The Divisional Manager vs ). Prahallad Kejriwal
2021 Latest Caselaw 3280 Ori

                                 MACA No. 440 of 2017




                   The Divisional Manager,
                   National Insurance Company Ltd.        ...       Appellant.


                                                        -Versus-
                   1). Prahallad Kejriwal,
                   2). Sudip Kumar Mitra,
                   3). M/s. Rexon Strips Ltd.            ...    Respondents.

25. 05.03.2021 I have heard Mr. Subrat Satpathy, learned counsel for the appellant and Pabitra Kumar Nayak, learned counsel for the respondent no.1 through Video Conferencing mode.

2. In this appeal, the appeal is preferred by the appellant-Divisional Manager, National Insurance Company Ltd. to set aside the impugned judgment dated 27.09.2016 passed by the learned 2nd Addl. District & Sessions Judge-cum-5th M.A.C.T., Rourkela in M.A.C. Case No.138 of 2008, wherein the Tribunal directed the Insurance Company to pay the entire compensation amount of Rs.37,03,000/- (Rupees thirty seven lakhs three thousand only) along with interest @ 7% per annum from the date of filing of the claim application i.e., from 02.04.2008 till the realization, with a period of two months.

3. The case of the claimant respondent No.1 is Rohit that on 29.06.2007 at about 5.20 a.m. while he with other persons was going in a car bearing Regn. No. OR- 14-J-9661 towards sector 20 of Rourkela, suddenly a truck bearing Regn. No. Or-14-F-2178 coming from Ispat

Market at high speed, in a rash & negligent manner dashed against the car as a result he and other occupants sustained grievous bodily injuries and one person died. Immediately after the accident he was taken to IGH Rourkela and admitted as an indoor patient but on advice of doctors he was discharged on 30.06.2007 and again he was taken to Indraprastha Apollo Hospital, New Delhi by airbus and treated there for ten days. The incident was reported in the Sector-15 Rourkela Police Station and P.S. Case No.71 dated 29.06.2007 corresponding to G.R. Case No. 1197 of 2007 was registered. He was working as a Director in M/s. Rexon Strips Ltd., Rourkela and was earning Rs.10,60,000/- per annum as salary. He also claimed that he had spent Rs.17,00,000/- towards his treatment and Rs.10,00,000/- towards transportation which included air ambulance charges. He therefore claimed Rs.40,00,000/- as compensation.

4. That Respondents No.2 and Respondent No.3 are the owners of the vehicles had filed separate written statements admitting that the vehicle was insured with the National Insurance Company. While Respondent No.2 denied involvement of his vehicle in the accident, Respondent No.3 admitted the accident but stated that the Insurance Company would pay the compensation as the vehicle was validly insured.

5. The appellant had filed written statement admitting that the two vehicles were validly insured with Company but stated that in view of violation of

Section- 158 (6) of the M.V Act, the Insurance Company should be absolved of any liability. In the additional written statement it took the plea that Madan Singh, driver of the vehicle of Respondent No.2 had obtained renewal of licence No. M5056/88 issued in Guwahati but report from the Licensing Authority, Guwahati revealed that they had not issued licence bearing M5056/88 in name of Madan Singh. As the original driving licence was fake, the policy conditions had been violated for which it was not liable to indemnify the owner.

6. That the claimant had examined himself as P.W.1 and proved 14 documents. The Insurance Company had examined its Administrative officer (Legal) of NIC Divisional Office Rourkela as OPW No.1 and proved four documents.

7. That the learned Tribunal framed four issues and arrived at the following findings:-

i) The claimant has sustained injuries in a vehicular accident which occurred due to the rash and negligent driving of the driver of the offending vehicle.

ii) In view of the decision in the case of Helen C. Rebello -Vrs.- MSRTC reported in (1999) 1 SCC 90, since premium of the mediclaim policy had been paid by the petitioner and the vehicular accident has no link with such type of claim, the amount received by the claimant cannot be set off from the medical expenses incurred by him.

iii) He has not filed any bill of IGH Rourkela but filed bills showing that a sum of Rs.10,650/- has been spent in Rourkela for his treatment and he is entitled to recover that amount.

