The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.693 of 2022 Rashmita Ranjan Parida Appellant Mr. S. Das, Advocate …. -Versus- Respondents Gyanedra Jena & Another Mr. G.P. Dutta, Advocate …. CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 08.04.2024 Order No. 09. 1.
Legal Reasoning
25th April, 2022 of this Court in MACA No.541 of 2019. In absence of any replacement by a prosthetic leg till now and necessary expense which is likely to be incurred by the claimant appellant towards it, the Court is inclined to allow a sum of Rs.50,000/- only leaving it open for him to claim such additional amount in future subject to evidence led in after replacement. Having concluded so, the Court finally with the additional sum included towards loss in future prospects considering the functional disability at 90%, determines the amount at Rs.19,55,120/-. So to say, the Court holds that respondent No.2 Insurance Company is liable to pay additional Page 4 of 5 sum of Rs.3,67,520/- payable to the claimant appellant @ 6% per annum. The Court is also the view that default interest is to be dispensed with. Thus, the Court is of the conclusion that an amount of Rs.3,67,520/- along with interest payable @ 6% per annum is required to be paid and disbursed in favour of the claimant appellant. 10. Hence, it is ordered. 11. In the result, the appeal stands allowed in part. Consequently, the impugned award dated 29th October, 2022 in MAC Case No.49 of 2019 by the learned 3rd Additional District Judge-cum-4th MACT, Cuttack is modified to the extent as aforesaid with a direction to respondent No.2 Insurance Company to deposit an additional sum of Rs. 3,67,520/- along with @ 6% per annum from the date of claim application filed i.e. on 17th January, 2019 within eight weeks from today, which shall thereafter be disbursed in favour of the claimant appellant. 12. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Tudu Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 10-Apr-2024 13:00:38 Page 5 of 5
Arguments
Heard Mr. Das, learned counsel for the appellant and Mr. Dutta, learned counsel for respondent No.2 Insurance Company. 2. 3. None appears for respondent No.1. Instant appeal is filed by the claimant appellant challenging the quantum of compensation directed in MAC No.49 of 2019 by 3rd Additional District Judge-cum-4th MACT, Cuttack on the grounds stated therein. 4. Mr. Das, learned counsel for the claimant appellant referring to the calculation sheet as at Flag-B claims for enhancement of compensation by sum of Rs.8,87,520/- contending that the disability of the claimant should have been treated as 90% instead and while claiming so, he refers to the following decisions, such as, Mohan Soni Vrs. Ram Avtar Tomar & Others, 2012 (1) TAC 385 (SC) and Rekha Jain Vrs. National Insurance Company Limited 2013 (3) TAC 747 (SC). It is submitted that though the disability is held to Page 1 of 5 be 75% but the functional disability should have been at 100% and if not 90% at least since the claimant appellant suffered amputation of his left leg and sustained loco-motor disability, which is permanent in nature. 5. On the other hand, Mr. Dutta, learned counsel for respondent No.2 Insurance Company submits that learned Tribunal did not commit any error and was justified to assess the functional disability at 75% and in support of such contention, he refers to a decision of the Apex Court in the case of Raj Kumar Vrs. Ajay Kumar and Another (2011) 1 SCC 343 which outlined the manner in which the pecuniary damages to be allowed on loss of earning. 6. The original Disability Certificate stands marked as Ext.12. It is not in dispute that the claimant appellant sustained 75% permanent disability. The question is, whether, it has resulted in more than 75% of functional disability so to say which is claimed by Mr. Das and according to him, it should be at 90%. Such claim is based on the nature of injuries received, age of the claimant and a functional immobility on the account of 75% loco-motor disability. 7. In Mohan Soni (supra), the Apex Court held that it is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor but the computation of compensation payable to a victim of motor accident, who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. While discussing the evidence received therein, the Supreme Court further held that loss earning capacity of the injured may be as high as Page 2 of 5 100% but in no case, it would be less than 90%. In Rekha Jain (supra), the Apex Court considering the fact that the appellant to be a film actress and suffered facial disfiguration held that though she has not suffered 100% physical impairment, the same to be as a case of 100% functional disability. While reaching at such a conclusion, the Supreme Court discussed the decision in R. Venkatesh Vrs. P. Sarvanan and Others 2001 (1) Kar.L.J.411 and Baker Vrs. Willoughby (1969) 3 ALL E.R. 1528. In fact, in R. Venkatesh (supra) referred to above, it was held that as a result of amputation, the claimant has been rendered a cripple and he takes the help of crutches even for walking. Considering such evidence received on account of amputation, the Karnataka High Court held that in such cases, where there is an economic and functional disability, it has to be treated as a whole even though the physical disability is not 100%. A similar view is expressed by the Apex Court in Mohan Soni (supra). 8. In the instant case, the claimant appellant admittedly sustained permanent disability of 75%. The claimant is a variety shop owner and he suffered amputation of his left leg. Notwithstanding, any such disability of 75%, taking into account the fact that there is amputation of leg and such is 75% loco-motor disability, the Court keeping in view the settled legal position discussed in Mohan Soni and Rekha Jain (supra) and being not oblivious of the principles laid down in Raj Kumar (supra), is of the humble view that the functional disability vis-à-vis claimant appellant should be assessed at 90%. In other words, the Court is in agreement with Mr. Das, learned counsel for the claimant appellant Page 3 of 5 to treat the functional disability assessed at 90% in place of 75% so allowed by learned Tribunal. With respect to replacement with a prosthetic leg, Mr. Das, learned counsel for the claimant appellant demands an additional sum of Rs.5,50,000/-. In fact, IA No.1733 of 2023 is filed under Order XLI Rule 27 CPC to adduce additional evidence while requesting for such payment through quotation for knee prosthesis marked as an exhibit. Mr. Das, learned counsel for the claimant appellant submits that such additional amount should be allowed as knee replacement with a prosthetic leg is to take place in future. Mr. Dutta, learned counsel for respondent No.2 Insurance Company however submits that such an amount should not be allowed in absence of any such evidence before the learned Tribunal. 9. The alleged accident took place in 2018 and till date there has been no knee replacement with a prosthetic leg but the aforesaid demand is made for an additional sum of Rs.5,50,000/-. In order to support such a claim Mr. Das refers to an order dated