Orissa High Court
Jalil Khan vs Dhirendra Kumar Mohanty on 19 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA NO.1173 OF 2007
From the Judgment/Order dated 29.09.2018 passed by the
learned 1st MACT, Mayurbhanj at Baripada in MAC Case
No.209/2016.
Jalil Khan :::: Appellant
-:: VERSUS ::-
Dhirendra Kumar Mohanty :::: Respondents
& Ors.
MACA No.145 OF 2008
Oriental Insurance :::: Appellant
Co. Ltd.
-:: VERSUS ::-
Dhirendra Kumar Mohanty :::: Respondents
& Ors.
Appeared in this case by Video Conferencing Mode / Hybrid
Mode.
For Appellant :::: Mr. K. Panigrahi, Advocate
(for Claimant)
For Respondent :::: Mr. M. Sinha, Advocate
(for Insurer-Company)
Mr. S.K. Swain, Advocate
(for Insurer-Company)
Mr. B.P. Tripahty, Advocate
(for Respondent No. 1)
Page 1 of 11
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.........
PRESENT :
THE HON'BLE MR. JUSTICE B.P.SATAPATHY
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Date of Hearing- 06.05.2022 :: Date of Order- 19.09.2022
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B.P.Satapathy, J. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard Mr. Kalpataru Panigrahi, learned counsel for the
Claimant and Mr. Mahitosh Sinha as well as Mr. S.K. Swain,
learned counsels appearing for the Insurer-Company in both the
appeals and Mr. B.P. Tripathy, learned counsel appearing for the
Respondent No. 1 in MACA No.1173 of 2007.
3. Since common question is involved in both the appeals and both
the appeals have been filed against the self same impugned
Judgment, both the appeals were heard analogously and disposed
of vide the present common order.
4. While MACA No.1173 of 2007 has been filed by the Claimant
seeking enhancement of the compensation passed by the learned
1st MACT, Keonjhar in MAC Case No. 291 of 2003 vide
Judgment dtd.20.09.2017, MACA No. 145 of 2008 has been filed
by the Company-Insurer challenging the quantum of compensation
passed vide the said Judgment.
5. Mr. Panigrahi, learned counsel appearing for the Claimant in
both the cases submitted that because of the injury sustained to the
Claimant in the accident, which took place on 05.05.2003, the
claim application in the aforesaid MAC Case No. 291 of 2003 was
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filed claiming compensation of Rs.2,50,000/- (Rs. Two lakh fifty
thousand)/- on various grounds.
6. It is submitted that during the relevant time the Claimant was
doing seasonal business and he was earning around Rs.5,000/-
(Rs. Five thousand) per month. It is also submitted that in the said
claim application while the Claimant examined himself as P.W. 1
and supported the stand taken in the claim application including
the monthly income and various documents were also exhibited in
support of his injury and treatment vide Ext. 1 to Ext. 16, but no
such witness was examined either by the Insurer-Company or by
the Owner of both the offending vehicles in question.
7. It is submitted that in absence of any contrary evidence laid by
the Insurer, learned Tribunal without proper appreciation of the
materials available on record illegally held the monthly income of
the injured at Rs.2,000/- (Rs. Two Thousand) per month and
accordingly allowed compensation to the extent of Rs.1,75,490/-
(Rs. One Lakh Seventy Five Thousand Four Hundred Ninty) +
Rs.12,000/- (Rs. Twelve Thousand) towards loss of income for six
(6) months.
8. Mr. Panigrahi, learned counsel for the Claimant submitted that
since no contrary evidence was laid by the Insurer-Company and
the Claimant in support of his income at Rs.5,000/- (Rs. Five
Thousand) per month examined himself by corroborating the said
fact, learned Tribunal should not have held the monthly income at
Rs.2,000/- (Rs. Two Thousand).
9. Mr. Panigrahi submitted that since the Claimant was doing
seasonal business, he could not produce any document in support
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of his monthly income and if at all learned Tribunal disbelieved
the statement of the Claimant regarding his monthly income, then
the notional income of the injured should have been taken at
Rs.3,000/- (Rs. Three Thousand) per month in view of the
decision rendered by the Hon'ble Apex Court in the case of Laxmi
Devi & Ors. Vs. Mohammad Tabbar & Anr. reported in 2008 (2)
TAC 394 (SC). Hon'ble Court while upholding the finding in Para
7 held as follows:-
"7. Considering the above principles in this case, we must
say that the High Court has definitely erred in bringing down
the multiplier to 12. It is to be seen that in this case the
deceased was 35 years old. The claimants are his wife and
four minor daughters. Even as per the Second Schedule the
multiplier in case of the persons between 35 to 40 years is 16.
In the present case the rate of interest granted is only 6%
considering the general rate of interest prevalent in 2004. In
our opinion, therefore, the proper multiplier would be 14 as
the value of the notional income has been increased. It was
nobody's case that the deceased was not working at all. His
wife has entered in the witness box and had asserted that the
earned Rs. 140/- per day. Even if we ignore the exaggeration,
the figure arrived at by the High Court at Rs. 100/- per day
and Rs. 3,000/- per month appears to be correct. However,
considering that the claimant would get only 6% interest, we
would chose to grant the multiplier of 14 instead of 12.
