Susanta Sethi (In Maca ... vs Bhagirathi Pradhan & Another (In ...
2023 Latest Caselaw 4308 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      MACA No.255 of 2020
                 MACA No.255 of 2020 & 431 of 2019
                 Susanta Sethi                          (In MACA No.255/2020)
                 M/s. National Insurance Co. Ltd.,
                 represented through its Divisional
                 Manager, Bhubaneswar                   (In MACA No.431/2019)
                                                            ....       Appellants
                            Mr. P.K. Mishra, Advocate (in MACA No.255/2020)
                              Mr. B.P. Das, Advocate (in MACA No.431/2019)
                                             -versus-
                 Bhagirathi Pradhan & Another           (In MACA No.255/2020)
                 Susanta Sethi and Another              (In MACA No.431/2019)
                                                             ....    Respondents
                                      Mr. B.P. Das, counsel for Respondent No.2
                                                       (in MACA No.255/2020)
                                   Mr. P.K. Mishra, counsel for Respondent No.1
                                                       (in MACA No.431/2019)
                            CORAM:
                            SHRI JUSTICE B. P. ROUTRAY
                                          ORDER

25.4.2023 Order No.

09. 1. The matters are taken up through hybrid mode.

2. Heard Mr. P.K. Mishra, learned counsel for the claimant and Mr. B.P. Das, learned counsel for the insurer.

3. Both the appeals being arise out of same judgment, are heard together and disposed of by this common order.

4. Both the appeals are against same impugned judgment dated 18th March, 2019 of learned 6th MACT, Khurda passed in MAC Case No.144 of 2011, wherein compensation to the tune of Rs.1,47,722/- along with interest @ 7% per annum from the date of filing of the claim application, i.e. 31st October, 2011 has been granted on account of injuries sustained by the claimant in the motor vehicular accident dated 30th August, 2011.

5. In MACA No.255 of 2020, the claimant has prayed for enhancement of the compensation amount. MACA No.431 of 2019 has been filed by the insurer challenging the award.

6. Mr. Das submits for the insurer that according to the FIR and deposition of the injured witness (P.W.1), the accident took place on 1st September, 2011 at 8 am. But the injury report shows sustenance of injuries by the injured on 30th August, 2011. Therefore, the sustenance of injuries by the claimant in the alleged accident is doubtful.

7. On the other hand Mr. Mishra, learned counsel for the claimant submits in his reply that the accident took place on 30th August 2011 as per the claim averments. But the date of accident has been wrongly mentioned as 1st September, 2011 in the F.I.R. lodged by the father of the claimant.

8. On the backdrop of such rival contentions made at the Bar, further perusal of the copy of police investigation report reveals that the accident took place on 1st September 2011 and charge-sheet was submitted accordingly. The injured - claimant has not only stated so in his evidence affidavit but also confirmed in his cross-examination

that the accident took place on 1st September, 2011. It is not that the injured is an abnormal or incoherent person. So it is hard to believe that a wrong date of accident has been mentioned inadvertently by him before the court. The perusal of injury report reveals that the injured directly came to the hospital at 10 am on 30th August, 2011 with such injuries on his person. The injury report does not suggest sustenance of such injuries due to road traffic accident. The injury report is silent on the same. The F.I.R. was lodged on 9th September, 2011 by the father of the claimant. Therefore, keeping in view all such circumstances, the explanation given on behalf of the injured that the date of accident has been wrongly mentioned as 1st September, 2011 instead of 30th August, 2011 is not found convincing. On the totality of facts as brought on record, sustenance of injury by the claimant in the alleged motor vehicular accident is found doubtful. But the tribunal without discussing all such facts has concluded that the claimant was injured in the accident dated 30th August, 2011. Such finding of the tribunal is therefore set aside particularly keeping in view the date of accident stated by the injured in his cross- examination. It is held that the injuries sustained by the claimant in the alleged accident are doubtful. Thus, he is not entitled for any compensation.

9. In view of the discussions made above the appeal is allowed and impugned award is set aside.

10. The copies of depositions and exhibits as produced by Mr. Das are kept on record.

11. The statutory deposit made by the insurer in MACA No.431 of 2019 before this court along with accrued interest be refunded on proper application.

12. An urgent certified copy of this order be issued as per rules.

( B.P. Routray) Judge M.K.Panda