The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.213 of 2016 Manager Claim (T.P. Cell), M/s. Oriental Insurance Co. Ltd. …. Appellant Mr. A.A. Khan, Advocate -versus- Jalendra Kumar Pradhan @ Jalandhar & another …. Respondents Mr. A.K. Mohanty, Advocate for Respondent No.1 CORAM: JUSTICE A.K. MOHAPATRA Order No.
Decision
ORDER 14.12.2023 15. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel appearing for the Appellant-Insurer as well as learned counsel for the Respondent-Claimants. 3. The present appeal has been filed by the Appellant-Insurer challenging the award dated 22.12.2015 passed in M.A.C.T. Case No.37/282 of 2014/2013 by the Additional District Judge-cum-7th Motor Accident Claims Tribunal, Bhubaneswar. 4. The factual matrix of the claimant’s case in short, is that, as per the averments made in the Col.No.23 of his claim application/petition, on the night of dt.05.06.2013, the petitioner along with his friends and relatives were moving from Rasulgarh Bhubaneswar to Salepur, Cuttack in a Mahindra Xylo Taxi bearing Regd. No. OR-02-BB-3666 and at about 9.45 P.M, while the said Mahindra Xylo Taxi (in which the petitioner along with his friends // 2 // were moving) reached in front of M.R.F Tyre District Sells Office on National High Way No.5, at a little back from Pahala Chhak, the said Mahindra Xylo Taxi was suddenly capsized on the road side and landed inside a ditch due to the speedy and, rash and negligent driving of the driver of the said Mahindra Xylo Taxi. As a result of such a accident, the petitioner sustained grievous fracture and bleeding injuries in his right forearm and was taken to the nearest Hi- Tech Medical College and Hospital, Pandara by his friends for his treatment and, was admitted there as an indoor patient. He (petitioner) was admitted in Hi-Tech Medical College and Hospital, Bhubaneswar from 05.06.2013 to 13.06.2013, during which period, his forearm was operated and an internal fixator was installed by the doctor. Then, after coming from the hospital on dtd.13.06.2013, he continued taking medicines while staying at his home. The petitioner was once again admitted into that hospital on dtd.05.10.2013 and remained in the hospital bed upto 13.10.2013, wherein he had undergone operation for the second time and during that period, the bone grafting was done on his right side waist. For the aforesaid operations on the injuries of the petitioner at the hospital, he had incurred expenditures for rupees one lakh and till yet the internal fixator is in his forearm and the same will be removed in future through. operational process, in which cost of Rs.40,000/- will be required for that operation. For the aforesaid accident of the petitioner caused due to the rash and negligent driving of the driver of Mahindra Xylo Taxi, a criminal case vide Balipatna P.S.Case No.135 of 2013 U/s.279, 337 and 338 of the I.P.C was registered against the driver of the said Mahindra Xylo Taxi bearing Regd. No.OR- 02-BB-3666. 5. The learned Tribunal after taking evidence and hearing the // 3 // parties has arrived at a conclusion that the claimant is entitled to get a sum of Rs.3,06,000/- towards annual loss of future earning, Rs.32,000/- towards loss of earning during period of treatment, Rs. 30,000/- for pain and suffering & a sum of Rs.50,000/- towards operation and medicine expenditure. In total the learned Tribunal has awarded Rs.4,68,000/- compensation along with @ 9% from the date of application. 6. Learned counsel for the appellant-Insurance Company, at the outset submitted that the Tribunal has awarded excess amount in the raid of loss of future earning and the award of interest @ 9% is also excessive. Learned counsel for the appellant also referring to the impugned judgment submitted before this Court that the Tribunal has assessed functional disability of the injured @ 20% which the Tribunal is not competent to do. Such finding of the Tribunal is not supported by any medical evidence. Therefore, the award of future loss of earning on the basis of functional disability as has been assessed by the Tribunal without any medical evidence is unsustainable in law. 7. Learned counsel for the Claimant-Respondent, on the other hand submitted that the Tribunal has not committed any illegality at all. He further contended that the injured, who was working in a private company was earning a sum of Rs.7,500/- per month. As a result of that injury the whole family has sustained a huge financial loss as the injured has become disabled, moreover it was further contended that, owing to such functional disability, the injured was removed from his job as a delivery agent. In view of the aforesaid facts, the learned counsel for the Respondent submitted that the Trial Court has properly appreciated the evidence and, has come to the right conclusion, therefore, the impugned award does not call for any // 4 // interference. 8. Having heard the learned counsels for the respective parties and, on a careful examination of the evidence, as well as materials on record, this Court is of the considered view that the assessment of annual loss of future earning by the Tribunal is on the higher side. Further, this Court has found that the assessment of functional disability @ 20% by the Tribunal is not supported by any medical evidence. However, the fact remains that the injured was removed from service after the accident as he was unable to discharge his duties as he was doing earlier. Therefore, it cannot be denied thate there was no loss of future earning to the injured. The assessment of loss of future earning is a very complicated procedure and the same varies from case to case. It also depends upon surrounding facts and circumstances, as well as the nature of work that is performed by the injured. Taking into consideration the submissions made by the learned counsels for the parties, this Court suggests that a sum of Rs.3,25,000/- would be adequate as a just and fair compensation in the facts and circumstances of the present case. Learned counsel for the Respondent-Claimant accepted such compensation subject to the payment of interest @ 7% from the date of application. Learned counsel for the appellant-Insurer left it to the discretion of this Court. In view of the facts and circumstances of the present case, this Court deems it proper that a total sum of Rs.3,25,000/- along with interest @ 7% from the date of application as has been awarded by the Tribunal, would be fair enough and just compensation. Accordingly, without interfering with the impugned award this Court modifies the quantum of compensation and the interest as has been awarded by the Tribunal. Accordingly, the insurance company is directed to pay the modified compensation amount along with interest @ 7% within // 5 // a period of eight weeks from today. On production of an acknowledgment receipt showing deposit of the money before the Tribunal accompanied by an application by the appellant-insurer. Further, the Registry of this Court is also directed to refund the statutory deposit amount along with accrued interest to the appellant- Insurance Company. 9. With the aforesaid observations/ directions the appeal stands disposed of. Anil ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Dec-2023 10:55:22