MACA No.939 of 2024 p. 1 IN THE HIGH COURT OF ORISSA AT CUTTACK MACA NO.939 of 2024 (An appeal Under Section-173 of M.V. Act, 1988). Manager Legal (TP Cell), M/s. TATA AIG G.I., Co. Ltd. … Appellant -versus- Jaladhar Dalai & Others … Respondents For Appellant : Mr. A. Patnaik, Advocate For Respondents : Mr. B. Mohanty, Advocate (R-1 to 3), None (R-4) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING & JUDGMENT: 09.01.2026 (ORAL) G. Satapathy, J. 1. This is an appeal U/S.173 of Motor Vehicles Act, 1988 (in short, “the Act”) by the appellant-insurer calling in question the judgment dated 05.01.2024 passed by learned 1st M.A.C.T., Cuttack (hereinafter referred to as “the learned Tribunal”) in M.A.C. Case No.1287 of 2019 awarding compensation of Rs.11,18,000/- together with interest @ 6% per annum w.e.f. date of filing of the claim application i.e. MACA No.939 of 2024 p. 2 18.10.2019 in an application U/S. 166 of the Act for the loss of the sole bread earner of the family in a motor vehicular accident. 2. The short facts required for disposal of this appeal and the cross-objection filed by the Respondents-Claimants are that on 15.05.2019 at about 7P.M. in the evening while Binod Dalai (hereinafter referred to as “the deceased”) was going to Jajpur side in a motor cycle bearing Regd. No. OD-04- M-2647 (Hero Motor cycle) as a pillion rider, suddenly the rider of the motorcycle lost its control at Malada Chhak and applied for brake, for which, the deceased fell down on the road and sustained head injuries leading to his admission initially at CHC, Jajpur, but subsequently being serious referred to SCB MCH, Cuttack, where he succumbed to injuries on 08.06.2019 while undergoing treatment. According to the R-1 to 3-cum-claimants, the accident occurred due to rash and negligent riding of the motorcycle and the deceased was aged about 23 years and was earning MACA No.939 of 2024 p. 3 Rs.15,000/- per month from his profession as mason and they have spent Rs.3,00,000/- towards the treatment of the deceased. On the aforesaid averments, the R-1 to 3-cum-claimants filed an application before the learned Tribunal praying to grant compensation of Rs.12,00,000/- by impleading the insurer and owner of the motorcycle as Ops in such claim application. 2.1. In reply to the notice of the claim, the appellant who was the OP No.2 before the learned Tribunal filed its written statement denying all the assertions made against the insurance company and it inter-alia has pleaded that the claim is not maintainable for the accident occurring on account of consumption of liquor by the deceased. On the other hand, the owner- cum-R-4 who was OP No.1 before the learned Tribunal filed his separate written statement denying the claim and his liability by questioning the maintainability of the claim application. MACA No.939 of 2024 p. 4 3. On the basis of rival pleadings, the learned Tribunal stuck five issues and allowed the parties to lead evidence. Accordingly, the claimants-R-1 to 3 examined 03 witnesses and relied upon documents under Ext.1 to 11, as against two documentary evidence under Exts A & B by the insurer-cum- appellant together with oral evidence of two witnesses, who are the doctor and the police. 4. After appreciating the evidence upon hearing the parties, the learned Tribunal has passed the impugned judgment granting compensation of Rs.11,18,000/- to the R-1 to 3-cum-claimants together with interest @ 6% per annum with apportionment of the compensation amount. Being aggrieved with the award, the appellant-insurer preferred this appeal, but being dissatisfied with the quantum, the claimant filed cross-objection which is already available on record. 5. Heard, Mr. Avijit Patnaik, learned counsel for the appellant-insurer and Mr. Biswajit Mohanty, learned counsel for the claimants-R-1 to 3-cum-cross- MACA No.939 of 2024 p. 5 objector. None appears for R-4, who albeit being represented by a counsel to counter the submission advanced for the parties. 