Orissa High Court
The Manager vs Ajit Kumar Malabisoi And Another on 7 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.413 of 2019 & MACA No.580 of 2019
In MACA No.413 of 2019
The Manager, IFFCO-TOKIO General .... Appellant
Insurance Co. Limited
Mr. A.A. Khan, Advocate
-versus-
Ajit Kumar Malabisoi and another .... Respondents
Mr. B.N. Rath, Advocate for Respondent No.1
Mr. M. Das, Advocate for Respondent No.2
In MACA No.580 of 2019
Ajita Kumar Malabisoi .... Appellant
Mr. B.N. Rath, Advocate
-versus-
Ranjana Nayak and another .... Respondents
Mr. A.A. Khan, Advocate for Respondent No.2
Mr. M. Das, Advocate for Respondent No.1
CORAM:
JUSTICE B. P. ROUTRAY
ORDER
07.02.2023
Order No.
MACA No.413 of 2019 & MACA No.480 of 2019
12. 1. Heard Mr. A.A. Khan, learned counsel for the insurance
company, Mr. B.N. Rath, learned counsel for the claimant and
Mr. M. Das, learned counsel for the owner.
2. Both the appeals being arise out of the same judgment dated
05.02.2019 of learned 5th MACT, Berhampur in M.A.C. Case
No.313 of 2013, wherein compensation to the tune of
Rs.4,79,000/- has been granted along with interest @7% per
annum to the claimant from the date of filing of the claim
application, i.e.12.11.2013 on account of injury sustained by him
in a motor vehicular accident dated 25.03.2013, are heard
together and disposed of by this common order.
3. MACA No.413 of 2019 has been filed by the insurer
challenging the award. Mr. Khan, learned counsel contends for
the insurer that involvement of the offending vehicle in the
accident and sustenance of injury by the claimant is doubtful
since FIR was lodged after three months of the accident. He
further contends that learned Tribunal has assessed the amount on
higher side on the count of treatment expenses.
4. MACA No.580 of 2019 has been filed by the injured-
claimant praying for enhancement of the compensation amount
on the ground that learned Tribunal has erroneously assessed
functional disability at 40% instead of 100% and secondly, no
amount has been added towards future prospects.
5. Perusal of impugned judgment reveals that the accident took
place on 25.03.2013 and the FIR was lodged on 2.6.2013. The
Police upon completion of investigation submitted the charge-
sheet against the accused driver for commission of offences under
Sections 279/337/338, I.P.C. The injured-claimant examined
himself as P.W.1 to substantiate his case regarding sustenance of
injury in the accident. No evidence has been adduced from the
side of the insurance company. So, when the oral evidence
adduced by the injured-claimant is supported with the findings in
Police investigation report and no rebuttal evidence has been
adduced by the insurer to controvert such evidences produced
from the side of the claimants, it can safely be concluded that the
claimant has established his case regarding sustenance of injury
by him in the accident. No point remains with the insurance
company to raise any doubt on the contention of the claimant for
mere delay in lodging the FIR.
6. With regard to the quantum of compensation, it is seen that
the learned Tribunal, in absence of any material produced with
regard to income of the injured, assessed his income at daily wage
rate prevalent on the date of accident. According to the claimant,
he was serving as Gramin Dak Sevak. But no material in support
of the same except the oral statement was produced by him.
Therefore, the learned Tribunal has rightly concluded in assessing
the income of the injured as a daily wager in the prevalent wage
rate. No flaw is seen in such approach of the learned Tribunal
which is accordingly confirmed.
7. Mr. Khan contends that the treatment expenses of the injured
have been assessed on higher side in absence of any documentary
proof to that effect. It is seen that as per the injury report, he
sustained fracture injuries in his right leg. He has produced
number of outdoor tickets regarding his examination in the
hospital and it is his case that he underwent treatment as indoor
patient for the period from 25.3.2013 to 4.5.2013, 2.6.2013 to
13.6.2013 and 25.6.2013 to 29.6.2013. In support of the same, the
injured has produced the discharge certificates. Therefore, the
amount of compensation as granted by learned Tribunal to the
tune of Rs.1,50,000/- towards treatment expenses cannot be said
on higher side. The contention of the insurer in this regard is thus
rejected.
8. As per the injured-claimant, the permanent physical disability
to the extent of 50% as mentioned in the Disability Certificate
under Ext.7 should be counted towards functional disability to the
extent of 100%. No justifiable ground is seen in this regard. As
per the principles decided in the case of Raj Kumar vs. Ajay
Kumar and another, (2011) 1 SCC 343, the functional disability
has to be counted keeping in view the nature of injuries and
nature of profession of the injured. Here in the case at hand,
though the Tribunal has assessed the income on the basis of daily
wage rate, but it is the claim of the injured that he was serving as
Gramin Dak Sevak. Of course no material has been produced in
support of his income and therefore, keeping in view the nature of
physical disability, the functional disability has been assessed by
the Tribunal at 40% taking him as a daily wager. It is important to
state here that as per the Disability Certificate, there is stiffness in
the ankle and delayed union deformity. Therefore, the assessment
of functional disability to the extent of 40%, as counted by the
Tribunal, is found justified. No merit is seen in the contention of
the claimant to enhance it to 100%.
9. However, it is seen that learned Tribunal has not added any
future prospects while counting future loss of income. By adding
the same, the claimant is found entitled to a further sum of
Rs.63,000/-. Accordingly, the compensation amount is enhanced
to Rs.5,42,000/-, payable along with interest @6% per annum.
10. There being no dispute raised with regard to validity of the
policy, the finding of learned Tribunal with regard to the liability
is confirmed.
11. In the result, both the appeals are disposed of with a direction
to the insurance company, i.e. IFFCO-TOKIO General Insurance
Company Limited to deposit the entire compensation amount of
Rs.5,42,000/- (rupees five lakhs forty-two thousand) along with
interest @6% per annum from the date of filing of the claim
application, i.e. 12.11.2013 before learned Tribunal within a
period of two months from today; where-after the same shall be
disbursed in favour of the claimant, namely, Ajita Kumar
Malabisoi on such terms and proportions to be fixed by the
learned Tribunal.
12. On deposit of the award amount by the insurance company
before the Tribunal and filing of a receipt evidencing the deposit
with refund application before this Court, the statutory deposit
made in MACA No.413 of 2019 before this Court with accrued
interest thereon shall be refunded to the insurer.
13. An urgent certified copy of this order be granted on proper
application.
( B.P. Routray)
Judge
B.K. Barik
