The main legal point established in the judgment is the requirement for legal representatives to establish loss of pecuniary benefit being enjoyed as dependents on the deceased in order to claim compensation under the head of loss of dependency.

JUDGMENT

A.S. Naidu, J.

The Judgment dtd.16th August, 2003 passed by the District Judge-Cum-MACT (1), Bolangir, in M.J.C. No. 519/115 of 1993-2001 is assailed in this appeal filed u/s 173 of the Motor Vehicles Act, 1988 by the New India Assurance Co. Ltd., Bolangir Division.

2. Purushottam Purohit along with his son Artatrana Purohit and others was travelling in an Ambassador Car bearing Regn. No.OR-03-1819 from Bolangir to Bhubaneswar on 30th May, 1993 morning. It was alleged that due to rash and negligent driving of the driver, the said Car had a head on collusion with a Truck bearing Regn. No. ORH-1945 which was also travelling in a high speed and coming from the opposite direction. Consequent to such accident Purushottam Purohit sustained grievous injuries and unfortunately succumbed to the said injuries. Other occupants of the Car also sustained injuries. Purushottam Purohit, it is averred in the petition filed u/s 166 of the M.V. Act, was aged about 62 years at the time of the death and he was earning Rs. 10,000 per month from his pension. Respondent Nos. 1 to 5 claiming to be the legal heirs and successors of late Purushottam Purohit filed an application u/s 166 of the M.V. Act claiming compensation to the tune of Rs.4,62,000 towards loss of income, loss of love and affection, mental shock and suffering, expenditure for Sudhikriya etc.

3. After receiving summons the owner of the Car chose not to contest the case and remained ex parte. The Appellant-Insurance Company, with whom the Car was insured, filed a written statement vaguely denying the allegations and took the stand that the accident occurred due to composite negligence of the drivers of both the vehicles. The further plea taken by the Insurance Company was that as neither the owner nor the insurer of the offending truck was impleaded as parties in the claim petition, the liability of the Company shall at best be 50% of the amounts awarded.

4. Basing upon the pleadings, the Tribunal framed five Issues. In order to substantiate their case the claimants got two witnesses examined and exhibited six documents. Unfortunately neither any oral evidence was adduced by the Insurance Company or by any other Opposite Parties, nor any document was exhibited. The Tribunal after discussing the evidence, both oral and documentary, in extenso came to the conclusion that the accident occurred clue to rash and negligent driving of the driver of both the vehicles. It further held that though the accident took place due to composite negligence of both the vehicles, i.e. the Car and the Truck, as the Appellant-Insurance Company is the insurer of both the vehicles, it is liable to pay the entire compensation.

5. So far as the quantum of compensation is concerned, the Tribunal observed that Purushottam Purohit was a retired employee and he was drawing pension of Rs. 3,000 per month, and awarded a sum of Rs. 2,00,000 with interest 9% per annum from the date of filing of the petition, i.e. 11.11.1993 till realization of the amount.

6. The said award is assailed in this appeal mainly on the ground that none of the claimants being dependants upon the deceased Purushottam Purohit and as each of them is well settled in their life, the Tribunal acted illegally and with material irregularity in awarding a sum of Rs.2,00,000.00 towards compensation. In the alternative it was argued by Dr. Rath, Learned Counsel for the Appellant-Insurance Company that the tribunal committed an apparent error in not deducting at least 1/3rd of the income of Late Purushottam Purohit towards his personal expenses and calculating the compensation taking the monthly income to be Rs. 3,000. In short, according to Dr. Rath the claimants being neither dependants nor were enjoying any pecuniary benefits out of the earnings of the deceased, no compensation can be awarded under the head of loss of dependency. In support of such contentions Dr. Rath, relied upon the decision of Andhra Pradesh High Court in the case of Dilip Kumar