Orissa High Court
Divisional Manager vs Girish Chandra Sahoo And Others on 6 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.256 of 2015
Divisional Manager, National
Insurance Company Ltd. .... Appellant
Mr. Nibas Chandra Mishra, Advocate
-versus-
Girish Chandra Sahoo and Others .... Respondents
Mr. B.B. Das on behalf of Mr. P.R. Singh,
counsel for Respondent No.1
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
6.12.2022
Order No.
11. 1. The matter is taken up through hybrid mode.
2. Heard Mr. N.C. Mishra, learned counsel for the Appellant and
Mr. B.B. Das on behalf of Mr. P.R. Singh, learned counsel for the
claimant - Respondent No.1. None appears on call for other
Respondents though name of a set of lawyers is indicated in the list.
3. Present appeal by the insurer is against the impugned judgment
dated 17th November, 2014 of the learned 1st MACT, Angul passed in
MAC Case No.109 of 2009, wherein compensation to the tune of
Rs.4,69,600/- along with interest @ 7% per annum from the date of
filing of the claim application has been granted on account of injuries
sustained by the claimant in the motor vehicular accident dated 17th
June, 2004.
4. It is contended by Mr. Mishra, learned counsel on behalf of the
Appellant that the accident is resulted as the truck bearing registration
number ORN 9428 dashed the Mini bus bearing registration number
OR 05B 4571, where the injured was going as a passenger. Mr.
Mishra thus submits that the entire negligence is on the driver of the
truck and the driver of the Mini bus is not negligent for the cause of
accident. The Appellant being the insurer of the mini bus is therefore
not liable to indemnify the compensation amount.
5. Upon perusal of the FIR, a copy of which is produced in course
of hearing by Mr. Mishra, it reveals that the offending truck dashed
against the mini bus from behind and as a result of the accident, some
of the passengers were thrown out of the mini bus. Police has
submitted charge sheet against the drivers of both the vehicles stating
them equally negligent for the cause of accident. It is seen that the
tribunal under issue No.I has concluded that, both the drivers of the
bus as well as the truck are responsible for the accident for not only
driving their vehicles rashly and negligently but also in high speed.
However in the ordering portion, the tribunal has directed for payment
of entire compensation amount by the present Appellant, who is
insurer of the offending bus. It needs to be mentioned here that the
offending truck was admittedly not insured on the date of accident.
6. In view of the evidence brought on record through P.W.1 and
P.W.2, who are the injured himself and another eye witness, and
keeping in view the police investigation report, the conclusion arrived
by the tribunal to hold both the drivers negligent for the cause of
accident is confirmed. This court is accordingly of the opinion that
both the drivers are equally negligent for the cause of accident. So
logically, the liability for compensation should be divided equally
among both owners.
7. Now coming to the question of quantification of compensation,
it is submitted on behalf of the Appellant that the assessment of loss
of future income to the tune of Rs.2,85,600/- made by the tribunal is
erroneous since the extent of physical disability does not justify
functional disability of the injured at all.
8. It is seen from the impugned judgment that, the tribunal while
assessing future loss of income took the income of the injured at
Rs.5000/- per month, then deducted 1/3rd towards personal expenses
and derived the proportionate loss income @ 42%. This approach and
procedure adopted by the tribunal is found completely erroneous. It is
for the reason that in case of injury, no need is there for deducting
personal expenses and secondly, the functional disability of the
injured has not been assessed properly.
9. According to the claimant he was working as a Programmer in
the Department of MCA in Trident Academy of Creative Technology
and getting monthly remuneration of Rs.5000/-. He was aged about 32
years on the date of accident. The disability certificate under Ext.9
and Ext.17 does not speak about the nature of disability. Both the
certificates simply mention that percentage of physical disability is to
the extent of 42%. The injured claimant (PW.1) has not said anything
in his evidence regarding the nature of disability suffered by him.
However, the evidence of P.W.3, who is a doctor, is important to refer
here. P.W.3 has stated that he is a Medicine Specialist and he never
treated the injured - claimant. In the examination-in-chief he has
stated that "he was suffering from Post Traumatic Sole Paresis. There
is very remote chance of recovery of Sri Sahoo". In the cross-
examination it is explained by said P.W.3 that: - 'Sole' as mentioned
in Ext.17 means 'foot'. The word 'Paresis' means 'Neural Weakness'.
It is not a fact that Paresis means only weakness. It is a fact that the
word 'traumatic' means 'injury'. Said P.W.3 has further explained
that "with disability of this nature as pointed out in Ext.17, a person
can do all mental work but cannot perform heavy physical work. It is
a fact that a person can pursue his routine activities but not
smoothly."
10. Keeping in view the aforesaid evidence of P.W.3, it can be
opined that, the disability suffered by the injured, the nature of which
is never mentioned in the disability certificates itself, is not a mental
disablement but a physical one and that, by such disability though he
cannot perform heavy physical work but the same would not certainly
affect his day today work. Thus, in the opinion of this court, the
functional disability is assessed up-to 20%, keeping in view the
avocation of the injured as a Programmer.
11. No reason is found to interfere with assessment of monthly
income of the injured at Rs.5000/-. As such, his loss of future earning
is computed at Rs.5000 x 12 x 20% x 16 = Rs.1,92,000/-.
12. There being no further dispute raised either with regard to
treatment expenses or any other head of count, no reason is found to
interfere with the compensation amount further. Accordingly, the
compensation amount is liable to be reduced by Rs.93,600/- only and
doing so, the compensation amount is re-fixed at Rs.3,76,000/-.
13. Accordingly, the claimant is found entitled for compensation
amount of Rs.3,76,000/-, payable along with interest @ 6% per
annum, and to be shared equally by the owners of the truck
(Respondent No.5) and the present Appellant - Insurer.
14. At this stage Mr. Mishra further submits that the driver of the
offending mini bus was not having a valid driving licence on the date
of accident and the same is clear from Ext.A/2.
The tribunal has discussed such aspect elaborately at para-13 of
the impugned judgment and keeping in view the contents of Ext.A and
A/2, no merit is seen in the submission of Mr. Mishra to anyway
interfere with the conclusion of the tribunal regarding the same.
Therefore, such contention raised on behalf of the Appellant to
dispute validity of the driving licence of the driver of the offending
bus is rejected.
15. In the result the appeal is disposed of with a direction to the
insurer - Appellant to deposit 50% of the modified compensation
amount of Rs.3,76,000/- (three lakh seventy six thousand) before the
tribunal along with interest @ 6% per annum from date of filing of the
claim application within a period of two months from today, where-
after the same shall be disbursed in favour of the claimant -
Respondent No.1 on such terms and proportion to be decided by the
learned tribunal.
16. It goes without saying that the balance 50% of the
compensation amount, is to be paid by the owner of the offending
truck, i.e. present Respondent No.5, namely Smt. Sakuntala Agrawal
and upon failure of payment by Respondent No.5, the injured -
claimant is at liberty to realize the same from her in accordance with
law.
17. The statutory deposit made by the insurer - Appellant before
this court along with accrued interest be refunded to the Appellant on
proper application and on production of proof of deposit of the
awarded amount before the tribunal.
18. The copies of depositions and exhibits, as produced by Mr.
Mishra in course of hearing, are kept on record.
19. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
