Orissa High Court
The Branch Manager vs Rabindra Kumar Mohanty & Anr. (In ... on 11 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1293 of 2018
MACA Nos.1293 & 885 of 2018
The Branch Manager, Oriental
Insurance Company Ltd (in MACA No.1293/2018)
Rabindra Kumar Mohanty (in MACA No.885/2018)
.... Appellants
Mr. G.P. Dutta, Advocate (in MACA No.1293/2018)
Mr. K. Panigrahi, Advocate (in MACA No.885/2018)
-versus-
Rabindra Kumar Mohanty & Anr. (In MACA No.1293/2018)
M. Srinivas and Another (In MACA No.885/2018)
.... Respondents
Mr. K. Panigrahi, counsel for Respondent No.1
(in MACA No.1293/2018)
Mr. G.P. dutta, counsel for Respondent No.2
(in MACA No.885/2018)
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
11.8.2022
Order No.
06. 1. The matters are taken up through hybrid mode.
2. Both the appeals being arise out of the same judgment, are
heard together and disposed of by this common order.
3. Heard Mr. G.P. Dutta, learned counsel for the insurer and Mr.
K. Panigrahi, learned counsels for injured - claimant.
4. MACA No.1293 of 2018 has been filed by the insurer
challenging the award, whereas MACA No.885 of 2018 has been filed
by the injured-claimant praying for enhancement of the compensation
amount.
5. Learned 1st MACT, Koraput in the impugned judgment dated
30th April, 2018 passed in MAC Case No.140 of 2014 has directed for
payment of compensation to the tune of Rs.3,20,000/- along with
interest @ 7% per annum from the date of filing of the claim
application, i.e. 21st November, 2014 on account of injuries sustained
by the claimant - injured in the motor vehicular accident dated 8th
March, 2014.
6. The case of the injured is that while he was going by driving a
car, the offending truck bearing registration number ORK-6285
coming from opposite direction dashed against it. The learned tribunal
while adjudicating the claim application fixed the entire negligence on
the driver of the offending truck and determined the amount of
compensation to be paid by the insurer of the offending truck.
7. Mr. Dutta, learned counsel for the insurer submits that when
police has admittedly submitted charge-sheet against both the drivers,
i.e. the injured and O.P.W.1, the driver of the offending truck, the
finding of the tribunal fixing entire negligence on the part of the driver
of the offending truck alone is irrational and thus needs to be
interfered with. As per him, the injured - claimant has contributed
50% negligence towards the accident.
8. Upon perusal of the impugned judgment it reveals from the
discussions made under Issue No.I that in the opinion of the tribunal,
the evidence whatsoever led on behalf of the insurer through O.P.W.1
is not found convincing. But the tribunal did not assign any further
reason to disbelieve the evidence of O.P.W.1 who is the driver of the
offending truck.
9. The certified copies of depositions of P.W.1 (the injured-
claimant), P.W.2 (the occupant of the car) and O.P.W.1 (the driver of
the truck) are produced in course of hearing by Mr. Dutta. Perusal of
their evidence reveals that P.W.1 in his cross-examination by the
insurer has stated that, the accident occurred when the offending truck
proceeded from the opposite direction by overtaking another vehicle
and the right side of the car as well as right side of offending truck
was dashed. P.W.2 corroborates the evidence of P.W.1 by saying that
negligence is entirely on the part of the driver of the truck. It reveals
from examination-in-chief of O.P.W.1 that the driver of the car
suddenly came to the right side of the road and dashed against the
truck as boulders were gathered on the left side of the road to cover
potholes. Both P.W.1 and O.P.W.1 admitted that the road was under
construction at the spot of accident. But this fact of overtaking another
vehicle by the offending truck at the time of accident as elicited
during cross-examination of P.W.1 is not demolished in the evidence
of O.P.W.1 nor by any other material. It is true that filing of charge-
sheet against the driver of the car (injured -claimant) would not itself
suffice the proof of his negligence in the claim application. Therefore,
on analysis of evidence adduced from both sides, the contention raised
on behalf of the insurer that both the drivers were equally negligent, is
not found supported. In view of the discussions made above, I do not
see any flaw in the approach of the tribunal in fixing the entire
negligence on the part of the driver of the truck. As such, no merit is
seen in the contention of the insurer to interfere with the aspect of
negligence determined by the tribunal.
10. Next coming to the challenge of the claimant with regard to
enhancement of the compensation amount, it is seen from the
impugned judgment that no loss of income has been granted by the
tribunal. The tribunal has granted Rs.2,35,000/- towards medical
treatment, Rs.10,000/- towards attendance cost and Rs.50,000/-
towards pain and sufferings. Admittedly, the injured has sustained
compound fracture of elbow along with other injuries. The profession
of the injured-claimant as a driver is never disputed. Thus,
considering the nature of injuries, in particular the compound fracture
of elbow, an enhanced compensation of Rs.4,00,000/- along with
interest @ 6% per annum is proposed to the parties in course of
hearing. This is agreed by Mr. Panigrahi, learned counsel for the
injured-claimant and Mr. Dutta, learned counsel for the insurer leaves
it to the discretion of the Court. As such the amount is fixed to the
said extent.
11. In the result, both the appeals are disposed of with a direction to
the insurer, i.e. Oriental Insurance Co. Ltd. to deposit an enhanced
compensation amount of Rs.4,00,000/- (four lakh) before the tribunal
along with interest @ 6% per annum from the date of filing of the
claim application, i.e. 21st November, 2014 within a period of two
months from today; where-after the same shall be disbursed in favour
of the injured-claimant on such terms and proportion to be decided by
the learned Tribunal.
12. The statutory deposit made by the insurer - Appellant in MACA
No.1293 of 2018 before this court along with accrued interest be
refunded to the Appellant - insurer on proper application and on
production of proof of deposit of the awarded amount before the
tribunal.
13. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
