SC) (Raj Kumar v. Ajay Kumar & Anr.). Hon
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.464 of 2024 & MACA No. 968 of 2023 D.M., Oriental Insurance Co. Ltd. ..... Appellant Mr. P.K. Mahali, Advocate Siba Prasad Parida & Ors. ..... -versus- Respondents Mr. P.K. Mishra, Advocate (Respondent No. 1) THE HON'BLE MR. JUSTICE BIRAJA PRASANNA SATAPATHY CORAM: ORDER 04.04.2025 Order No. 07 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard learned counsel appearing for the Parties. 3. Since both the appeals arise out of a common judgment, both the appeals are heard analogously and disposed of by the present common order. 4. While MACA No. 464 of 2024 has been filed by the Insurer challenging the award, MACA No. 968 of 2023 has been filed by the Claimants seeking enhancement of the award. 5. The Tribunal vide its order dtd.04.08.2023 while allowing the claim application so filed by the Claimants, held the Insurer liable pay a sum of Rs.11,81,081/- along with interest @ 9% per annum from the date of filing of the claim application till its realization.
Legal Reasoning
6. In support of the appeal, learned counsel appearing for the Insurer contended that though the Claimants exhibited the disability Page 1 of 6. certificate vide Ext. 6, but since in order to prove the disability certificate, the Claimants never examined the concerned doctor who issued such a certificate, in absence of any such evidence by the Doctor, the Tribunal should not have accepted the disability certificate so produced by the Claimants. 6.1. In support of the aforesaid submission reliance was placed to a decision of the Hon’ble Apex Court reported in 2011 (1) TAC 785 (SC) (Raj Kumar Vs. Ajay Kumar & Anr.). Hon’ble Apex Court in Para 11 of the said Judgment has held as follows:- “11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just-compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If à Doctor giving evidence uses technical medical terms, the Page 2 of 6. Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.” 6.2. It is also contended that even though the accident occurred on 25.04.2014, but the F.I.R. was lodged only on 23.05.2014. It is contended that in view of the decision of the Hon’ble Apex Court in the case of Anil Vs. New India Assurance Co. Ltd., delay in such lodging of the F.I.R. should have been considered and the matter should have been enquired into, prior to coming to a conclusion that the offending vehicle caused the accident. It is also contended that award of interest @ 9% is on the higher side. Making all these submissions learned counsel appearing for the Insurer contended that the impugned award needs interference of this Court. 7. In support of the enhancement of the award, learned counsel appearing for the Claimants in MACA No. 968 of 2023 on the other hand contended that taking into account the nature of disability of the Injured at 100% and the nature of disability being quadriparesis, which is nothing but partial paralysis or muscle weakness in all four limbs, encompassing both arms and both legs, the functional disability should have been held at 100% instead of 50%, which has been wrongly taken by the Tribunal. Page 3 of 6. 7.1. It is contended that had the Tribunal taken the functional disability at 100%, the compensation amount towards loss of future earning would have been assessed double the assessment so made by the Tribunal and the compensation amount should have been enhanced by another Rs.8,61,840/-. 8. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that in the claim application filed by the Injured, the disability certificate was exhibited as Ext. 6 and the said certificate was exhibited without any objection from the side of the Insurer. It is also found from the record that the Insurer neither examined any witness nor produced any document disputing the stand taken by the Claimants before the Tribunal. 8.1. Taking into account the nature of disability and the documents produced by the learned counsel appearing for the Claimants showing the disability as quadriparesis, i.e. partial paralysis or muscle weakness in all four limbs, encompassing both arms and both legs, this Court is of the view that the Tribunal erred in calculating the functional disability at 50%. 8.2. Considering the nature of disability and the documents produced before this Court, this Court is of the view that functional disability should have been assessed at 75%. 8.3. With regard to the stand taken by the Appellant that the disability certificate should not have been accepted in absence of the evidence of the concerned Doctor, this Court is unable to accept such contention as the Insurer neither lead any evidence nor Page 4 of 6. produced any document nor anything was elicited from the Injured who was examined as P.W. 1. 8.4. Since the Insurer never chose to lead any evidence nor elicited anything contrary from the P.Ws. examined by the Claimants, this Court is unable to accept the contentions raised by the Insurer in the present appeal. Therefore, this Court while disposing both the appeals and by holding the functional disability at 75% in place of 50%, held the Claimants entitled to get further compensation amount of Rs.4,30,920/-. 8.5. Accordingly, this Court held the Claimants entitled to get compensation amount of Rs.16,12,001/- along with interest @ 6%. While holding so, this Court directs the Appellant-Insurer in MACA No. 464 of 2024 to deposit the compensation amount of Rs.16,12,001/- along with interest @ 6% interest per annum payable from the date of filing of the claim application till its realization before the Tribunal within a period of eight (8) weeks from the date of receipt of this order. On such deposit of the amount, the Tribunal shall disburse the same in favour of the Claimants-Respondents proportionately in terms of the Judgement dtd.04.08.2023. 8.6. However, it is observed that if the amount as directed is not deposited within the aforesaid time period of eight (8) weeks, the compensation amount of Rs.16,12,001/- shall carry interest @ 7% starting from the expiry of the period of eight (8) weeks till the amount is so deposited. 8.7. On such deposit of the amount, the Appellant-Company in MACA No. 968 of 2023 shall be permitted to take back the statutory Page 5 of 6. deposit along with accrued interest if any from the Registry on proper identification.
Decision
9. Both the appeals are disposed of accordingly. Photo copy of the order be placed in the connected case record. Sneha (BIRAJA PRASANNA SATAPATHY) Judge Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-Apr-2025 18:29:30 Page 6 of 6.