Orissa High Court
Rabindranath Tripathy vs Kanta Devi Beriwal And Another on 10 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.456 of 2021
Rabindranath Tripathy .... Appellant
Mr. P.K. Mishra, Advocate
-versus-
Kanta Devi Beriwal and Another .... Respondents
Ms. Nibedita Mohanty, counsel for Respondent No.2
CORAM:
SHRI JUSTICE B. P. ROUTRAY
ORDER
10.1.2023
Order No.
03. 1. The matter is taken up through hybrid mode.
2. Heard Mr. P.K. Mishra, learned counsel for the injured -
claimant and Ms. N. Mohanty, learned counsel for insurer -
Respondent No.2.
3. Present appeal by the injured - claimant is against impugned
judgment dated 3rd September, 2021 of learned 4th MACT, Cuttack
passed in MAC Case No.50 of 2012, wherein compensation to the
tune of Rs.7,55,201/- along with interest @ 6% per annum from the
date of filing of the claim application, i.e. 6th February, 2012 has been
granted on account of injuries sustained by the claimant in the motor
vehicular accident dated 28th October, 2011.
4. Mr. Mishra, learned counsel for the injured submits that the
tribunal has not granted any compensation towards loss of income and
future attendant cost. It is further submitted by Mr. Mishra that, his
permanent disability continued after 2020 and in support of the same
he files a recent disability certificate dated 21st July 2022 issued in
respect of the injured - claimant.
5. Mrs. Mohanty, learned counsel for the insurer opposes the
prayer for enhancement of the compensation amount. She submits that
the Appellant has admitted in his evidence about no loss of income
due to any such disability and in the meantime he has also been retired
from his service as Survey Manager in MCL, without affecting his
income in anyway.
6. Perusal of copy of disability certificate under Ext.10, as
produced by Mr. Mishra reveals that the injured sustained post
traumatic deformity of right foot with weakness of the limb and the
extent of disability was 48%. Accordingly, the injured examined
himself before the Medical Board, as per his submission, and was
issued with fresh disability certificate on 21st July, 2022 upon
reassessment of disability after 2020. A copy of the same is produced
by Mr. Mishra in course of hearing, which shows that the extent of
disability has reduced to 45%, permanent in nature.
7. Perusal of the impugned judgment reveals that though the
tribunal has granted compensation on different heads like medical
treatment, cost for future medical treatment, conveyance and special
diet, pain and suffering with loss of amenities, and the attendant
charges for treatment period, but did not grant any amount towards
loss of income and future attendant charge. The injured does not
dispute his retirement from MCL without any loss of income on
attaining the age of superannuation, i.e. 60 years. Though in the
evidence he has stated that he lost his salary for a period of two years
due to sustenance of injuries but he did not choose to file any
document with regard to the same. The injured was working as Senior
Survey Manager in MCL and had he been actually lost any income
due to the injuries, he would not have left without any document to
that effect, particularly when the facts are clear to the extent that he
reimbursed the medical expenses up to Rs.2,89,001/-. So in absence of
any document produced with regard to loss of salary by the injured,
his statement made in the evidence regarding the same is found
unworthy of credit.
8. Mr. Mishra further contends that after his retirement from
service in MCL, he was unfit for any future employment due to the
disability sustained by him as per the disability certificate. Therefore,
the loss of income should be counted taking notional income of the
injured after 60 years. This submission is not found appealing to the
reasons. It is for the reason that when the injured has retired upon
attaining the age of superannuation at 60 years, his future employment
becomes uncertain. The injured does not say about any specific
employment or source of income, which he lost due to sustenance of
disability. Moreover, the nature of disability as mentioned in Ext.10 as
well as in the recent certificate is post traumatic right foot deformity.
When the materials are silent to speak any particular nature of future
employment after superannuation and the nature of disability is such
to affect right foot deformity only, the contention advanced by the
injured regarding loss of income is not found acceptable and thus
rejected.
9. Regarding non-grant of future attendant charge, no merit is seen
in the same keeping in view the nature of permanent disability. It is
not that the tribunal has not granted any attendant cost during the
period of treatment which would have actually incurred. The claim is
only with regard to future attendant cost and the same, keeping in
view the nature of disability, is not found essential as it would not
debar the claimant - injured from discharging his day today business
of life.
10. On consideration of the further submission of Mr. Mishra with
regard to grant of more amount towards pain and suffering and loss of
amenities, it is seen that an amount of Rs.2,00,000/- has been granted
by the tribunal for the same. The injured was hospitalized for a period
of 86 days with fracture of leg. Operation and nailing was done in the
hospital. Thus, considering the pain and suffering, the amount is
enhanced to a further consolidated sum of Rs.50,000/- on the said
count. No further reason is seen to interfere with the compensation
amount and admittedly no challenge has been advanced with regard to
the aspect of negligence and liability.
11. In the result the appeal is disposed of with a direction to the
insurer - Respondent No.2 to pay a further consolidated sum of
Rs.50,000/- (fifty thousand) to the injured - claimant by depositing
the same before the tribunal within a period of two months from
today, where-after the same shall be disbursed in favour of the injured
- claimant.
12. The copies of deposition of P.W.1 and other documents, as
produced by Mr. Mishra in course of hearing are kept on record.
13. An urgent certified copy of this order be issued as per rules.
( B.P. Routray)
Judge
M.K.Panda
