Orissa High Court
Jagadish Mahanta vs Basanta Kumar Panda And Another on 7 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.526 of 2019 & MACA No.599 of 2020
In MACA No.526 of 2019
Jagadish Mahanta .... Appellant
Mr. D.C. Dey, Advocate
-versus-
Basanta Kumar Panda and another .... Respondents
Mr. B. Dasmohapatra, Advocate for Respondent No.2
In MACA No.599 of 2020
The Divisional Manager, M/s.National .... Appellant
Insurance Co. Ltd.
Mr. P.K. Mahali, Advocate
-versus-
Jagadish Mahanta and another .... Respondents
Mr. D.C. Dey, Advocate for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
07.12.2021
Order No.
I.A. No.986 of 2020 arising out of MACA No.599 of 2020
10. 1. Heard Mr. D.C. Dey, learned counsel for claimant as well as
Mr. P.K. Mahali, learned counsel for the Insurance Company.
2. Upon hearing both the parties and considering the grounds
mentioned in the petition, the delay in filing the appeal is
condoned.
3. I.A. is disposed of.
MACA No.526 of 2019 & MACA No.599 of 2020
4. Both the appeals being arise out of the same judgment are
heard together and disposed of by this common order.
5. Heard Mr. D.C. Dey, learned counsel for the claimant in both
the appeals, Mr. B. Dasmohapatra, learned counsel for the
Insurance Company in MACA No.526 of 2019 and Mr. P.K.
Mahali, learned counsel for the Insurance Company in MACA
No.599 of 2020.
6. In MACA No.526 of 2019, the claimant is the Appellant, who
has prayed for enhancement of the compensation amount. MACA
No.599 of 2020 has been filed by the Insurance Company
questioning grant of compensation amount.
7. Learned 4th MACT, Cuttack in MAC Case No.149 of
2016/61of 2018 has granted compensation to the tune of
Rs.1,50,000/- on account of injury sustained by the claimant in
the motor vehicular accident occurred on 15.10.2015.
8. The case of the claimant is that he was the helper in Mahindra
Bolero Pick-up van bearing Registration No.OD-33-A-4266 and
at that relevant time, the driver of the said vehicle dashed against
a standing mini Truck bearing Registration No.OD-19-D-6660 by
rash and negligent driving. In the accident, he sustained fracture
of leg and other injuries for which he incurred medical expenses
as well as loss of income.
9. It is submitted by the counsel for the claimant that learned
Tribunal has improperly assessed the extent of injury and loss of
income and granted compensation to the tune of Rs.1,50,000/-
only. As per him, taking into account the nature of injury
sustained and the period of disability subsisted, his loss of income
should be assessed on higher side to enhance the compensation.
10. On the other hand, it is submitted by the insurer that the
claimant without having DL was unauthorizedly driving the
offending vehicle resulting the accident against a standing mini
Truck. Therefore, the insurer is not liable to bear the
compensation on behalf of the owner. To substantiate his
contention, it is submitted that in the FIR lodged by the local
police, it has been mentioned that the driver of both the vehicles
have sustained injuries in the accident which suggests that the
claimant was driving the offending vehicle.
11. First coming to the prayer of the claimant for enhancement of
compensation, it is seen from the impugned judgment that the
learned Tribunal has well discussed the aspect of income as well
as the loss of future income vis-à-vis the nature of injury
sustained by the claimant and the corresponding disability
subsisted.
12. Upon going through such analysis of the learned Tribunal and
keeping in view the fact that as per the injury report, the claimant
suffered one fracture in the shaft of femur of right thigh for which
he sustained temporary disability upto 20% only, no infirmity is
noticed in the finding of the learned Tribunal to interfere in the
quantum arrived by it. As such, the prayer of the claimant to
enhance the compensation is rejected being unjustified.
13. Next coming to the challenge advanced by the insurer to the
effect that the claimant himself was driving the offending vehicle,
nothing more has been produced on record in support of such
contention than the recital made in the FIR. It is seen from the
record that, the claimant examined himself as P.W.1 and has
categorically stated to be an occupant of the vehicle as a helper.
During his cross-examination, the stand taken by P.W.1 has not
been rebutted nor disputed by putting any cross question to that
effect. Even no suggestion has been put to the claimant in his
cross-examination that he was the driver of the offending vehicle
at the time of accident, but not the helper. In view of such facts as
emanating from record, the stand of the insurer to dispute the case
of the claimant to exonerate it from the liability is not found
justified. So the finding arrived at by the learned Tribunal to fix
negligence on the driver of the offending vehicle i.e. Bolero is
confirmed.
14. The further challenge of the insurer is that, since two vehicles
were involved in the accident the contribution of negligence on
the part of the other vehicle i.e. Mini Truck should have been
attributed upto 50% for it was standing without blinking the
parking light. It is fairly submitted by learned counsel for the
insurer that this aspect has not been pleaded in their WS before
the learned Tribunal. So, in absence of any such pleading taken
before the Tribunal, the aforesaid contention of the insurer at this
stage is bound to be rejected.
15. In the result, both the appeals are dismissed being without
merit.
16. The insurer (Appellant in MACA No.599 of 2020 and
Respondent No.2 in MACA No.526 of 2019) is directed to
deposit the awarded amount of compensation of Rs.1,50,000/-
(one lakh fifty thousand) along with interest @6% per annum
from the date of claim application i.e.04.03.2016 before the
learned Tribunal within a period of eight weeks from today;
where-after the same shall be the disbursed to the claimant on the
same proportion and terms as directed by the learned Tribunal.
17. On deposit of the award amount before the learned Tribunal
and filing of a receipt evidencing the deposit before this Court
with a refund application, the statutory deposit made before this
Court with accrued interest thereon shall be refunded to the
Appellant-Insurance Company.
18. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
