Orissa High Court
Bhimasen Pradhan vs Kailash Chandra Barik And Another on 8 December, 2021
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.545 of 2019 & MACA No.327 of 2020
In MACA No.545 of 2019
Bhimasen Pradhan .... Appellant
Mr. P.K. Mishra Advocate
-versus-
Kailash Chandra Barik and another .... Respondents
Mr. V. Narasingh, Advocate for Respondent No.2
In MACA No.327 of 2020
The Divisional Manager, M/s.New .... Appellant
India Assurance Co. Ltd.
Mr. V. Narasingh, Advocate
-versus-
Bhimasen Pradhan and another .... Respondents
Mr. P.K. Mishra, Advocate for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
08.12.2021
Order No.
I.A. No.902 of 2021 arising out of MACA No.327 of 2020
10. 1. Heard Mr. P.K. Mishra, learned counsel for claimant as well as
Mr. V. Narasingh, 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.
I.A. No.518 of 2020 arising out of MACA No.327 of 2020
4. This is an application for extension of time to pay the deficit
Court fee.
5. Learned counsel for the Insurance Company (Appellant)
submits that he has already paid the deficit Court fees.
6. In view of the same, the I.A. is disposed of.
MACA No.545 of 2019 & MACA No.327 of 2020
7. Both the appeals being arise out of the same judgment are
heard together and disposed of by this common order.
8. Heard Mr. P.K. Mishra, learned counsel for the claimant and
Mr. V. Narasingh, learned counsel for the Insurance Company.
9. In MACA No.545 of 2019, the claimant is the Appellant, who
has prayed for enhancement of the compensation amount. MACA
No.327 of 2020 has been filed by the Insurance Company
questioning grant of compensation amount.
10. Learned 1st MACT, Cuttack in MAC Case No.231 of 2017
has directed for payment of compensation to the tune of
Rs.12,91,981/- along with interest @ 6% per annum from the date
of filing of the claim application, i.e. 10.4.2017 to the claimant,
who sustained injuries in the motor vehicular accident dated
9.1.2017.
11. The case of the claimant is that while he was coming in a
motorcycle, the offending vehicle coming in rash and negligent
manner dashed his motorcycle from behind resulting sustenance
of injuries. The claimant soon after the accident was shifted to the
hospital where his right leg was amputated above the knee and
nailing was done in his left leg. The claimant sustained permanent
disability to the extent of 85% amounting to 100% functional
disability.
12. In the appeal preferred by the insurer, the amount of
compensation has been questioned. It is contended by Mr. V.
Narasingh, learned counsel for the insurer that the learned
Tribunal has assessed the compensation on the higher side by
calculating the medical expenditure and future medical
expenditure excessively and as per him, the claimant has only
entitled to Rs.1,01,981/- towards the medical expenditure and no
amount should be granted for future medical expenditure as the
injury has resulted complete amputation of the leg.
13. To examine the contention of the insurer, perusal of the
impugned judgment reveals that the learned Tribunal has granted
Rs.1,01,981/- towards medical expenditure based on the medicine
bills filed by the claimant. It is apparent from the discussion of
the learned Tribunal that Rs.1,01,981/- was the cost of medicines
purchased by the claimant and not for other expenses. Further
amount of Rs.50,000/- each on two counts towards cost of
attendant and special diet has been added to the aforesaid amount
of medicine bills to make the sub-head on this count to
Rs.2,01,981/-.
14. Upon perusal of the same, in my humble opinion, the second
count of Rs.50,000/- granted towards special diet should be
reduced to Rs.25,000/- keeping in view the period of treatment
undergone by the claimant as an indoor patient. Accordingly, the
compensation is reduced by Rs.25,000/- under the sub-head. In
other words, the amount of compensation towards medical
expenditure, attendant cost and special diet is accounted to
Rs.1,76,981/-.
15. The other contention to discard out the entire amount granted
towards future medial expenditure is not found convincing. It is
for the reason that, nothing can be said with definiteness that no
future medical expenditure would be incurred in case of
amputation of leg. To illustrate, it may be stated here that the
claimant may opt to use a prosthetic leg in future or he may incur
expenses for any possible complications arising out of the injury
or any other unforeseeable event. So the amount of Rs.1,00,000/-
granted towards future medical expenditure is found justified. So
far the amount granted towards loss of amenities, mental pain and
suffering, the same is found appropriate. Accordingly, the
contention raised by the insurer is dealt with.
16. Mr. P.K. Mishra, learned counsel for the claimant while
praying for enhancement of the compensation submits that the
learned Tribunal has erred in calculating the monthly income of
the injured at Rs.5000/- instead of Rs.6,216/-. It is submitted that
the avocation of the claimant as a mason has though been
disbelieved by the learned Tribunal, still the claimant being an
able bodied person should be assessed at the minimum wage of
Rs.207.20 per day for an un-skilled labour. Therefore, the
monthly income of the claimant should be enhanced to Rs.6,216/-
instead of Rs.5,000/- as calculated by the learned Tribunal.
17. There appears substantial force in the submission of the
claimant. Without entering into further dispute about the
avocation of the claimant, considering him as an unskilled labour,
his wage can be fixed at Rs.207.20 as prevailing during the year
2017. As such the monthly income comes to Rs.6,216/- and this
Court enhances the same accordingly. Thus the total income
comes to Rs.6,216/- x 12 = Rs.74,592/- and the loss of future
earning as calculated by applying '14' multiplier thereof, the total
amount comes to Rs.10,44,288/-. It needs to be mentioned here
that the percentage of the permanent functional disability is 100%
loss of future income and the same is not disputed by the insurer.
As per the principles enunciated in the case of National
Insurance Company Limited vs. Pranay Sethi and others,
(2017) 16 SCC 680, 25% future prospects is added to the total
loss of income to make it Rs.13,05,360/-, i.e. Rs.10,44,288/- +
Rs.2,61,072/-.
18. The aforesaid amount of Rs.13,05,360/- if added with the
further amount as discussed earlier, i.e. Rs.1,76,981/- +
Rs.1,50,000/- + Rs.1,00,000/-, the total amount comes to
Rs.17,32,341/-. Accordingly, the compensation amount is
enhanced to this extent.
19. The Insurance Company is directed to deposit the said amount
of Rs.17,32,341/- (seventeen lakhs thirtytwo thousand three
hundred fortyone) along with 6% interest from the date of filing
of the claim application, i.e.10.04.2017 before the learned
Tribunal within a period of eight weeks from today; where-after
the same shall be the disbursed to the claimant. Out of the said
amount, 60% be kept in fixed deposit for a period of six years. It
goes without saying that the penal interest as directed by the
learned Tribunal is waived.
20. 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.
21. Liberty is granted to the Insurance Company to proceed
against the owner of the vehicle for recovery under Section 174
of the M.V.Act.
22. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
