THE MANAGER(T.P. CELL) M/S. NEW INDIA ASSURANCE CO.LTD.,CUTTACK vs SACHIDANANDA MUDULI
- Court
- Odisha High Court
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.495 of 2026
CNR No. ODHC010382472026
(An appeal U/S.173(1) of Motor Vehicles Act, 1988).
The Manager (TP Cell), M/S.
New India Assurance Co. Ltd.,
Cuttack
Appellant
…
-versus-
Sachidananda Muduli and
others
Respondents
…
For Appellant : Mr. B. Dasmohapatra, Advocate
For Respondents : Mr. P.K. Mishra, Advocate
(R-1 & 2)
CORAM: JUSTICE G. SATAPATHY
DATE OF HEARING : 31.10.2026
DATE OF JUDGMENT: 13.11.2026
G. Satapathy, J.
1.
This is an Appeal U/S.173(1) of the Motor
Vehicles Act, 1988 (In short, “the Act”) by the Appellant-
The Manager (TP Cell), M/S. New India Assurance Co.
Ltd., Cuttack (In short, “the Insurer”) against the
impugned judgment dated 11.03.2026 passed by learned
st
1 Motor Accident Claims Tribunal, Cuttack (In short, “the
Tribunal”) in MAC Case No.863 of 2019 directing the
Insurer to pay a sum of Rs.22,14,448/- together with
simple interest @ 6% per annum w.e.f. the date of filing
MACA No.495 of 2026 Page 1 of 10
of claim application on 02.08.2019 till actual realization
only to the claimants-R1 & 2 herein.
2.
The facts in this case, being largely
undisputed, are only reiterated in precise for disposal of
the present Appeal which emanates from an accident that
took place on 16.12.2018 at about 9 PM at Pratap Nagari
Chhak on Cuttack-Bhubaneswar road, when one Debashis
Muduli (hereinafter referred to as “the deceased”) was
standing after attending call of nature by parking his
Motorcycle bearing Regd. No. OD-05Q-7747 was allegedly
hit by one Truck bearing Regd. No. RJ-19GE-3910
(hereinafter referred to as “the offending vehicle”)
resulting in death of the deceased. An FIR being filed
came to be registered at Cuttack Sadar Police Station,
but subsequently the same resulted in submission of
charge-sheet in GR Case No.2139 of 2018 of the Court of
learned JMFC(R), Cuttack. Accordingly, the LRs of the
deceased filed an application U/S.166 of the Act for grant
of compensation and the learned Tribunal proceeded by
registering the claim vide MAC Case No.863 of 2019 by
MACA No.495 of 2026 Page 2 of 10
issuing notice to the owner and insurer of the offending
vehicle.
3.
In response to the notice of the claim, the
owner of the offending vehicle-cum-R3 herein did not
contest the case and he was set ex parte vide order dated
06.09.2021 by the learned Tribunal, whereas the
Appellant-Insurer contested the claim by filing written
statement denying all the allegations leveled against it
and inter-alia disowning its liability to pay compensation
to the claimants.
4.
In support of their claim, the claimants-R1 &
2 examined three witnesses and relied upon the
documents under Exts.1 to 19 as against no evidence
whatsoever by the Appellant-Insurer. On conclusion of
inquiry, the learned Tribunal after appreciating the
evidence upon hearing the parties passed the impugned
judgment directing the Appellant-Insurer to pay the
compensation to the claimants-R1 & 2 indicated supra .
Being aggrieved with the impugned judgment, the
Insurer has preferred this Appeal challenging inter-alia on
MACA No.495 of 2026 Page 3 of 10
various grounds; such as quantum of compensation and
maintainability of the claim.
5.
Heard, Mr. Bijoy Dasmohapatra, learned
counsel for the appellant and Mr. Pradeep Kumar Mishra,
learned counsel for R1 & 2-cum-claimants, but none
appears for R3-cum-owner of the offending vehicle
despite being duly noticed.
6.
After having considered the rival submissions
and upon perusal of record, it appears that the Insurer
mainly challenges the maintainability of the claim in this
appeal on the ground that since the deceased was an
employee of M/s. Jyoti Motors Pvt. Ltd. with contribution
of some amount towards the Employees’ State Insurance
Act, 1948 (In short, “the ESI Act”), the claim by the
claimants under the Act is not maintainable because the
remedy for an employment injury or death lies under the
provision of the ESI Act. Addressing the aforesaid plea of
the Insurer, this Court considers it necessary to reiterate
the relevant provisions of the ESI Act, which are stated as
under: -
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“ 2(8). “employment injury” means a personal
injury to an employee caused by accident or an
occupational disease arising out of and in the
course of his employment, being an insurable
employment, whether the accident occurs or the
occupational disease is contracted within or
outside the territorial limits of India;
2(14).