iv) Condition of the claimant was critical and he could have only moved by air ambulance and hence the Rs.7,50,000/- towards air ambulance changes are to be reimbursed by the owner of the offending vehicle.

v) Ext.9 series are the bills of Indraprastha Apollo Hospital, New Delhi for Rs 20,48,037/- and the claimant is entitled to be reimbursed that amount.

vi) The monthly salary of the claimant is taken to Rs.88,000/- per month as per certificate issued by the Managing Director of the Company . For loss of income for six months, he needs to be compensated and is entitled to Rs 88,000/- x 6 = Rs 5,28,000/-.

vii) The certificate Ext.8 issued by the Medical Board of RGH shows that the appellant is suffering from mild mental retardation and 30% of disability. Hence he is entitled to compensation of loss of income @30% of his monthly income for a period of 12 months (Rs. 88,000 x 30% x 12 = Rs.3,16,800.

viii) A sum of Rs 50,000/- is awarded towards pain and suffering.

ix) No plea of contributory negligence has been taken by the Insurance Company in its written statement nor has such plea been raised by its witness O.P.W.1 and hence such plea raised during argument is not tenable.

x) The petitioner is entitled to compensation of Rs.10,650/- + 20,48,037/- + 7,50,000/- + 5,28,000/- + 3,16,000 + 50,000/- = Rs.37,02,687/-.

xi) For renewal, a licensing authority follows almost all procedure for issuing a fresh licence, so it cannot be presumed that licence No.520/91-92 is invalid or fake. The compensation amount shall be recovered from the Insurance Company subject to the right of recovery.

8. Learned counsel for the appellant-Insurance Company submitted that the quantum of compensation is liable to be reduced drastically on various grounds and direction to pay interest set aside. He submits that the claimant has not proved that he has suffered loss of income and the salary certificate of the claimant had not been proved by the drawing and disbursing officer which was necessary as the certificate had been issued by the brother of the claimant and hence award of Rs. 5,28,000/- and Rs 3,16,800/- towards loss of income was liable for interference .He further submits that the claimant had not been referred to any hospital for specialized treatment when he was discharged from IGH and hence the Insurance Company was not liable to pay any expenses for treatment outside Odisha or for travel by airbus. He also submits that the expenses incurred in Apollo Indraprashtha Hospital and Woodlands Hospital have not been properly proved. He further claims that right of recovery should have been granted to the Insurance Company as the Original Driving licence was a fake one. He has not pressed the plea of contributory negligence.

9. That the learned counsel for the claimant on the other hand submitted that as the claimant has suffered loss of income and pain and suffering on account of the injuries sustained by him on account of the accident and has in fact spent a considerable amount of money towards treatment in Rourkela and for travel by air

ambulance outside the State for specialized treatment outside the State and there is no allegation that the expenses incurred by him do not relate to his treatment , so the appeal may be disposed of in Lok Adalat Style fixing a reasonable amount as compensation.

10. After perusal of the impugned judgment, the evidence, the oral and documentary evidence, I am of the considered view that the award is liable to be reduced under various heads while maintaining the award of interest.

11. In the case of Raj Kumar vs Ajay kumar & others reported in (2011) 1 SCC 343 , the Apex court has held as follows :

..." Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability. This means that the tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement,

(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person.

If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent

of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.".......

In the present case the monthly salary of the claimant has not been proved by examining any witness which was necessary as the certificate in question has been issued by his brother. But by taking the monthly salary to be Rs 88,000/- per month has awarded Rs 5,28,000/- for loss of income for 6 months . In my opinion award of compensation for loss of pay for 6 month was misconceived as a director of a Company is not ordinarily required to attend office daily. Hence he will not suffer any loss of income for not attending office. No evidence has been led by examining any witness or proving any document that the claimant suffered loss of any salary during this period. Hence the entire amount of Rs.5,28,000/- awarded towards loss of income for a period of six months has to be deducted from the awarded amount. Considering the certificate Ext.8 issued by the Medical Board of RGH to the effect that the appellant is suffering from mild mental retardation and 30% of disability, the Tribunal has held this to be temporary and held the claimant entitled to compensation of loss of income @30% of his monthly income for a period of 12 months (Rs.88,000 x 30% x 12 = Rs.3,16,800/-. This amount of Rs.3,16,000/- awarded towards 30% loss of income for a period of one year is also deducted in the absence of any evidence to show

that the claimant has not been paid his full salary for a period of twelve months. But for his inability to attend office, an amount of Rs.40,000/- is awarded for loss of any allowances the claimant is likely to have suffered during these eighteen months.

