JUDGMENT

09th February, 2023 B.P.Routray, J.

1. Present appeal by the Insurer is directed against the impugned judgment dated 12th April, 2018 passed by Additional District Judge-cum-4th MACT, Angul, in M.A.C.No.173 of 2016, wherein compensation to the tune of Rs.1,10,90,686/- has been granted along with interest @6% per annum with effect from the date of filing of the claim application on account of death of the deceased in the motor vehicular accident on 22nd September, 2016.

2. Heard Mr.Satapathy, learned counsel for the Appellant and Mr.Mishra, learned counsel for the Claimant-Respondents.

3. Mr. Satapathy, learned counsel for the Appellant contends that there is contributory negligence on the part of the deceased in the accident and therefore, 50% of the liability is liable to be reduced. In this regard, Mr.Satapathy relies on the MVI report marked under Ext.A.

4. The facts remain that the accident took place on 22th September, 2016 when the deceased was going in his motor-cycle. The offending vehicle, i.e. Tata 207 DI Truck bearing registration No.OR-19-B-6681 was coming from opposite direction. As per the Claimants, the accident took place due to rash and negligent driving of the offending vehicle. The police upon completion of investigation has submitted the charge-sheet against the driver of the offending vehicle. As per P.W.2, the eye witness, the accident took place due to negligence of the driver of the offending vehicle. Nothing could be successfully elicited from his mouth during his cross-examination to attribute any negligence on the part of the deceased.

5. Next coming to the report of the MVI under Ext.A, as relied on behalf of the insurance company, the same is nothing more than an expert opinion. Perusal of said Ext.A further reveals that the MVI has not verified the spot, but upon examination of the vehicles in the premises of the police station, much after the date of accident, has opined that in absence of any mechanical failure on the part of the vehicles, it is presumed that the accident would have caused due to negligence of both the drivers. When direct evidence is available on record, the presumption attached to the opinion of the expert remains no more sustainable. Because, it is the settled law that in case of contradiction between direct evidence and expert opinion, direct evidence has to prevail upon. Therefore, all such contentions raised on behalf of the insurance company are found without merit, which are mainly dependent on the opinion of MVI. So no such infirmity is seen in the approach of the Tribunal in fixing the negligence entirely on the driver of the offending vehicle. The same is confirmed by this Court.

6. With regard to quantification of compensation amount, Mr. Satapathy strenuously urges to discard counting of future prospects from loss of dependency. According to him, the Claimants, who were dependants of the deceased, are receiving Rs.29,213/- per month from the employer of the deceased under the special scheme, i.e. Nalco Employees Family Financial Assistance and Rehabilitation Scheme (NEFFARS).

7. The deceased was working as a Grade-II Fitter in the Smelter Plant of NALCO at Angul. As per Mr. Satapathy such amount received by the Claimants from NALCO due to untimely death of the deceased is amounting to Ex-gratia compensation and therefore, is liable for deduction while quantifying compensation amount.

8. Law is no more res integra on this point. In the case of Reliance General Insurance Company Ltd. vrs. Sashi Sharma and others, 2016 (4) SSC 627, the Supreme Court in a similar situation while dealing with the payments made to the legal heirs of the deceased under the Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006, where the family had continued to receive certain amounts as financial assistance equal to the pay and allowances last drawn by the deceased for such periods set out in those rules, have held that in order to apply a harmo