Orissa High Court
Iffco Tokio General Insurance vs Jawan Nath And Another on 28 September, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.260 of 2019 & MACA No.717 of 2019
In MACA No.260 of 2019
IFFCO TOKIO General Insurance .... Appellant
Company Limited
Mr. G.P. Dutta, Advocate
-versus-
Jawan Nath and another .... Respondents
Mr. D.K. Mohapatra, Advocate for Respondent No.1
In MACA No.717 of 2019
Jawan Nath .... Appellant
Mr. D.K. Mohapatra, Advocate
-versus-
IFFCO TOKIYO General Insurance .... Respondents
Company Limited and another
Mr. G.P. Dutta, Advocate for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
28.09.2022
Order No.
MACA No.260 of 2019 & MACA No.717 of 2019
07. 1. Heard Mr. G.P. Dutta, learned counsel for the Insurance
Company and Mr. D.K. Mohapatra, learned counsel for the
claimant.
2. Both the appeals being arise out of the same judgment dated
24.12.2018 of learned 3rd MACT, Jagatsinghpur wherein
compensation to the tune of Rs.17,99,680/- has been granted
along with interest @7% per annum to the claimant from the date
of filing of the claim application, i.e.,09.07.2014 on account of
injury sustained by him in the motor vehicular accident dated
09.02.2014, are heard together and disposed of by this common
order.
3. MACA No.260 of 2019 has been filed by the insurer
challenging the award and MACA No.717 of 2019 has been filed
by the claimant praying for enhancement of the compensation
amount.
4. Mr. G.P. Dutta, learned counsel for the Insurance Company
advancing his submission contends that the injured-claimant after
filing his affidavit evidence before the learned Tribunal did not
turn up for cross-examination and thus his evidence was
discarded. Subsequently he renewed his driving license on
27.01.2017 for transport vehicles and therefore, the loss of future
income and addition of future prospects thereon made by the
Tribunal are liable to be dropped.
5. On the other hand, Mr. D.K. Mohapatra, learned counsel for
the injured-claimant contends that the actual medical expenses
incurred by the injured have not been counted by the Tribunal and
secondly, the income of the injured has been counted at lesser
amount without any valid point.
6. It is seen from the impugned judgment that the injured-
claimant after filing his evidence affidavit did not turn up for
cross-examination despite directions of the court on the ground of
mental unsoundness. Since he was not cross-examined, the
Tribunal discarded out his evidence entirely. Besides the
claimant, four other witnesses were examined from his side
including P.W.5, the Psychiatric Professor of S.C.B. Medical
College & Hospital, Cutttack. As per the evidence of P.W.5, a
copy of which is produced in course of hearing by Mr. Dutta, the
claimant was suffering from schizophrenic disorder in terms of
the Permanent Disability Certificate under Ext.12. The copy of
the Disability Certificate under Ext.12 indicates that the injured
suffered from mental illness due to chronic schizophrenia and
reassessment of his mental condition was recommended after 10
years. The medical examination of the claimant by the board was
done on 6.4.2015 as per evidence of P.W.4, Dr. Dharanidhar
Senapati, Medicine Specialist, DHH, Jagatsinghpur, who was a
member of the District Medical Board. As per evidence of P.W.5,
the Psychiatric Professor, he examined the injured on 27.6.2016.
Thus a combine reading of evidences of P.W.4, P.W.5 and the
Disability Certificate (Ext.12) reveals that on 6.4.2015 to
27.6.2016, the injured was suffering from mental illness due to
schizophrenia. As per the claimant, such mental illness was
developed by the injury sustained in the accident.
7. The copy of the extract of the driving license of the injured-
claimant as submitted by Mr. Dutta in course of hearing with his
prayer to adduce the same in additional evidence is taken on
record. Perusal of the same reveals that the driving license of the
injured-claimant, namely, Jawan Nath was renewed for transport
vehicles on 27.1.2017. Mr. Mohapatra, learned counsel for the
claimant does not dispute such renewal of driving license of the
claimant on 27.1.2017.
8. In terms of Rule 15 of the Motor Vehicle Rules, the physical
as well as mental fitness is sine qua non for renewal of driving
license. Therefore, the presumption lies that the injured-claimant
was physically as well as mentally fit on 27.1.2017 to drive a
transport vehicle. If this is compared with the evidence of P.W.4
and P.W.5, the inference arises that the injured remained mentally
ill for the period from 6.4.2015 to 26.1.2017. In other words, his
mental illness was removed with effect from 27.1.2017.
9. On being asked, Mr. Mohapatra, learned counsel for the
claimant could not able to counter such inference on the injured-
claimant regarding his fitness from 27.1.2017 onwards.
10. Therefore, the finding of the learned Tribunal to the effect
that the injured lost his income permanently due to mental
impairment is set aside. On this count, the loss of future earnings
due to permanent disability and addition of future prospects
thereon to the tune of Rs.12,31,200 + Rs.4,92,480/- =
Rs.17,23,680/- needs to be reduced substantially by confining
upto 27.1.2017 only. The date of accident is 9.2.2014 and thus the
loss of income has to be counted for three years only. The
aforesaid amount thus reduced to Rs.2,87,280/-. Accordingly, the
total compensation amount is reduced to Rs.3,63,280/- in terms of
the calculation of the learned Tribunal.
11. Next coming to the contention of the claimant for
enhancement of treatment expenses and the amount granted
towards pain and suffering, it is seen that the Tribunal has granted
Rs.20,000/- towards treatment expenses and Rs.25,000/- towards
pain and suffering.
12. Considering the nature of injury and his treatment period, the
treatment expenses is enhanced to Rs.50,000/-. But no reason is
seen to enhance the amount granted towards pain and suffering.
13. In the result, the compensation amount is modified to
Rs.3,93,280/-.
14. Both the appeals are disposed of with a direction to the
Insurance Company to deposit the modified compensation of
Rs.3,93,280/- before the learned Tribunal along with interest
@6% per annum from the date of filing of the claim application,
i.e. 9.7.2014 within a period of two months from today; where-
after the same shall be disbursed in favour of the claimant by
keeping 50% of the amount in fixed deposit in any nationalized
Bank for a period of five years.
15. On deposit of the award amount before the learned Tribunal
and filing of a receipt evidencing the deposit with a refund
application before this Court, the statutory deposit made before
this Court in MACA No.260 of 2019 with accrued interest
thereon shall be refunded to the Insurance Company.
16. The copies of the depositions filed in course of hearing
including the copies of extract of DL and the Disability
Certificate are kept on record.
17. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
