The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.910 of 2013 & MACA No.237 of 2013 (From the judgment dated 18th January, 2013 passed by learned 1st M.A.C.T., Puri in M.A.C. No.134 of 2010) In MACA No.910 of 2013 Ramakrushna Jani since dead through LR …. Appellant -versus- Regional Manager, Insurance Co. Ltd. and another Oriental …. Respondents Advocate(s) appeared in this case:- For Appellant
Legal Reasoning
: Mr. Sanjib Swain, Advocate For Respondents : Mr. G.P. Dutta, Advocate For Respondent No.2 In MACA No.237 of 2013 The Regional Manager, Oriental Insurance Co. Ltd. …. -versus- Appellant Ramakrushna Jani and another …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. G.P. Dutta, Advocate For Respondents : Mr. Sanjib Swain, Advocate For Respondent No.1 MACA Nos.910 & 237 of 2013 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 18th August, 2023 B.P. Routray, J. 1. Heard Mr. S. Swain, learned counsel for the claimant and Mr. G.P. Dutta, learned counsel for the insurer. 2. Both the appeals being arise out of same impugned judgment dated 18.1.2013 of learned 1st MACT, Puri in M.A.C. No.134 of 2010, wherein compensation to the tune of Rs.11,41,000/- has been granted along with interest @7.5% per annum to the claimant from the date of filing of the claim application i.e. 17.5.2010 on account of injury sustained by him in motor vehicular accident dated 18.3.2010, are
Decision
heard together and disposed of by this common order. 3. MACA No.910 of 2013 has been filed by the injured-claimant, who during pendency of the appeal died on 30.1.2018 and accordingly he was substituted by his mother (LR). The claimant has filed the appeal praying for enhancement of compensation amount on different counts. MACA Nos.910 & 237 of 2013 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 4. MACA No.237 of 2013 has been filed by the insurer challenging the award. Mr. G.P. Dutta, learned counsel submits on behalf of the insurer that the driver of the offending vehicle, i.e. Car bearing Registration No.MH-04-BW-7138, did not have a valid driving license on the date of accident and as such, the insurer is not liable to indemnify the compensation amount. He further submits that the amount of compensation derived by learned Tribunal is on higher side. 5. The accident took place on 18.3.2010 and the injured (subsequently died) was a boy aged about 23 years on the date of accident. He was a 4th year student of Orissa Engineering College prosecuting his B.Tech. in Electronics and Telecommunication. The Tribunal has assessed his monthly income at Rs.4000/- and accordingly granted different amounts on the following heads as detailed below. For pain and suffering = Rs.1,00,000/- For medical expenses = Rs.2,20,000/- For loss of amenities = Rs.1,00,000/- For loss of future income/prospects = Rs.6,91,000/- For conveyance and nourishing food and attendant charges = Rs.30,000/- MACA Nos.910 & 237 of 2013 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 6. Mr. S. Swain, learned counsel for the claimant submits that the injured being a student of B.Tech., his monthly income should be assessed at Rs.10,000/- at least. 7. As per the oral evidence of injured recorded before the Tribunal, he was getting salary of Rs.12,000/- per month while working as Project Engineer in ERA Infra Engineering Ltd. But this statement of the injured has been rightly disbelieved by the learned Tribunal since the injured had not completed his B.Tech course on the date of accident and therefore, his alleged employment as Project Engineer cannot be accepted without completion of engineering course. 8. Considering the place of residence of the injured and his status as a student of 4th year B.Tech course, the assessment of income at Rs.4000/- per month of the deceased as determined by learned Tribunal is found justified and as such confirmed by this Court. 