Orissa High Court
Icici Lombard General Insurance vs Praveen Raj Parichha And Another on 20 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.26694 of 2017
(Through hybrid mode)
ICICI Lombard General Insurance .... Petitioners
Com. Ltd. and another
Mr. G. P. Dutta, Advocate
-versus-
Praveen Raj Parichha and another .... Opposite Parties
Mr. P. K. Panda, Advocate
CORAM: JUSTICE ARINDAM SINHA
ORDER
20.09.2022
Order
No.
10. 1. Mr. Dutta, learned advocate appears on behalf of petitioners
(insurance company). He submits, under challenge is award dated 18th
July, 2017, whereby there was direction upon his client to pay
compensation of Rs.75,000/- in addition to cost of Rs.1000/- and
interest at 8% per annum in event payment was not made within one
month thereof. On query from Court he submits, the writ petition was
presented on 20th December, 2017 but though there was interim order
dated 7th May, 2018, made by coordinate Bench directing interim stay
of impugned award, his client was not required to make any deposit.
2. Facts are, he submits, that the insured took a motor accident
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policy. It covered permanent disability at a maximum of Rs.1,00,000/-.
He relies on disability certificate dated 5th April, 2017 issued by City
Hospital Berhampur to demonstrate that the diagnosis on injury was
stated to be 'temporary' and therefore not covered under the policy on
permanent disability.
3. The second contention is, private opposite party successfully
obtained judgment dated 24th September, 2019 for compensation
from Motor Accident Claims Tribunal (MACT), Berhampur in MAC
Case no.33 of 2018 (Praveen Raj Parichha vs. Smt. S. Padmavathi
and others). Compensation awarded therein to private opposite party
was Rs.11,60,500/-. Mr. Dutta then relies on view expressed by a
Division Bench of Allahabad High Court in Kalawati v. Balwant
Singh, reported in AIR 1985 Allahabad 124, paragraph 15
reproduced below.
"15. The provisions of Section 110-AA of the M. V. Act
are similar in purport. Section 110-AA bars more than
one claim but leaves the claimant, to choose the forum.
Whether he files the claim before the Accidents Claims
Tribunal or before the Commissioner under
the Compensation Act, will depend on his volition. But
the law is clear that he cannot claim compensation for
loss or injury arising out of the same accident more than
once. This conclusion would conclude the appeal but we
would examine a fews cases and also examine the
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contention canvassed in this appeal."
He also relies on similar view expressed by a learned Single Judge of
Karnataka High Court in New India Insurance Co. Ltd., Belagavi v.
Rekha Anil Shelke, available at AIRONLINE 2018 KAR 1851,
paragraph 12.
4. He submits, section 167 in Motor Vehicles Act, 1988
correspond to section 110-AA in repealed Motor Vehicles Act, 1939.
Section 167 is reproduced below.
"167. Option regarding claims for compensation in
certain cases.--Notwithstanding anything contained in
the Workmen's Compensation Act, 1923 (8 of 1923)
where the death of, or bodily injury to, any person gives
rise to a claim for compensation under this Act and also
under the Workmen's Compensation Act, 1923, the
person entitled to compensation may without prejudice
to the provisions of Chapter X claim such compensation
under either of those Acts but not under both."
5. Mr. Panda, learned advocate appears on behalf of private
opposite party. He draws attention paragraph 10 in impugned award. It
is quoted below.
"10. Admittedly, here is a case where the doctors found
disability in respect of both legs and both arms of the
applicant, who was a young man of 29 years to the
extent of 75% even after one year of the accident vide
certificate dt.05.04.2017 (Ext.7). No doubt, they have
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endorsed "temporary" against the Column No.2- "this
condition is likely to be improve" but that does not mean
the condition would definitely improve. There is no
certainty in the matter. It may improve or may not
improve. When two views are possible then the view that
would be favourable to the applicant shall be taken into
consideration more so when the doctors specifically
mentioned the extent of disability of 75%, under the
heading "Permanent physical impairment / mental
disability (in %)". Considering the percentage of
disability to the extent of 75%, the damage that was
done to both the legs and the hands, the age of the
applicant and loss of his future prospects, we are of the
unanimous finding that he shall be correspondingly
awarded i.e., 75% of the maximum compensation of
Rupees One Lakh that is provided in the terms and
conditions of the policy, which comes to Rs.75,000/-"
6. He submits, the point on section 167 was not urged before the
Permanent Lok Adalat (PLA) and therefore cannot be a ground taken
in this Court. Mr. Dutta submits, fact that private opposite party had
claimed compensation before the Tribunal was a subsequent
discovery. He submits further, the judgment is subject of appeal
preferred by Oriental Insurance Company Limited.
7. Perused the disability certificate. It says, certification is on
evaluation as per guidelines and shown against relevant disability in
the table therein. The table has columns, inter alia, on diagnosis and
permanent physical impairment/mental disability (in %). The
diagnosis is Quadriparesis. The certificate also says affected part of
body are both legs and both arms. Under column of permanent
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physical impairment/mental disability, 75% has been stated. This is
followed by comment that the condition is likely to improve
(temporary). Appreciation of this information given in the certificate
makes it clear that private opposite party suffered permanent physical
impairment, percentage of which is likely to improve. The certificate
is dated 5th April, 2017, as aforesaid and valid till 4th April, 2022.
There has been no disclosure on part of petitioner to show that private
opposite party has completely recovered, for conclusive evidence that
the injury resulting in physical disability was not permanent.
8. Present section 167 bars relief to be claimed both under said
the 1988 Act as well as Workmen's Compensation Act, 1923.
Undisputedly, private opposite party had applied and obtained
judgment from MACT for compensation on 3rd party coverage of
motor insurance policy taken by owner of the offending vehicle.
Private opposite party had also claimed under the policy held by him,
on having met with the accident resulting in his permanent disability,
albeit on a percentage, regarding locomotor disability on both arms
and legs. Claim on his policy was prosecuted before the PLA on
allegation of deficiency in public utility service of insurance. It was
not made on basis of any provision in the 1923 Act. In the
circumstances, both Kalawati (supra) and Rekha Anil Shelke (supra)
are of no aid to petitioner.
9. The writ petition is found to be without merit. It is dismissed
and consequently, the interim order vacated.
(Arindam Sinha)
Judge
Prasant
