Orissa High Court
Divisional Manager vs Nilambara Patra And Another on 19 July, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.503 of 2017
Divisional Manager, Oriental
Insurance Company Ltd. .... Appellant
Mr. M. Sinha, Advocate
-versus-
Nilambara Patra and Another .... Respondents
Mr. A. K. Behera, Advocate
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
19.7.2022
Order No.
09. 1. The matter is taken up through hybrid mode.
2. Heard Mr. M. Sinha, learned counsel for the insurer - Appellant
and Mr. A.K. Behera, learned counsel for claimant - Respondent
No.1.
3. Present appeal by the insurer is directed against the impugned
judgment dated 6th March, 2017 of learned 1st MACT, Jajpur passed in
MAC No.150 of 2012 wherein compensation to the tune of
Rs.8,32,000/- along with interest @ 6% per annum from the date of
filing of the claim application, i.e. 28th December, 2012 has been
granted on account of injuries sustained by the claimant in the motor
vehicular accident dated 5th May, 2012.
4. The case of the claimants before the learned Tribunal was that
on 5th May, 2012 while he was going to his office in the bicycle, the
offending tractor bearing registration number OR-02-F-2018 coming
in rash and negligent manner with a high speed from the front, dashed
against him resulting the accident. As a result of the same the claimant
sustained spinal cord injuries and was under treatment in different
hospitals. The claimant, as per the disability certificate issued under
Ext.2, sustained traumatic paraplegia (post-operative). It is the further
case of the claimant that he was getting monthly remuneration by
working as a Sampler in a private company. But the learned Tribunal,
disbelieving such amount of income as claimed, assessed his income
at Rs.4,200/- per month by taking the daily wage rate at Rs.140/-. The
learned Tribunal accordingly determined the compensation to the
amount stated above.
5. Mr. Sinha, learned counsel for the Appellant challenges the
award of the tribunal by stating that, first, the involvement of the
offending tractor in the accident is doubtful for the reason that in the
F.I.R. it was stated to be an unknown vehicle and none of the
witnesses before the police have stated the registration number of the
vehicle and the F.I.R. was lodged after four days of the alleged
occurrence. Secondly, it is contended that as per the evidence of the
claimant he has not lost his service in the company where he was
earlier serving and as such, there is no loss of future earning. But the
tribunal has granted loss of future earning to the extent of
Rs.7,25,760/- which is unsustainable in view of the statement of the
claimant that he has not lost his job.
6. Mr. Behera, learned counsel for the claimant on the contrary
submits that, it is not so stated by the claimant in his evidence. In fact,
the claimant has been paralyzed as a result of the injuries sustained in
the accident.
7. On the backdrop of such rival contentions made, perusal of the
certified copy of the evidence as produced by Mr. Sinha, learned
counsel in course of hearing, it reveals that the claimant as P.W.1 has
stated in his cross-examination to the effect that, "till today I am in
service under the company in which I was earlier working." The
claimant in his examination-in-chief has stated that he was working as
Sampler in a private company, namely Griffith India Pvt. Ltd. and
presently getting consolidated amount of Rs.6,996/- from the
company after the accident and in support of the same, he exhibited
the salary slip for the month of June, 2015 and May, 2015 under Ext.4
and Ext.4/a.
8. It is true that the tribunal has determined the income of the
claimant by taking the daily wage rate at Rs.140/- and so it is not the
case that any fixed amount of salary has been taken by the tribunal for
determining the income of the claimant by believing his service as a
Sampler in the private company as stated by the claimant. So, what is
contended by Mr. Sinha to discredit the version of the claimant as
well as the finding of the learned tribunal that the claimant is not
entitled for getting any amount towards future loss of earning for he is
serving in his job even after the accident, is not found a conceivable
statement. It is for the reason that the claimant in his evidence has
stated to be getting consolidated amount from his job and secondly, no
evidence has been led from the side of the insurer to rebut such
contention of the claimant. It is to be reiterated here that the disability
certificate as brought on record under Ext.2 is not disputed through
any rebuttal evidence from the side of the insurer and the contention
of the claimant that he was receiving the consolidated amount is
enough to establish his case of loss of earning coupled with the
disability up to 90%. As such the claimant is found entitled for loss of
future earning keeping in view the extent of disability up to 90% as
per Ext.2. But while computing the same, the factum receipt of
consolidated amount by the claimant from his company after the
accident and disability cannot be thrown aside completely as the
tribunal has done.
9. Thus considering the statement of the claimant made in his
evidence that presently he is getting consolidated amount of
Rs.6,996/- from the company, the loss of future earning is required to
be computed 50% less than the amount per month counted by the
Tribunal. Further 40% of the same (Rs. 840) needs to be added thereto
towards future prospects.
10. So far as the contention of the Appellant regarding non-
involvement of the offending tractor is concerned, the same is rejected
outright keeping in view the evidence of the claimant which is
supported by police papers and there is no rebuttal evidence from the
side of the insurer.
11. The further contention of the Appellant that the offending
vehicle had no permit is also rejected in absence of any material about
the same and the clear finding of the tribunal in the impugned
judgment that the permit is valid till 27th March, 2013.
12. Accordingly, the loss of future earning is assessed at
Rs.5,08,032/- (i.e. Rs. 2940 X 12 X 16 = Rs.5,64,480 X 90 / 100).
Adding Rs.1,05,847/- thereto towards cost of medicines, the same
comes to Rs.6,13,879. Further adding Rs.50,000/- towards cost of
attendant and nutrition charges including future medicine cost, the
same comes to Rs.6,63,879/-. Considering the period of treatment
which is 45 days as per the claim of the claimant, an amount of
Rs.6,300/- is also added towards actual loss of earning. Thus, the total
compensation comes to Rs.6,70,179/- which is rounded to
Rs.6,70,200/- and the claimant is found entitled to get the same from
the insurer - Appellant.
13. In the result the appeal is disposed of with a direction to the
Appellant - insurer to deposit the reduced compensation of
Rs.6,70,200/- (six lakh seventy thousand two hundred) before the
tribunal along with interest @ 6% per annum from the date of filing of
the claim application, i.e. 28th December, 2012 within a period of two
months from today; where-after the same shall be disbursed in favour
of the claimants on such terms and proportion to be fixed by the
learned Tribunal.
14. The statutory deposit made by the appellant 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.
15. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
