. P.C. Pattanaik, Advocate (R-1 & 2)


CORAM: JUSTICE G. SATAPATHY


DATE OF HEARING & JUDGMENT:10.11.2026 (ORAL)


G. Satapathy, J.

1. These two Appeals U/S.173(1) of the Motor
Vehicles Act, 1988 (In short, “the Act”) are directed
against the same impugned judgment dated
08.05.2023 passed by learned First Motor Accident
Claims Tribunal, Jajpur (In short, “the Tribunal”) in MAC
Case No.206 of 2017.

MACA Nos.919 & 748 of 2023 Page 1 of 10

1.1. By the impugned judgment, the learned
Tribunal directed the New India Assurance Co. Ltd. (In
short, “the Insurer”) to pay a sum of Rs.7,90,400/-
together with simple interest @ 6% per annum w.e.f.
the date of filing of claim application on 22.12.2017 till
actual realization to the claimants, with default interest
@ 9% per annum, if the compensation is not paid
within three months of passing of the impugned
judgment.
2. The facts in this case, being largely
undisputed are not reiterated in extenso, but it is
reiterated in precise for disposal of these two Appeals
which trace its origin to an accident that occurred on
22.10.2014 at about 4 PM, when the Motorcycle
bearing Regd. No. OD-04-D-1702 (hereinafter referred
to as “the offending Motor cycle”) in which one Sajan
Kumar Sinha
(hereinafter referred to as “the
deceased”) was proceeding as a pillion rider, dashed
against a road side parked Fire Brigade Van bearing
Regd. No. OD-05-C-4485 resulting in death of the
deceased. An FIR being filed on this accident came to

MACA Nos.919 & 748 of 2023 Page 2 of 10

be registered at local Police Station paving the way for
commencement of investigation, which resulted in
submission of Final Form.
2.1. Upon a claim being filed on this accident by
the LRs of the deceased, the learned Tribunal
proceeded in the matter by issuing notice to the owner
and insurer of the offending Motor cycle, but the owner
of the offending Motor cycle being impleaded as party
to the claim has filed written statement admitting the
ownership of the Motorcycle and the accident with
further plea that since his Motorcycle was insured with
the insurer, it is the insurer to satisfy the award by
paying the compensation amount to the claimants. On
the other hand, the insurer has filed its written
statement denying all the allegations leveled against it
and inter-alia disowning its liability to pay
compensation to the claimants on technical grounds.
3. On the interse pleadings of the parties, the
Tribunal has framed necessary issues and allowed the
parties to lead evidence, but the claimants have
adduced evidence by examining two witnesses and
MACA Nos.919 & 748 of 2023 Page 3 of 10

producing seven documents under Exts.1 to 7 in
support of their claim as against two documentary
evidence of copy of FIR and copy of Final Form of the
Police Case by the insurer to refute the claim of the
claimants. On conclusion of inquiry, the learned
Tribunal after appreciating the evidence on record upon
hearing the parties has passed the impugned judgment
granting compensation to the claimants indicated
supra . Being aggrieved with the quantum of
compensation, the claimants have preferred Appeal in
MACA No.919 of 2023, whereas the insurer has
preferred Appeal in MACA No.748 of 2023 to challenge
not only the quantum, but also the liability to pay
compensation to the claimants.
4. Heard, Mr. Padma Charan Pattanaik, learned
counsel for the claimants and Mr. Mahitosh Sinha,
learned counsel for the insurer in both the Appeals, but
none appears for the owner of the offending Motor
cycle despite being duly noticed.

MACA Nos.919 & 748 of 2023 Page 4 of 10

5. After having considered the rival submissions
and upon perusal of record, no doubt the insurer has
challenged the liability of paying compensation to the
claimants by contending inter-alia that since there was
head-on collision between the offending Motor cycle
and the Fire Brigade Van in question, the liability of
paying compensation should be apportioned in the ratio
50:50 on both the Motor cycle and the Fire Brigade
Van, but law in this regard has been made very clear in
Khenyei Vrs. New India Assurance Co. Ltd. & Ors.;
(2015) 9 SCC 273 wherein at paragraph no.22, the
Apex Court 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 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
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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
Motor cycles 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.”