12. There is no endorsement in the discharge certificate of IGH that there was any necessity to take the claimant immediately for treatment to any Speciality Hospital and that too outside the state. And no Doctor has been examined to prove the necessity of taking him outside the State for treatment. The claimant has also admitted that he had not been advised by any Medical Officer to go to any other place. Therefore the finding of the learned tribunal that it was only possible for the claimant to move to Delhi or Mumbai by means of air ambulance is without any basis and is perverse. Ext.19 is the ticket of the Air Ambulance. The finding of the learned Tribunal that air ambulance charge of Rs.7,50,000/- is required to be reimbursed is therefore liable for interference and is accordingly set aside as I am of the view that there was no urgency so as to travel outside the State by Air Ambulance.

The claimant has however proved bills vide Exts.18, 18/1 to 18/19 to show that Rs.10,650/- has been spent by him in Rourkela although no bill of IGH was proved. This amount has not been disputed by the appellant. The claimant has proved Ext.9, Bill of Indraprastha Apollo Hospital and stated that he stayed there as an Indoor patient from 30.06.2007 to

27.08.2007 and spent Rs.20,81,947/-. Ext.9 relates to the claimant. These amounts have not been seriously challenged by the appellant other than stating that there was no necessity for the claimant to go for treatment at expensive hospitals outside the State. Since the treatment of the claimant in Indraprastha Apollo Hospital has not been disputed, I am not inclined to deduct the amount spent towards treatment there. The claimant will thus be entitled for reimbursement of expenses incurred by him for treatment at IGH and Indraprastha Apollo Hospital.

13. The amount of Rs.50,000/- awarded towards pain and suffering is also not so unreasonable as to warrant interference and reduction. However taking note of the extent of injuries and the period for which he had to remain under treatment, an additional amount of Rs.30,000/- is awarded towards pain and suffering.

14. The claimant will be entitled to Rs 40,000/- + Rs.10,650/- + Rs.20,48,037/- + Rs.50,000/- + Rs. 30,000/- , which comes to Rs.21,78,687/-. This amount is rounded off to Rs.21,79,000/-.

15. The contention of the learned counsel for the appellant that the direction to pay interest was wrong has no merit as claimants are normally entitled to interest from the date of application unless it can be proved that they deliberately delayed disposal of the case or filed the appeal after an inordinate delay. (see Kajal vs. Jagdish Chand : (2020) 4 SCC 413).

16. Considering the facts and circumstances of

the case, I feel it proper to reduce the compensation amount to Rs.21,79,000/- (Rupees twenty one lakhs and seventy nine thousand only) along with interest @ 7.5.% as awarded by the learned Tribunal as against Rs.37,03,000/- (Rupees thirty seven lakhs three thousand only) awarded by the Tribunal.

17. An amount of Rs.63,50,184/- has been deposited on 16.11.2017 by the Appellants in this Court towards the awarded amount alongwith interest. The said amount be returned to the Appellants within two weeks on receipt of appropriate application and the entire awarded amount be deposited before the Tribunal within a period of eight weeks thereafter. The amount so deposited will be released in the manner proportionately as per the decision of the Tribunal.

18. Respondent No.2 owner of the vehicle, as per office note in MACA No 397 of 2020 which arises out of the same accident, has reportedly expired during pendency of the appeal. Liberty is given to the Appellant Insurance Company to recover the awarded amount from his legal heirs, if recoverable, in accordance with law.

19. The amount deposited towards statutory amount deposited in the Registry of this Court shall be refunded with accrued interest to the appellant-Insurance Company, on production of the receipt showing deposit of the modified compensation amount and interest with the Tribunal.

The MACA is accordingly disposed of.

Urgent certified copy of the order be granted on proper application.

..........................

Savitri Ratho, J.