9. Undisputedly, the injured sustained permanent disability to the extent of 80% by amputation of his leg below the knee. Learned Tribunal assessed consequent functional disability up-to 80% keeping in view the circumstances that he was a student of B.Tech. This Court does not see any reason to deviate from the same which is accordingly MACA Nos.910 & 237 of 2013 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 confirmed. However, learned Tribunal did not add any future prospects on the income of the injured while computing loss of future income. Adding 40% to the same, a sum of Rs.2,76,400/- is added to make the loss of future income at Rs.9,67,400/-. It is mentioned here while confirming the findings of the Tribunal on the income and extent of functional disability, that, the principles propounded in Raj Kumar – vrs- Ajay Kumar and another (2011) 1 SCC 343, Mohan Soni –vrs- Ram Avtar Tomar and others (2012) 2 SCC 267, Kavita –vrs- Deepak and others (2012) 8 SCC 604, are kept in view. 10. The submissions of Mr. Swain, learned counsel for the claimant to add future prospects at a higher extent based on the income received by the friends (classmates) of injured on present days is rejected outright keeping in view the law settled in the case of National Insurance Company Ltd. –vs- Pranay Sethi and others, (2017) 16 SCC 680. The prayer for adducing additional evidence by the claimant in this regard is accordingly rejected. 11. Since the injured died in the meantime during pendency of the appeal, as per the principles settled in the case of Oriental Insurance Company Limited –vrs- Kahlon @Jasmail Singh Kahlon, 2021 SCC MACA Nos.910 & 237 of 2013 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 OnLine SC 691, the present claimant, who is the mother of the injured, is found not entitled to any amount towards loss of non-pecuniary loss. In Kahlon@Jasmail Singh Kahlon (supra), the Supreme Court has held as follows: “20. We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. 21. However, the compensation under the head pain and suffering being personal injuries is held to be unsustainable and is disallowed. xxx xxx xxx” 12. In respect of medical expenses, the assessment of the learned Tribunal to the tune of Rs.2,20,000/- is found erroneous on the face of Ext.7/1. The amount of Rs.4,73,556/- as mentioned in the Bill under Ext.7/1 is liable to be granted towards medical expenses. 13. The cost of special diet, attendant charges and conveyance is counted at Rs.50,000/-. 14. Accordingly, the compensation amount is re-determined as follows: MACA Nos.910 & 237 of 2013 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 Loss of future income = Rs.9,67,400/- Medical Expenses = Rs.4,73,556/- Conveyance, Spl diet & Attendant charges = Rs. 50,000/- Rs.14,90,956/- 15. The contention of the insurer that the driver of the offending vehicle did not have a valid driving license on the date of accident to drive the offending vehicle is found an incorrect submission. It is admitted on the face of Ext.A, the copy of the Driving License, that the driver had valid license to drive a light motor vehicle. Therefore, no force is seen on the contention of the insurer to contend that he did not have a valid license on the date of accident. 16. The Supreme Court in the case of Mukund Dewangan –vrs— Oriental Insurance Company Limited, (2017) 14 SCC 663 have held that, the definition of ‘light motor vehicle’ includes a transport vehicle of the given class and weight and can be driven by holder of license to drive light motor vehicle and no separate endorsement is required to drive such transport vehicle. 17. In view of the discussions made above, the insurer, i.e. Oriental Insurance Co. Ltd. is held liable to pay the compensation amount by indemnifying the owner. MACA Nos.910 & 237 of 2013 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 31-Aug-2023 17:16:05 18. In the result, both the appeals are disposed of with a direction to the insurer to deposit the compensation amount of Rs.14,90,956/- (rupees fourteen lakhs ninety thousand nine hundred fifty-six) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e. 17.5.2010 within a period of three months from today, where-after the same shall be disbursed in faovur of the substituted claimant, namely, Smt. Damani Jani on such terms and proportion to be decided by learned Tribunal. 19. On deposit of the award amount before learned Tribunal and filing of a receipt evidencing the deposit with a refund application before this Court, the statutory deposit made in MACA No.237 of 2013 before this Court with accrued interest thereon shall be refunded to the Insurance Company. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.910 & 237 of 2013 Page 8 of 8