“insured person” means a person who is
or was an employee in respect of whom
contributions are or were payable under this Act
and who is, by reason thereof, entitled to any of
the benefits provided by this Act;
53. Bar against receiving or recovery of
compensation or damages under any other
law- An insured person or his dependents shall
not be entitled to receive or recover, whether
from the employer of the insured person or from
any other person, any compensation or damages
under the Workmen’s Compensation Act, 1923
(8 of 1923), or any other law for the time being
in force or otherwise, in respect of an
employment injury sustained by the insured
person as an employee under this Act.
61. Bar of benefits under other enactments -
When a person is entitled to any of the benefits
provided by this Act, he shall not be entitled to
receive any similar benefit admissible under the
provisions of any other enactment.”
7.
On a harmonious reading of the aforesaid
provisions makes it ample clear beyond doubt that the
provision of the ESI Act would only apply, if the death or
injury of/to a person arises out of and in the course of his
employment and such person who is or was an employee
MACA No.495 of 2026 Page 5 of 10
in respect of whom contributions are or were payable
under the ESI Act and who, by reason thereof, is entitled
to any of the benefits provided under the ESI Act.
Besides, the Bar as provided under the ESI Act mandates
that the insured person or his dependents shall not be
entitled to receive or recover, whether from the employer
of the insured person or from any other person, any
compensation or damages under the Workmen’s
Compensation Act, 1923 (8 of 1923), or any other law for
time being in force or otherwise, in respect of an
employment injury sustained by the insured person as an
employee under the ESI Act. Further, Section 61 of the
ESI Act that when a person is entitled to any of the
benefits provided by the ESI Act, he shall not be entitled
to receive any similar benefit admissible under the
provisions of any other enactment, but the present
accident in which the deceased died did not take place
out of and in the course of employment of the deceased,
rather the same took place in the night at 9 PM when the
deceased was standing on Cuttack-Bhubaneswar road.
Further, the offending vehicle does not belong to the
MACA No.495 of 2026 Page 6 of 10
employee nor can it be said to have any connection with
the employer and, therefore, the bar as provided U/S.53
of the ESI Act does not apply to the claimants so as to
prevent them from claiming compensation on the death
rd
of the deceased under 3 party liability against the owner
of the offending vehicle. Accordingly, the plea of the
Appellant merits no consideration and is liable to be
rejected. Hence, the challenge to the maintainability of
the claim under the provisions of ESI Act as raised by the
Appellant is, hereby, rejected.
8.
On turning to the next challenge of the
Appellant to the quantum of compensation, it is found
that not only the learned Tribunal has committed error by
adding 50% of the determined income of the deceased
towards his future prospect, but also by applying 17
multiplier and the same is well admitted on behalf of the
Respondents-claimants, which is evident from the
submission advanced by Mr. Pradeep Kumar Mishra,
learned counsel for R1 & 2 who has conceded for
application of 16 multiplier in place of 17 and addition of
40% instead of 50% as applied by the learned Tribunal
MACA No.495 of 2026 Page 7 of 10
towards future prospect of the deceased. The monthly
income of the deceased as determined by the learned
Tribunal could not be validly disputed by the Appellant,
but on a careful scrutiny of the evidence on record
together with the documents as considered by the
learned Tribunal, it is not erroneous to take the average
monthly income of the deceased Rs.14,016/-, which was
in fact obtained by adding the salary of the deceased for
the month of September, 2018 to November, 2018 as
proved by the claimants under Exts.13 to 15 and this
Court does not find any reason to dispute such finding of
the learned Tribunal. It is, however, found that the
learned Tribunal has committed error in adding 50% of
the determined income of the deceased towards his
future prospect and applying multiplier 17 in place of 16,
but at this stage, after upon a comprehensive and
consensus-seeking exercise with the learned counsel
appearing for the parties, this Court proposes an amount
of Rs.19,50,000/- along with interest @ 6% per annum
w.e.f. the date of filing of claim application on 02.08.2019
till its realization to the claimants as compensation, and
MACA No.495 of 2026 Page 8 of 10
seeks for the response of the learned counsel for the
parties, to which Mr. Pradeep Kumar Mishra, learned
counsel for the claimants-R1 & 2 by filing a memo agrees
and accepts the proposal of the Court, but Mr. Bijoy
Dasmohapatra, learned counsel for the Appellant-insurer
leaves it to the discretion of this Court.
9.
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-R1 & 2 agree
to the proposal of the Court through their counsel and the
counsel for the Appellant-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.19,50,000/- together with interest @ 6% per annum
w.e.f. the date of filing of the claim application on
02.08.2019 till its realization which shall be paid by the
insurer to the claimants-R1 & 2.
10.
In the result, the Appeal stands allowed with
modification of compensation to Rs.19,50,000/- together
MACA No.495 of 2026 Page 9 of 10
with simple interest @ 6% per annum w.e.f. the date of
filing of the claim application on 02.08.2019 till its
realization. Consequently, this Court directs the insurance
company to pay the aforesaid modified compensation
amount to the claimants-R1 & 2 within eight weeks hence
and in case of deposit of the modified compensation
amount, the same shall be disbursed to the claimants-R1
& 2 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 13 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: 13-Nov-2026 18:17:21
MACA No.495 of 2026 Page 10 of 10