6. The primary questions as emanated from the rival submissions are the maintainability of the claim and the quantum of compensation, since the appellant-insurer claims the claim to be not maintainable on account of deceased was being found to have consumed liquor, but the claimants-R-1 to 3 challenge the quantum of compensation for the learned tribunal not applying the minimum wage to calculate the income of the deceased, however, rest of the facts being not disputed by the parties, this Court at the very inception, takes the issue of maintainability of the claim at the threshold. It is no doubt advanced for the appellant-insurer that the deceased had consumed liquor and thereby, the insurance company being not liable to indemnify the owner of the motor cycle cannot be saddled with liability to pay compensation to the claimants, but the evidence adduced by the claimants- MACA No.939 of 2024 p. 6 R-1 to 3 and the appellant-insurer are required to be scrutinized to answer this question of maintainability of the claim. The learned Tribunal has taken up the maintainability of the claim under issue no. 2 by answering it as under:- “xxx xxx xxx Besides, OP No.2 (appellant herein) also intended to prove that the deceased was under influence of alcohol while he met with the accident and for that sake examined the treating doctor and exhibited the outdoor ticket of SCB MCH, Cuttack as Ext.A. But, interestingly, when the document marked Ext.A was confronted to this witness OP.W.1 (the doctor, who had issued Ext.A) stated that he has no idea about the same. But he admitted that in Ext.9 one word was stained with whitener. However, OP no.2 adduced no other evidence to prove that the deceased was under the influence of alcohol at the time of accident.” That apart, it is pertinent to mention that when the evidence of the petitioner so also evidence of OP.W.2 (Police officer) clearly proved that the accident caused due to negligence of the rider of offending motor cycle, then in such a situation, consumption of alcohol by the deceased being a pillion rider is immaterial. Accordingly, the issue is answered in favour of the petitioners (claimants).” At this juncture, it is considered appropriate to examine Ext.A which is produced before MACA No.939 of 2024 p. 7 this Court to suggest that the deceased was under the influence of alcohol, however, this Court upon perusal of Ext.A found one sentence therein “H/O trauma(RTA under influence of alcohol)”. This document appears to be the prime document for the appellant-insurer, but fact remains that the writing in a document has to be proved by resorting to Section 67 of the Indian Evidence Act/ Section 65 of BSA which prescribes proof of the handwriting of a person alleged to have written on a document produced to the effect that if a document is alleged to have been written wholly or in part by any person, the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. In this case, it is an admitted fact that O.P.W.1 has issued Ext.A, but in his evidence, he has clearly stated that he has no idea about the fact of writing of RTA under the influence of alcohol. Besides, the other witness-OP.W.2, who is a Police Officer, it is found that he has submitted the charge sheet against the rider of the Motor cycle for MACA No.939 of 2024 p. 8 commission of offence punishable U/Ss. 279/304-A of IPC, which suggests that the rider of the vehicle was rash and negligent and the death of the deceased was on account of rash and negligent riding of the motorcycle. 7. Accepting, but not admitting the plea of the appellant for arguendo, it appears that the consumption of alcohol would not debar or disentitle the claimant for compensation, unless it is established that the consumption of alcohol has caused/contributed to, the accident, especially when the amount of alcohol or degree of intoxication are real markers/indicators to find out the cause of accident inasmuch as a small amount of liquor, such as one peg of drink may not be sufficient to inebriate a habitual drunkard, but the same may inebriate a tee-totaller, however, no provision of any act is brought to the notice of the Court to suggest that merely because one has consumed alcohol, the claim against his death for compensation by his dependants is not maintainable. Be that as it may, MACA No.939 of 2024 p. 9 Sec.165(1) of the Act prescribes that a State Government may, by notification in the Official Gazette, constitute one or more Motor Accidents Claims Tribunals (hereafter in this Chapter referred to as Claims Tribunal) for such area as may be specified in the notification for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both. So it is very clear that the death arising out of a motor vehicular accident gives rise to the claim for compensation, but the primary fact under which the claim is maintainable for compensation is that the death must be on account of rash and negligent plying of the motor vehicles. 