The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.982 of 2018 & MACA No.627 of 2018 (From the judgment dated 16th April, 2018 passed by learned 1st M.A.C.T., Kalahandi, Bhawanipatna in M.A.C. No.77 of 2016) In MACA No.982 of 2018 The Divisional Manager, The New India Assurance Company Limited …. -versus- Appellant SK Arfan Hussain and another …. Respondents Advocate(s) appeared in this case:- For Appellant : Mr. B. Dasmohapatra, Advocate For Respondents : Mr. D. Mund, Advocate For Respondent No.1 In MACA No.627 of 2018 SK Arfan Hussain …. Appellant -versus- M/s.Jai Hanuman Carriers and another …. Respondents Advocate(s) appeared in this case:- For Appellant
Legal Reasoning
: Mr. D. Mund, Advocate For Respondents : Mr. B. Dasmohapatra, Advocate For Respondent No.2 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 MACA Nos.982 & 627 of 2018 Page 1 of 10 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 15th May, 2023 B.P. Routray, J. 1. Both the appeals being arise out of the same judgment dated 16.04.2018 of the learned 1st MACT, Kalahandi, Bhawanipatna in M.A.C. No.77 of 2016 wherein compensation to the tune of Rs.46,30,000/- has been granted along with interest @6% per annum to the injured-claimant from the date of filing of the claim application, i.e.07.12.2016, are heard together and disposed of by this common judgment. 2. MACA No.982 of 2018 has been filed by the insurer and MACA No.627 of 2018 has been preferred by the injured-claimant. 3. The involvement of the offending vehicle, i.e. Tanker bearing Registration No.AP-16-TC-1778 in the accident, negligence on the part of its driver and validity of the insurance policy are not disputed. Both parties question the compensation amount. As per the insurer, the same has been computed excessively, whereas the injured-claimant contends for enhancement of the same. MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 2 of 10 4. The injured is a two year boy at the time of accident. The accident took place on 31.10.2016 at Kesinga in the district of Kalahandi. The learned Tribunal has computed the compensation on different heads as follows: 1. For medical expenses, transport, nutrition food and attendant charges Purchase of prosthesis & maintenance 2. 3. Towards pain, sufferings and trauma 4. Permanent disability, happiness & enjoyment of education loss of amenities, loss of life, Rs. 5,50,000.00 Rs.26,00,000.00 Rs. 1,00,000.00 Rs. 1,00,000.00 5. Towards future medical expenses for surgery 6. Loss of income due to the accident i.e. Rs. 2,00,000.00 Rs.10,80,000.00 Rs.4,000 + 2,000 x 12 x 15= Total Rs.46,30,000.00 (Rupees forty-six lakhs thirty thousand) only 5. The insurer objects grant of Rs.26,00,000/- for purchase of prosthetic leg and maintenance and further, the amount of Rs.10,80,000/- granted towards loss of future income. As per the insurer, counting notional income of Rs.4,000/- per month for an infant aged about 2 years is too high. On the other hand, according to the claimant, the medical expenses of Rs.5,50,000/- granted by learned Tribunal is without proper application of mind since a total sum of Rs.9,21,000/- has in fact been spent towards treatment of the injury. It is the further case of the claimant that the learned Tribunal has failed to award any amount towards attendant cost, actual and future. Grant of MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 3 of 10 Rs.1,00,000/- only towards loss of amenities, happiness and enjoyment of life is too less as per the claimant. 6. The injuries led amputation of right leg of the injured above the knee and the extent of disability is 85% as per the disability certificate. On the backdrop of rival claims made on the question of quantification of compensation, it would be profitable here to reproduce the relevant portion of the judgment in the case of Raj Kumar vs. Ajay Kumar and another, (2011) 1 SCC 343, which is as follows: “The provisions of the Motor Vehicles Act, 1988 (‘the Act’, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The Court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) Expenses relating to treatment, hospitalization, medicines, (i) transportation, nourishing food, and miscellaneous expenditure. (ii) have made had he not been injured, comprising: Loss of earnings (and other gains) which the injured would MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 4 of 10 (a) (b) disability. Loss of earning during the period of treatment; Loss of future earnings on account of permanent Future medical expenses. Non-pecuniary damages (General Damages for pain, suffering and trauma as a consequence of Loss of amenities (and/or loss of prospects of marriage). Loss of expectation of life (shortening of normal longevity).” (iii) damages) (iv) the injuries. (v) (vi) 7. In Arvind Kumar Mishra vs. New India Assurance Co. Ltd. and another, (2010) 10 S.C.C. 254, the Supreme Court on assessment of future earnings of a final year engineering student who received injuries resulting 70% permanent disability, has observed: “We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the Court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time’s earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sun.” 8. In Kavita vs. Deepak and others, 2012 (4) T.A.C. 733 (S.C.), the Supreme Court has observed that: “It is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 5 of 10 awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.” 