Accordingly the notional income as applied would be Rs.
24,000 × 14= Rs. 3,36,000/- and to this will be added the
other compensation like Rs. 2,000/- as funeral expenses, Rs.
5,000/- for the loss of consortium to the widow and Rs.
2,000/- for the loss of estate. The claimants would, therefore,
be entitled to a sum of Rs. 3,45,000/-. The said sum shall
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carry the interest at the rate of 6% per annum from the date
of claim petition."
10. Therefore, it is submitted that the action of the learned
Tribunal in holding the monthly income at Rs.2,000/- (Rs. Two
Thousand) per month during the relevant point of time is not based
on record and contrary to the decision of the Hon'ble Apex Court.
It is also submitted that since because of the accident the Claimant
sustained injury that too amputation of his right leg near knee and
due to such injury he became unable to continue with his business,
learned Tribunal did not award any compensation towards future
prospect in terms of the decision rendered by the Hon'ble Apex
Court in the case of Smt. Sarala Verma and Ors. Vs. Delhi
Transport Corporation and Another.
11. Hon'ble Apex Court in the case of Smt. Sarla Verma 2009 (2)
TAC 677 (SC) in Para 11 has held as follows:-
"11. In Susamma Thomas, this Court increased the income
by nearly 100%, in Sarla Dixit, the income was increased
only by 50% and in Abati Bezbaruah the income was
increased by a mere 7%. In view of imponderables and
uncertainties, we are in favour of adopting as a rule of
thumb, an addition of 50% of actual salary to the actual
salary income of the deceased towards future prospects,
where the deceased had a permanent job and was below 40
years. Where the annual income is in the taxable range, the
words 'actual salary' should be read as "actual salary less
tax'. The addition should be only 30% if the age of the
deceased was 40 to 50 years. There should be no addition,
where the age of deceased is more than 50 years. Though the
evidence may indicate a different percentage of increase, it is
necessary to standardize the addition to avoid different
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yardsticks being applied or different methods of calculation
being adopted. Where the deceased was self implode or was
on a fixed salary (without provision for annual increments
etc.), the Court will usually take only the actual income at the
time of death. A departure therefrom should be made only in
rare and exceptional cases involving special circumstances."
12. It is also submitted that relying on the Constitution Bench
decision of the Hon'ble Apex Court in the case of National
Insurance Company Ltd. Vrs. Pranoy Sethi, Hon'ble Apex Court
in Para 10 of the Judgment in the case of Jagdish Vrs. Mohan &
Ors. (2018 (2) TAC 14 (SC)) has held as follows:
"10 In the judgment of the Constitution Bench in Pranay Sethi
(supra), this Court has held that the benefit of future prospects
should not be confined only to those who have a permanent job
and would extend to self-employed individuals. In the case of a
self-employed person, an addition of 40 per cent of the
established income should be made where the age of the victim
at the time of the accident was below 40 years. Hence, in the
present case, the appellant would be entitled to an enhancement
of Rs. 2400/- towards loss of future prospects."
13. It is also submitted that even though as per Part II of Schedule
I of the Employee's Compensation Act, 1923 the permanent
disability due to such amputation of the right leg would be at 50%,
but since due to such injury the Claimant became permanently
disable to run his business, the said disability should be taken at
100% or at best 75%. It is also submitted that taking into account
the age of the injured at the relevant point of time the multiplier 14
should have been applied.
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14. Mr. Panigrahi further submitted that even though learned
Tribunal after going through the materials placed before it, came
to a finding that the accident occurred due the rash and negligent
driving of the driver of the offending vehicle bearing Registration
No. OR-09-C-6476, which was duly insured with the Company of
Respondent No. 3-Insurer, but learned Tribunal without any
reason or basis and relying on the police papers apportioned the
liability at the rate of 50:50 in between the Insurer-Company and
the Owner of the other vehicle i.e. OR-M-5155 represented by the
Respondent No. 2 in MACA No.1173 of 2007. It is submitted that
in view of the decision of this Court reported in 1994 ACJ P-1301,
in a claim proceeding contents of charge sheet cannot be treated as
evidence and Tribunal must rely upon the evidence led before it.
This Court in the said reported case in Para 6 held as follows:-
"6. In view of the rival submissions of the parties, the first
question that arises for consideration is whether the Tribunal
was justified in holding that the deceased was travelling on
the offending truck as a passenger and succumbed to the
injury on account of the accident of the truck in question. The
sole basis for the Tribunal to come to the aforesaid
conclusion is the contents of a charge-sheet filed in the
criminal case. The contents of a charge-sheet cannot possibly
be treated as an evidence in the claim proceedings. The
Tribunal obviously committed gross error of law in relying
upon the said charge-sheet to come to the conclusion that the
deceased was travelling on the truck as a passenger, On the
other hand, the positive evidence of the claimants that the
deceased was a pedestrian and the truck came and knocked
him down has not been impeached in any manner by way of
cross-examination. There was no justification on the part of
the Tribunal to ignore that evidence of the claimants. In the
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aforesaid premises, the finding of the Tribunal that the
deceased was travelling on the truck cannot be sustained and
the said finding is accordingly set aside. On the evidence on
record, it must be held that the deceased was a pedestrian
and while going on the rond, the offending truck came and
knocked him down."
