The court established that the deceased's intoxication did not contribute to the accident, emphasizing the rashness of the motorcyclist, hence the insurer was fully liable for compensation.

Judgment :

G. Satapathy, J.

1. The appellant-National Insurance Company Limited (in short, the “insurer”) is subjected to this appeal by the impugned judgment dated 21.10.2017 passed by the III Motor Accident Claims Tribunal, Bhadrak (in short, the “Tribunal”) in MAC Case No.29 of 2011 directing the insurer to pay Rs.17,00,670/- only to the claimant-respondent Nos.1 to 6 together with simple interest @ 7% per annum w.e.f. 19.04.2011 till its actual realization.

2. Briefly stated, the claimant-respondent Nos.1 to 6 herein being the Legal Representatives (LRs) of one Kedarnath Dixit (hereinafter referred to as, the “deceased”) a Storage Agent by profession had approached the learned Tribunal in an application U/S.166 of the Motor Vehicle Act (in short, the “Act”) for compensation towards death of the deceased on 23.12.2010 at about 4 PM at Ranital Bazar in a motor vehicular accident, while travelling from Maitapur to Bhadrak as a pillion rider on the motor cycle of Om Prakash Nayak bearing Registration No.OR-22E-0699 (hereinafter referred to as, the “offending motor cycle”) being ridden in rash and negligently when the motor cycle hit the road divider. According to the claimant- respondent Nos.1 to 6, the accident was reported and Bhadrak Rural PS Case No.420 of 2010 was registered against Mr. Om Prakash Nayak for rash and negligent riding and causing death of the deceased by negligence. Accordingly, the claim of the claimants-petitioners (R1 to 6) was registered vide MAC Case No.29 of 2011 with the owner and insurer of the offending motor cycle as OPs (R7 & Appellant).

In response to the aforesaid claim, the owner of the motor cycle did not participate and was accordingly set ex parte in MAC No. 29 of 2011, whereas, the appellant-insurer appeared and contested the claim by filing its written statement denying all the averments asserted by the claimants and inter alia setting forth the plea that the deceased died out of his own negligence for not putting head gear and helmet and, thereby, contributing to the accident.

3. On the rival pleadings of the parties, the learned Tribunal struck three issues and allowed the parties to lead evidence. Accordingly, the claimants examined two witnesses vide PWs.1 & 2 and exhibited 10 documents vide Exts.1 to 10 as against no evidence whatsoever by the insurer. After appreciating the evidence on record upon hearing the parties, the learned Tribunal passed the impugned judgment directing the insurer to satisfy the award by holding the deceased to have contributed to the accident and fastening the liability of 50% on the insurer. Being aggrieved, the insurer has preferred this appeal, but the claimants-R3 to 6 have filed their cross-objection assailing the apportionment of liability on the deceased for 50% for equally contributing the accident.

3.1. During the pendency of the appeal, R1 & R2 died, but all the LRs. of R1 & 2 being on record, the names of R1 & 2 stand deleted from the appeal memo.

4. Heard Mr. Pramoda Kumar Tripathy, learned counsel for the appellant and Mr. Bishnubrata Singh, learned counsel for R3 to R6 in the matter and perused the record, but none appears for R7 despite valid notice of the appeal.

5. After having considered the rival submissions upon perusal of record, primarily it appears to the Court that the insurer challenges the quantum of compensation on three counts; such as (i) incorrect assessment of the income of the deceased by relying upon the Income Tax Return of a solitary year 2010- 2011, (ii) Disputing the profession of the deceased and (iii) Excessive award of Rs.1,50,000/- towards damages under non-pecuniary heads and imposition of high interest rate @ 7% per annum on the