9. In the case at hand, it is seen that the injured minor claimant underwent treatment at various hospitals at different points of time starting from Kesinga Government Hospital to Pinnacle Hospital, Visakhapatnam and Swami Vivekananda National Institute of Rehabilitation Training and Research, Olatpur, Cuttack. The learned Tribunal assuming life span of the injured up-to 67 years has calculated the cost of prosthetic leg with pediatric foot at Rs.18,000,000/- and added Rs.6,00,000/- for maintenance of the same. But while adding, it is made Rs.26,00,000/- instead of Rs.24,00,000/- which appears an arithmetical error. This Court disagrees with the finding of the learned Tribunal in computing the cost of prosthetic leg for Rs.18,00,000/- @Rs.3,00,000/- for anyone in each five years. Here keeping in view the cost of the same as per available price, the same is reduced to Rs.6,00,000/- in total + maintenance cost of Rs.2,00,000/-. 10. The attendant cost including future cost is counted at Rs.2,00,000/- keeping in view the age of the injured and the fact that he is supported by his parents. MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 6 of 10 11. A lot of controversy is there regarding fixation of notional income of the injured. It is true that the injured is an infant and dependent on the parents. In the case of Laxmi Devi -vs- Mohahammad Tabbar, (2008) 12 SCC 165, the Supreme Court has assessed the notional income of a housewife at Rs.3,000/- per month. As per 2nd Schedule, the notional income of a non-earning person has been fixed at Rs.15,000/- per month. Keeping in view the age of the injured, date of accident, social status of his parents and his place of residence, the amount of notional income @Rs.4,000/- per month fixed by the learned Tribunal is found appropriate in the opinion of this Court. The Supreme Court in the case of Kirti and another vs. Oriental Insurance Company Limited, (2021) 2 SCC 166 has stated for addition of future prospects to the extent of 40% on the notional income. In the case of Kajal vs. Jagdish Chand and others, (2020) 4 SCC 413, the multiplier in respect of minor girl aged about 4 years has been decided to be ‘18’ based on the principles outlined in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 and Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121. Accordingly, by addition of future prospects to the extent of 40% and applying MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 7 of 10 multiplier ‘18’, the loss of future income is calculated at Rs.12,09,600/-. Here it is required to mention that it is not the case of the claimant that the injured became incognitive or lost his mental ability due to the injuries sustained in the accident. So for the disability regarding amputation of right leg above the knee, it is appropriate to count the compensation towards future loss of income at 50% of the income capacity. Therefore, due amount of compensation towards loss of future income is determined at Rs.6,04,800/-. 12. So far as the medical expenses are concerned, the materials produced on record does not satisfy the contention of the claimant to the tune of Rs.9,21,000/-. The amount of Rs.5,50,000/- granted by learned Tribunal based on the documents produced on record is found justified keeping in view the period of treatment in different hospitals and the nature of treatment. Though future medical cost is claimed by the injured, this Court is not in favour of granting the same for the simple reason that no material has been brought on record through expert evidence for continuity of the treatment and requirement of the same. Furthermore, the nature of injuries does not justify for it except the use of prosthetic leg and its maintenance. MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 8 of 10 13. In view of the nature of disability and the disfigurement of physical appearance, a sum of Rs.3,00,000/- is computed for loss of amenities as well as enjoyment of life and prospects of marriage. 14. To sum up, all the heads of compensation are produced below. 1. Medical Expenses 2. 3. 4. 5. 6. 7. 8. Attendant charges, actual & future Special diet Purchase of prosthetic leg and maintenance Pain and suffering Loss of amenities and enjoyment of life Loss of future medical expenses Loss of future income Rs.5,50,000.00 Rs.2,00,000.00 Rs. 50,000.00 Rs.8,00,000.00 Rs.1,00,000.00 Rs.3,00,000.00 Nil Rs.6,04,800 Total Rs.26,04,800.00 15. Accordingly, total compensation is determined at Rs.26,04,800/-, payable along with interest @6% per annum. 16.
Decision
In the result, both the appeals are disposed of with a direction to the insurer, i.e. M/s.New India Assurance Co. Ltd. to deposit the total compensation of Rs.26,04,800/- (rupees twenty-six lakhs four thousand eight hundred) before the Tribunal along with interest @6% per annum from the date of filing of the claim application, i.e. 07.12.2016 within a period of two months from today; where-after the same shall be disbursed in favour of the claimant on such terms and proportion to be decided by the learned Tribunal. MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 9 of 10 17. 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.982/2018 before this Court with accrued interest thereon shall be refunded to the Appellant-Insurance Company. (B.P. Routray) Judge B.K. Barik/Secretary MACA Nos.982 & 627 of 2018 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-May-2023 17:00:10 Page 10 of 10