The Divisional Manager vs ). Vinoy Kumar Kejirwal
2021 Latest Caselaw 3281 Ori

                                 MACA No. 397 of 2017




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


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

15. 05.03.2021 I have heard Mr. Subrat Satpathy, learned counsel for the appellant- Insurance Company and Pabitra Kumar Nayak, learned counsel for the respondent no.1 - claimant 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.124 of 2008, wherein the Tribunal directed the Insurance Company to pay the entire compensation amount of Rs.15,43,000/- (Rupees fifteen lakhs forty three thousand only) along with interest @ 7.5% per annum from the date of filing of the claim application i.e., from 26.03.2008 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 the injured with other persons travelling 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 in a high speed, in a rash & negligent manner dashed against the car as a result petitioner/respondent no.1 and other occupants sustained grievous bodily injuries. 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 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. It was stated that the injured was working as a Director in M/s. Rexon Strips Ltd., Rourkela and was earning Rs.10,60,000/- per annum as salary. He claimed that he had spent Rs.35,00,000/-towards his treatment and Rs.10,00,000/- towards transportation which includes flight charges and charge of attendant. He was unable to work for six months and suffered mental agony physical pain etc also. He therefore claimed Rs.16,00,000/- as compensation.

4. That Respondents No.2 and 3, the owner of the vehicles filed their written statements stating that their vehicles were 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, Guwhati 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 examined himself as P.W.1 and proved 14 documents. No witness was examined on behalf of the Opp. Parties.

7. That the learned Tribunal framed four issues for determination 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 vs. 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) Ext.8, is the medical bill of IGH for Rs.8,812/-. The claimant is entitled to recover the said 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.10 is the bill of Indraprastha Apollo Hospital, New Delhi for Rs.3,33,047.60 and Bill of Woodland Hospital is for Rs.2,25,320/-. The claimant is entitled to recover both the amounts spent towards his treatment.

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 and loss of income for two months is Rs.1,76,000/-.

vii) Plea of permanent disability cannot be accepted in absence of a disability certificate.

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

ix) The petitioner is entitled to compensation of Rs 8,812/- + Rs.7,50,000/- + Rs.3,33,050/- + Rs.2,25,320/- + Rs.1,76,000/- + Rs.50,000/- = Rs 15,43,182/-.

x) 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 the direction to the Insurance Company to pay interest is liable to be set aside. He submits that the claimant has not proved that he suffered any loss of income during this period 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 1,76,000/- towards loss of income was liable to be set aside. 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 reimburse any expenses incurred for treatment outside Odisha or for travel outside Odisha by airbus and there was absolutely no necessity to 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.

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 considering the submissions of the counsels and careful perusal of the impugned judgment and the evidence adduced in this case, I am of the opinion that the amount awarded under some heads only is liable to be reduced while confirming the rest and 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. While holding that plea of permanent disability cannot be accepted in the absence of a disability certificate, the learned Tribunal has granted loss of pay for two months taking the monthly salary to be Rs. 88,000/-. In my opinion award of compensation for loss of pay 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.1,76,000/- awarded towards loss of income for a period of two months has to be deducted from the awarded amount. However an amount of Rs.25,000/ is awarded towards loss of any allowances the claimant is likely to have suffered on account of his absence.

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. The claimant has also admitted that he had not been advised by any Medical Officer to go to any other place. In the absence of

advice of any medical officer, it was not necessary for the claimant to go outside the state for treatment and that too by air ambulance. Ext.13 the bill of Air Tops Rescue has been marked with objection. The finding of the learned Tribunal that air ambulance charge of Rs.7,50,000/- is required to be reimbursed is perverse and set aside.

13. The bills of Indira Gandhi Hospital, Rourkela for Rs.8,812/- has not been disputed or challenged by counsel for the Appellant. Bill of Indraprastha Apollo Hospital is for Rs.3,33,050/- and of Woodlands Hospital, Kolkotta is for Rs.2,35,320/- and both relate to treatment of the appellant. These bills 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 these hospitals has not been disputed, I am not inclined to deduct any amount from the amounts spent towards treatment in these two hospitals. The claimant will thus be entitled for reimbursement of cost incurred by him for treatment at IGH, Indraprastha Apollo Hospital and Woodlands Hospital.

14. The amount of Rs.50,000/- awarded towards pain and suffering is also not so unreasonable so as to warrant interference and reduction.

15. The claimant will thus be entitled for payment of an amount of Rs.25,000/- + Rs.8,812/- + Rs. 3,33,050/- +Rs.2,25,320/- + Rs.50,000/-=

Rs.6,42,182/- which is rounded off to Rs.6,43,000/- as compensation to be paid by the Appellant Insurance Company.

16. That contention of the learned counsel for the appellant that the direction to pay interest was wrong carries 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).

In this case there is no such allegation that the claimant deliberately delayed disposal of the case and in this case appeal has been filed by the Insurance Company.

17. The learned Tribunal has already observed that the compensation amount shall be payable by the Insurance Company subject to the right of recovery.

18. Considering the facts and circumstances of the case, I feel it proper to reduce the compensation amount to Rs.6,43,000/- (Rupees Six lakhs forty three thousand only) along with interest @ 7.5.%, awarded by the learned Tribunal as against Rs.15,43,000/- (Rupees fifteen lakhs forty three thousand only) earlier awarded.

19. An amount of Rs.26,33,689/- has already 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.

20. It appears that steps for substitution of respondent No.2 owner of the vehicle, who is stated to have expired during pendency of the appeal have not been taken. Liberty is given to the Appellant Insurance Company to recover the awarded amount from the legal heirs of the owner of the vehicle, if recoverable after taking steps for substitution, in accordance with law.

21. 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.