6. It is, however, found from the record that the
claimants have not only adduced oral evidence, but also
documentary evidence to suggest that the death of the
deceased was due to rash and negligent riding of the
Motorcycle by its rider and once it is established that
the deceased died due to negligence of the offending
Motor cycle, the owner of such Motor cycle is liable to
pay the compensation to the claimants, but the

MACA Nos.919 & 748 of 2023 Page 6 of 10

insurance policy of the offending Motor cycle having
admittedly found to be with the insurer, it is the insurer
who is contractually liable to indemnify the insured and,
thereby, the learned Tribunal has not committed any
illegality in saddling the liability of paying compensation
on the insurer-cum-New India Assurance Co. Ltd.
Accordingly, this Court does not find any convincing
and cogent ground to disturb the findings of the learned
Tribunal with regard to the deceased dying due to rash
and negligent act of the rider of the Motorcycle and the
liability of paying compensation to the claimants to be
on the insurer.
7. On turning to the quantum of compensation,
this Court does not find any error in the finding of the
learned Tribunal inasmuch as, since the deceased was
admittedly found by the learned Tribunal to be a daily
wage earner in absence of any evidence, his notional
income was rightly taken at Rs.150/- per day as a
unskilled wage earner, but it is claimed by the
claimants that the deceased was a mason and, thereby,
he being a skilled labourer, his monthly income ought
MACA Nos.919 & 748 of 2023 Page 7 of 10

to have been taken by the learned Tribunal @
Rs.15,000/- per month, but no concrete and reliable
evidence was adduced by the claimants qua the
profession and income of the deceased and, thereby,
the finding of the learned Tribunal with regard to the
income of the deceased at Rs.150/- per day as taken
by the Tribunal could not be validly disputed or
assailed. On a careful scrutiny of the computation of
compensation as done by the learned Tribunal, it
appears that only there appears some error with regard
to extending the benefit under non-pecuniary head. At
this stage, upon a comprehensive and consensus-
seeking exercise with the learned counsel appearing for
the parties, this Court proposes an amount of
Rs.7,50,000/- along with interest @ 6% per annum
w.e.f. the date of filing of claim application on
22.12.2017 till its realization as compensation to the
claimants and seeks the response of the learned
counsel for the parties, to which Mr. Padma Charan
Pattanaik, learned counsel for the claimants by filing a
memo agrees and accepts the proposal of the Court,

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but Mr. Mahitosh Sinha, learned counsel for the insurer
leaves it to the discretion of this Court.
8. In the aforesaid facts and situation and taking
guidance from the law laid down by Apex Court in
Taslim Parvin & Another vrs. (Smt.) Usha Devi &
Another; 2018(2) TAC 22 (SC) , since the claimants
agree to the proposal of the Court through their counsel
and the counsel for the insurer without disputing such
proposal leaves it to the discretion of the Court, it is
considered that the interest of justice would be best
served, if the compensation amount is reduced to
Rs.7,50,000/- together with interest @ 6% per annum
w.e.f. the date of filing of the claim application on
22.12.2017 till its realization which shall be paid by the
insurer to the claimants.
9. In the result, the Appeal filed by the
claimants in MACA No.919 of 2023 stands dismissed,
but the Appeal filed by the insurer in MACA No.748 of
2023 stands accordingly allowed with modification of
compensation amount. Consequently, the insurer-cum-
New India Assurance Co Ltd is directed to pay the
MACA Nos.919 & 748 of 2023 Page 9 of 10

aforesaid modified compensation amount of
Rs.7,50,000/- together with simple interest @ 6% per
annum w.e.f. the date of filing of the claim application
on 22.12.2017 till its realization to the claimants within
eight weeks hence. In case of deposit of aforesaid
modified compensation amount before the learned
Tribunal, the same shall be disbursed to the claimants
proportionately in terms of the award. The statutory
deposit together with the accrued interest thereon be
refunded upon receipt of proof of deposit of modified
compensation before the learned Tribunal.

(G. Satapathy)

Judge







Orissa High Court, Cuttack,
th
Dated the 10 day of November, 2026/Subhasmita
Signature Not Verified
Digitally Signed
Signed by: SUBHASMITA DAS
Designation: Sr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 12-Nov-2026 14:53:03

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