Compensation for accidental death must be based on last received income, while dependency claims by family members remain valid despite other income sources.

JUDGMENT :

B.P. Routray, J.

1. The matter is taken up through hybrid mode.

2. Heard Mr. G.P. Dutta, learned counsel for the insurer - Appellant and Mr. P.K. Mishra on behalf of Mr. A.K. Choudhury, learned counsel for claimant – Respondents 1 to 5.

3. Present appeal by the insurer is directed against the impugned judgment dated 19^th May 2015 of learned 1^st MACT, Puri in MAC No.22 of 2012, wherein compensation to the tune of Rs.3,03,25,000/- along with interest @ 6% per annum from the date of filing of the claim application, i.e. 1^st February, 2012 has been granted on account of death of deceased Subhendu Dixit in the motor vehicular accident dated 25^th December, 2011.

4. The appellant – insurer disputes involvement of the offending vehicle, i.e. TATA Magic bearing registration number OR-12-A-8374 in the accident. Mr. Dutta, learned counsel for the Appellant submits that the details of the vehicle has not been mentioned in the inquest report and as per the eye witnesses examined from the side of the insurer, the deceased died due to fall from his own vehicle, a Honda Activa Scooter. Mr. Dutta further submits that action of the police in investigating the case, arrest of the driver and seizure of offending vehicle are suspicious.

5. The case of the claimants is that the deceased while going in a Honda Activa Scooter, the offending vehicle dashed him coming from the opposite direction being driven in rash and negligent manner with high speed.

6. Mr. Mishra, learned counsel for the claimants submits that involvement of the offending vehicle has been stated in the F.I.R. itself and police has submitted charge-sheet against the accused driver.

Further, the eye witnesses examined from the side of the claimants have categorically spoken regarding involvement of the offending vehicle as well as negligence on the part of its driver.

7. It is seen that three witnesses have been examined from the side of the claimants and amongst them P.W.2 is the eye witness to the accident. Besides evidence of eye witness, the claimants also relied on the police papers like F.I.R., charge-sheet, inquest report, post mortem examination report, etc. in order to substantiate their contention. On the other hand, the insurer has examined four witnesses including one Daitari Mohanty as O.P.W.2 as the eye witness of the occurrence.

8. The accident took place on 25^th December, 2011 at 10.30 am. The F.I.R. was lodged on the same day at 12.55 pm. Informant is the brother- in-law of the deceased who is not an eye witness of the accident. The time of accident is not disputed at the Bar and admittedly, the contents of the F.I.R. speak details of the offending vehicle including its registration number. P.W.2 has stated in his evidence that while the deceased was going in his Honda Activa Scooter, the offending vehicle caused the accident being driven rash and negligently with high speed. This evidence of P.W.2 is found supported by the police investigation report which resulted in submission of charge-sheet against the accused driver, namely Lingaraj Nayak, for commission of offences under Section 279 /304-A of the I.P.C. It is true that none of the parties examined any such witness named either in the police investigation report or in the F.I.R. Neither P.W.2 nor O.P.W.2 are among the eye witnesses named in the police investigation report. According to O.P.W.2, while the deceased was going in his Honda Activa Scooter fell down from his vehicle due to sudden application of brake as one Scooty came in front of him abruptly.

9. The statement of P.W.2 is supported by the findings