Orissa High Court
Aswini Kumar Behera vs Pravat Kumar Das And Another on 3 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1089 of 2017 And MACA No.170 of 2018
MACA No.1089 of 2017
Aswini Kumar Behera .... Appellant
Mr.B.N.Samantaray, Advocate
-versus-
Pravat Kumar Das and another .... Respondents
Ms.N.Mohanty, Advocate for Respondent No.2
AND
MACA No.170 of 2018
National Insurance Co.Ltd. .... Appellant
Ms.N.Mohanty, Advocate
-versus-
Aswini Kumar Behera and and another .... Respondents
Mr.B.N.Samantray, Advocate for Respondent No.2
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
03.11.2022
Order No.
2. 1. The matter is taken up through Hybrid mode.
2. Heard Mr.Samantray, learned counsel for the claimant
and Mrs.Mohanty, learned counsel for the Insurer.
3. Both the appeals arise out of the same judgment dated
11th August, 2017 passed by the First Motor Accident Claims
Tribunal, Kendrapara, in MAC Case No.03 of 2015, wherein
compensation to tune of Rs.4,50,000/- along with interest @6%
per annum has been granted from the date of filing of the claim
application on account of injuries sustained by the claimant in the
motor vehicular accident dated 7th December, 2014.
4. Both the appeals filed by the Insurer and Claimant
respectively are challenging the award. The Insurer while
challenging the negligence aspect as well as the quantum of
compensation, the claimant questions the finding of the Tribunal
fixing 50% negligence on him towards the cause of accident.
5. Mrs. Mohanty contends for the Insurer that
involvement of the offending motorcycle bearing registration No.
OD-29A-2937 has been implanted to manage the compensation.
She further submits that loss of income as well as medical
expenses are not duly established through evidence on record.
On the other hand, Mr. Samantray submits that the findings of the
Tribunal that the injured was riding the other motorcycle at the
time of accident is without any basis and therefore, attribution of
50% negligence upon him by the Tribunal is erroneous.
6. As per the claim application, while the injured claimant
was standing on the extreme left side of the road, the offending
motorcycle dashed against him and the other motorcycle of his
friend was parked there. Three witnesses have been examined on
behalf of the claimant and no evidence was adduced by the
Insurance Company. P.W.1 is the injured claimant himself, P.W.2
is the eyewitness of the accident and P.W.3 is an employee of the
Office of C.D.M.O., Kendrapara. As per P.W.1, while he along
with his friend were standing on the left side of the road, the
offending motorcycle dashed against them. As per P.W.2, when
the injured claimant was coming in a bicycle on the extremely left
side of the road, the offending motorcycle dashed against him.
The Tribunal has elaborately discussed the same and came to the
conclusion that in view of the discrepancies stated by the
witnesses as well as in the contents of the F.I.R., it is established
that the injured was riding the other motorcycle at the time of
accident and thus has contributed 50% negligence towards the
cause of the accident. The Tribunal has further taken note the fact
of lodging of F.I.R. by the conducting lawyer. It is the settled
principle that in claim applications though the appellate court has
the power to re-appreciate the evidence, but still it should do such
appreciation in a limited case only. In the instant case, when
discrepancies in the contents of the F.I.R., in the claim petition
and in the evidence of P.Ws.1 & 2 are discernible, the conclusion
of the Tribunal to fix equal negligence on the drivers of both
motorcycles cannot be faulted with. While agreeing with the
findings of the Tribunal, this Court further observes that the
claimant has suppressed relevant fact towards the cause of
accident. As such, this Court does not find any reason to interfere
with the findings of the Tribunal contributing 50% negligence
each to the driver of the offending motor cycle and the claimant.
7. With regard to the quantum of compensation, what is
submitted on behalf of the Insurer that future loss of income
counted to the extent 50% loss of functional disability due to the
injures is not sustainable. It needs to be stated here that the nature
of injuries as mentioned in Ext.5 includes injuries to the head.
Further, disability certificate under Ext.8 certifies that he
sustained locomotor disability to the extent of 60%, which is
permanent physical impairment. The injured is a motor mechanic
and earning Rs.5,000/- per month in the opinion of the Tribunal.
The Insurer has not adduced any rebuttal evidence against the
evidence produced from the side of the claimant and thus, the
finding of the Tribunal with regard to avocation of the injured and
his income is confirmed. If the avocation of the injured as a motor
mechanic is accepted, then the assessment of the Tribunal about
loss of functional disability to the extent of 50% due to the
injuries cannot be faulted with.
8. A further submission is made by Mrs. Mohanty that
the total sum of Rs.1,50,000/- as granted by the Tribunal towards
cost of treatment, hospitalization etc, is excessive. The same is
found without merit. The injured underwent treatment in the
hospital for a considerable period, which is around one month.
Therefore, considering the nature of injuries and the period of
treatment, the amount of Rs.1,50,000/- (One lakh fifty thousand)
as granted by the Tribunal cannot be considered as excessive.
9. Thus upon going through the impugned judgment as
well as the copies of depositions and exhibits filed by Mr.
Samantray in course of hearing, and considering the grounds of
challenge, no ground is seen to interfere with the award.
10. In the result, both the appeals are dismissed.
11. The Insurer-National Insurance Co. Ltd. is directed to
deposit the entire compensation along with interest as per the
direction of the Tribunal within a period of two months from
today; which shall be disbursed in favour of the claimant on same
terms and proportion fixed by the Tribunal.
12. The statutory deposit made by the Insurer in MACA
No.170 of 2018 with accrued interest thereon be refunded to him
on proper application and on production of proof of deposit of the
award amount before the learned Tribunal.
13. Copies of the documents filed by Mr.Samatray are kept
on record.
14. Urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
C.R.Biswal