15. Making all such submissions, Mr. Panigrahi, learned counsel
for the Claimant submitted that not only the compensation amount
is required to be enhanced substantially, but also the entire
compensation amount should be paid by the Company-Insurer
instead of apportionment @ 50:50 in between the Company-
Insurer and the Owner of the other vehicles.
16. Mr. Sinha along with Mr. Swain, learned counsels appearing
for the Company-Insurer on the other hand submitted that since
the accident occurred due to the head on collision in between the
two vehicles bearing Registration No. OR-09-C-6476 and OR-M-
5155 learned Tribunal taking into account the investigation
conducted and charge sheet submitted by the local police vide Ext.
1 & 2 rightly saddled the liability @ 50:50 in between the
Company and the Owner of the other Vehicle bearing Registration
No. OR-M-5155. In support of the said submission Mr. Sinha and
Mr. Swain relied on a decision of the Hon'ble Apex Court
reported in 2007 AIR SCW 3591 as well as another decision
reported in 2009 AIR SCW 992.
17. It is also submitted by learned counsels appearing for the
Company-Insurer that since no documentary evidence was filed
and exhibited by the Claimant in support of his monthly income,
the monthly income of the Claimant should have been assessed as
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per the prevailing minimum wages prescribed for unskilled
labourer, but learned Tribunal illegally assessed the said income at
Rs.2,000/- (Rs. Two Thousand) per month.
18. Making all such submission, learned counsels appearing for
the Insurer-Company submitted that no illegality has been
committed by the learned Tribunal in apportioning the liability @
50:50 in between the Company and the Owner of the other
vehicle, but also the compensation amount needs reduction by this
Court. Even though Respondent No. 1, the Owner of the offending
vehicle No.0R-09-C-6476 appeared in MACA No. 1173 of 2007,
but nobody was there on behalf of the said Owner, when the
matter was heard by this Court.
19. Heard learned counsel appearing for the Parties. Perused the
materials available on record. This Court after going through the
same finds that save and except the evidence laid by the Claimant
as P.W. 1 and the documents exhibited by him vide Ext.1 to
Ext.16, no evidence was laid either orally or documentary by the
Company-Insurer. Therefore, in absence of any contrary evidence
laid by the Company-Insurer, learned Tribunal should not have
assessed the monthly income of the Claimant at Rs.2,000/- (Rs.
Two Thousand) per month.
20. In view of the decision relied on by Mr. Panigrahy, learned
counsel appearing for the Claimant, the monthly income of the
Claimant should have been assessed on notional basis i.e. at
Rs.3,000/- (Rs. Three Thousand) per month instead of assessing
the same at Rs.2,000/- (Rs. Two Thousand) without any reasons or
basis.
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21. Similarly this Court finds that due to the injury since the
Claimant's right leg was amputed and the Claimant became unable
to continue with his business, compensation towards future
prospect should have been assessed at 30%. But learned Tribunal
never allowed any compensation towards future prospect as
revealed from the impugned Judgment. This Court also finds that
even though the learned Tribunal in Para 8 of the Judgment came
to a clear finding that the accident occurred due to the rash and
negligent driving of the offending vehicle insured with the
Company-Insurer, the liability in its entirety should have been
fixed on the Insurer-Company instead of apportioning the same in
between the Company and the Owner of the other vehicle. The
decision relied on by the learned counsels appearing for the
Company-Insurer are not applicable to the facts of the case as no
evidence whatsoever was led by the Company before the Tribunal.
22. In view of the analysis made hereinabove and taking into
account the fact that the accident had taken place in the year 2003,
this Court instead of remanding the matter for fresh adjudication
thinks it just and proper to enhance the compensation to
Rs/3,00,000/- (Rs. Three Lakhs) consolidated. Since it is
submitted that the Company-Insurer has paid its share of
Rs.95,340/- (Rs. Ninety five thousand three hundred forty), this
Court directs the Company-Insurer to pay the balance amount of
Rs.2,04,660/- (Rs. Two lakh four thousand six hundred sixty) to
the Claimant within a period of eight (8) weeks from the date of
receipt of this Order.
21. It is observed that if the Company-Insurer fails to pay the
balance amount as indicated hereinabove within the time
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stipulated by this Court, the said balance amount shall carry
interest @ 6% per annum for the period starting from the expiry of
period of eight (8) weeks till its payment. It is further observed
that only after payment of the balance amount in favour of the
Claimant as directed by this Court, the Company will be permitted
to take refund of the statutory deposit along with accrued interest
from the Registry of this Court as deposited in MACA No.145 of
2008.
22. Both the appeals are disposed of with the aforesaid observation
and directions.
(Biraja Prasanna Satapathy)
Judge
Orissa High Court, Cuttack
The 19th September, 2022/Sneha
