Orissa High Court
Nilakantha Nagar vs General Manager/Managing ... on 16 March, 2021
ORISSA HIGH COURT: CUTTACK
MACA No.127 of 2017
In the matter of an Appeal under Section 173 of the M.V. Act.
1988;
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Nilakantha Nagar ... ... ... Appellant
-versus-
General Manager/Managing Director,
TELCO,Jamsedpur, Jharkhand
& another ... ... ... Respondents
For Appellant : M/s. S.N.Kar.
For Respondent : M/s.B.P.Tripathy, R.Acharya,
and A.Pati,
(For Respondent No.1)
M/s. S.K.Ghose & C.Das,
(Respondent No.2)
Date of Hearing: 05.03.2021
Date of Judgment: 16.03.2021
THE HONOURABLE MR. JUSTICE BISWANATH RATH
Biswanath Rath,J. This appeal is at the instance of the claimant for
enhancement of compensation.
2. Short background involving the case is that on
18.07.2003 at about 4.45 P.M. while the claimant was travelling
in an Auto-Rikshaw bearing Registration No.OR-02-W-2921 on
the left side of the road near Fire Station Kali Temple the
offending Tata Chassis bearing Registration No.JH-05-A-0956
came and dashed against the Auto-Rikshaw resulting rash and
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negligent driving of the driver therein involving such accident.
The claimant received grievous injuries and with the help of the
local people he was shifted to Government Hospital,
Bhubaneswar. For requiring emergency attention with qualified
Doctor, the injured was referred to S.C.B. Medical College &
Hospital, Cuttack where he was treated as an indoor patient. In
the premises that the injured was an Auto Garage Mechanic
and was earning RS.2500/- per month and the driver of
offending vehicle having valid licence claimant filed claim
application under Section 166 of the M.V. Act seeking an award of
Rs.99,500/- as compensation.
3. Receipt of notice, the owner of the offending vehicle did
not contest and was set ex-parte. On the contrary, the Insurance
Company-respondent no.2 contesting in the matter filed written
statement denying the allegation. The matter was contested by
the Insurance Company on the premises that since charge-sheet
involving criminal case against the driver indicated the accident
took place due to rash and negligent driving of the driver, the
Insurance Company has no responsibility. Basing on the
pleading, the 2nd Motor Accident Claims Tribunal, Cuttack framed
the following issues:
1) Whether due to rash and negligent driving of the driver
of the offending vehicle bearing Regn. No.JH-05-A-
0956 (Tata Chassis), the alleged accident took place
and in that accident the petitioner sustained injuries?
2) Whether the petitioner is entitled to get compensation?
If so what should be the extent?
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3) Whether all the Opp.Parties or any of the Opp. Party
is/are liable to pay compensation?
4) To what other relief if any, the petitioner is entitled to?
4. Entering into materials involving the claim, ultimately the
Tribunal by the impugned judgment while answering each issue
in favour of claimant allowed the claim on contest against
opposite party no.2 and ex-parte against opposite party no.1
thereby awarding consolidated cost of Rs.500/- and further
directing the opposite party no.2-New India Assurance Co.Ltd. to
pay a sum of Rs.20,000/- only to the claimant with interest at the
rate of 7% per annum w.e.f. the date of filing of the claim
petition i.e. 12.11.2003 within one month till realization.
5. Challenging the impugned judgment, Sri Kar, Learned
counsel appearing for the claimant-appellant in his attempt to
enhance the compensation contended that for admitted materials
available on record, Sri Kar attempted to establish his claim for
enhancement of compensation.
6. Sri S.K.Ghose, learned counsel appearing for the
respondent no.2-Insurance Company on the other hand referring
to the discussions and the finding of the Tribunal contended that
for the detail discussion and taking into account of the materials
available therein, there appears there is right assessment on the
entitlement of compensation requiring no interference in the
impugned judgment.
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8. Considering the rival contentions of the parties, this
Court for the admitted position of the case that there occurred an
accident resulting the claimant got injuries, the offending chassis
involved was also insured, the driver since having valid driving
licence and looking to the materials available on adjudication on
the aspect of compensation, this Court here finds the claimant
has filed documents in support of his case marked as Exts.1, 2,
3, 3(a),3(b) and 4. The Tribunal on assessment of the materials
available on record, particularly, through the F.I.R. came to
observe that the owner of the Auto-Rikshaw was the claimant.
Though there is no dispute that the claimant-the owner of the
Auto Rikshaw while sitting in the Auto-Rikshaw, he sustained
injuries. Thus such a person cannot be disentitled from
compensation. However, there is no challenge to the entitlement
by anybody aggrieved. While coming to assess the negligent, this
Court finds in spite of material through the criminal proceeding
that there is rash and negligent driving of the offending chassis
but however since the charge-sheet has been filed involving the
driver of the Auto-Rikshaw and Tata Chassis, there is no infirmity
in the Tribunal observation observing the claimant will be entitled
to 50% of compensation for negligence of both the vehicles.
However, while assessing the compensation, it appears there
remains no dispute that the claimant being a garage mechanic
but merely on the premises that the claimant was the owner of
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the Auto-Rikshaw, the claimant's claim being a garage mechanic
remains disbelieved. It is in the premises, the Tribunal has come
to hold that the owner was having income of Rs.25,000/- per
month. Looking to the other materials herein, this Court finds
there is clear materials showing the claimant was an Indoor
patient from 18.07.2003 to 29.09.2003 roughly over 70 days,
besides the claimant has also filed number of medical bills and
proving the same, it is in this view of the matter, this Court finds
while coming to assess compensation, the Tribunal should have
kept in mind the suffering of the petitioner in the hospital for
long 70 days and further there is also proving of certain medical
bills, it is in this view of the matter, this Court finds the Tribunal
coming to assess the compensation of Rs.40,000/- remains
improper and there need interference of this Court. However,
considering that the accident involved herein took place on
18.07.2003 and we are in 2021, no purpose will be served in
remanding the matter back for re-assessment on the
compensation. In the better interest of the parties, this Court,
therefore, enhances the total compensation awarded by the
Tribunal from Rs.40,000/-(Rupees forty thousand) to Rs.60,000/-
(Rupees sixty thousand). For the liability involving both the
vehicles, petitioner-claimant will be entitled to 50% of the
compensation, the compensation in favour of the claimant is
enhanced to Rs.30,000/- (Rupees thirty thousand) to be paid
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with interest at 7% per annum with effect from the claim
petition. The claimant will also be entitled to cost of Rs.500/-
(Rupees five hundred) as directed by the Tribunal. This Court
involving the modified award observes in the event the Insurance
Company has already deposited the awarded amount involved
herein and the claimant has already received the same, petitioner
be paid the additional sum of Rs.10,000/- (Rupees ten thousand)
as compensation along with interest @ 7% per annum with
effect from 12.11.2003 which amount be deposited, as
undertaken by the Insurance Company, within a period of six
weeks from the date of this judgment. This Court clarifies, in the
event, the compensation is not deposited at all, then Insurance
Company is directed to deposit the compensation amount of
Rs.30,000/- (Rupees thirty thousand) along with interest @ 7%
per annum with effect from 12.11.2003 till realization and also
the cost of Rs.500/- (Rupees five hundred) within a period of six
weeks from the date of judgment.
9. The M.A.C.A. succeeds but, however, to the extent
indicated hereinabove.
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Biswanath Rath,J.
Orissa High Court, Cuttack
The 16th day of March, 2021/sks.