8. Besides, on being asked, Mr. Avijit Patnaik, learned counsel for the appellant-insurer candidly admits that the insurer has not given any suggestion to the witnesses of the claimants that the accident MACA No.939 of 2024 p. 10 occurred due to consumption of the alcohol by the deceased, but he, however, puts much emphasis on the fact that since the deceased was under the influence of alcohol, the accident occurred. It is undisputed that the deceased was the pillion rider and he was not riding the motorcycle and thereby, it cannot be said that due to consumption of liquor, the accident occurred. Additionally, merely because the deceased had consumed liquor, it does not mean that he has contributed to the accident. Accident occurring is one part, but cause of accident is other part, however, even if the assertion of the appellant is taken into consideration, it cannot be said that the accident occurred due to consumption of liquor by the deceased and unless such fact is brought on evidence on record, it cannot be said that the accident occurred due to consumption of liquor by the deceased so as to render the claimants disentitled to compensation. In the aforesaid facts and situation, especially when the evidence does not reveal the accident to have occurred MACA No.939 of 2024 p. 11 due to the act of the deceased-pillion rider, but the accident occurring due to the rash and negligent action of the rider of the motor cycle from the evidence on record together with the rival pleadings and the deceased having not contributed to the accident in any manner, this Court fully concurs with the finding of the learned tribunal that the accident occurred due to the rash and negligent riding of the rider of the motorcycle and thereby, the claim of the claimants is squarely maintainable. Accordingly, the plea as advanced by the appellant is, hereby, rejected. 9. Once the plea of the appellant-insurer is rejected, the next question comes for determination is the quantum of compensation. It is found from the record that the learned Tribunal has computed the income of the deceased @ Rs.5,000/- per month + 40% towards future prospect which is equal to Rs.7,000/-, but as per the minimum wages notification as on the date of accident which occurred on 15.05.2019, the minimum wage for an unskilled person MACA No.939 of 2024 p. 12 was 286.30 which is rounded to 286. Since the material evidence does not disclose about the profession and income of the deceased, the income of the deceased hypothetically can be taken at Rs. 286 per day and multiplying the same with 26 working days by excluding the four holidays in a month, the income of the deceased would roughly come around Rs.7,436/- and adding 40% to it towards future prospect of the deceased, the income of the deceased would come around Rs.10,410/- per month. Since the deceased was a bachelor, half of his income has to be deducted towards his personal living expenses and thereby, the net contribution of the deceased to his family would come around Rs.5,205/- and accordingly, the compensation to the claimants is to be calculated as Rs.5,205/- x 18(Multiplier) x 12(Months)= Rs.11,24,280/-. Additionally, the R-1 to 3-cum- claimants are also entitled to compensation under the non-pecuniary head of damagers for a sum of Rs.70,000/- with enhancement of 10% in each three MACA No.939 of 2024 p. 13 years and, thereby, the compensation under non- pecuniary head of damages would be around Rs.77,000/-. Since, the deceased was admitted in hospital for around twenty five days and no amount having granted towards the expenditure incurred by the deceased for his treatment and in absence of any evidence with regard to the expenditure incurred by the deceased, this Court considers that a sum of Rs.1,00,000/- would be just and proper towards the expenditure of treatments of the deceased. Accordingly, the modified compensation is calculated at Rs.11,24,280/-+ Rs.77,000/- + Rs. 1,00,000/- = 13,01,280/-. The claimants-cum-R-1 to 3 are also entitled to interest @ 6% per annum on the aforesaid modified compensation amount w.e.f. the date of filing of such claim. 10. In the result, the appeal stands dismissed, but the cross-objection of the claimants (R-1 to 3 herein) stands allowed and accordingly, the impugned award is modified to the extent of Rs. 13,01,280/- MACA No.939 of 2024 p. 14 together with the interest @ 6 % per annum w.e.f. the date of filing of the claim. The aforesaid modified amount of compensation shall be deposited before the learned Tribunal within eight weeks hence and the statutory deposit be refunded to the appellant-insurer on submission of proof of deposit of aforesaid modified award before the learned Tribunal. In case of deposit of the modified award, the learned Tribunal shall disburse the amount to the claimants proportionately in terms of its award. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 9th day of January, 2026/S.Sasmal Designation: Jr. Stenographer