Orissa High Court
Sbi General Insurance Company vs Ananda Kumar Jaiswal & Another on 19 June, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.635 of 2016
SBI General Insurance Company .... Appellant
Limited, Bhubaneswar
Mr. G.P. Dutta, Advocate
-Versus-
Ananda Kumar Jaiswal & Another .... Respondents
Mr. Kalpataru Panigrahi, Advocate
MACA No.636 of 2016
SBI General Insurance Company .... Appellant
Limited, Bhubaneswar
Mr. G.P. Dutta, Advocate
-Versus-
Tarasius Kullu (Dead) through LRs & .... Respondents
Another
Mr. Kalpataru Panigrahi, Advocate
MACA No.698 of 2016
Tarasius Kullu (Dead) through LRs .... Appellant
Mr. Kalpataru Panigrahi, Advocate
-Versus-
Md. Gauhar & Another .... Respondents
Mr. G.P. Dutta, Advocate for respondent No.2
And
Ananda Kumar Jaiswal .... Appellant
Mr. Kalpataru Panigrahi, Advocate
-Versus-
Md. Gauhar & Another .... Respondents
Mr. G.P. Dutta, Advocate for respondent No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:19.06.2024
1. All the appeals since arising out of a common cause of action
stand disposed of by the following order.
2. MACA Nos.635 & 699 of 2016: Both the appeals are filed
against the impugned award dated 31st March, 2016 passed in
MAC Case No.136 of 2013 by learned 2nd Additional District
Judge-cum-5th M.A.C.T., Rourkela, whereby, an amount of
Rs.16,20,000/- has been awarded as compensation to the
injured claimant with respective reliefs.
3. MACA Nos. 636 & 698 of 2016: Whereas, the instant
appeals are filed against an award of Rs.5,62,700/- in favour of
the injured claimant (deceased) with an award dated 31st
March, 2016 arising out of MAC Case No.89 of 2013 seeking
enhancement of compensation opposed by the Insurance
Company.
4. The injured claimants filed the appeals for enhancement of
compensation, whereas, the Insurance Company primarily
questioned the quantum with a plea that the same are on the
higher side and without considering the materials on record. In
fact, the accident took place on 29th March, 2013 during the
morning hours at a time when the injured claimants were hit
by the offending vehicle, a Tipper bearing registration No. OR
14 V 9170. The said accident alleged to have taken place due to
rash and negligent driving of the offending vehicle by its driver,
as a result of which, both the claimants, sustained multiple
injuries and were treated as indoor patients. After the alleged
accident, the claimants filed the applications under Section 166
of the M.V. Act seeking compensation from the owner of the
offending vehicle and the Insurance Company. While dealing
with the claim applications, considering the pleadings on
record, learned Tribunal framed the following issues, such as,
(i) whether, the applications for compensation to be
maintainable? (ii)whether, on 29th March, 2013 at about 10.00
A.M., near the spot, both the claimants sustained injuries in a
road accident and if such accident took place due to rash and
negligent driving of the driver of the alleged Tipper bearing
registration No. OR-14-V-9170? and (iii) whether, the claimants
are entitled to compensation from the Insurance Company and
also the owner of the vehicle, if so, from whom and to what
extent?
5. To substantiate the claims, the injured adduced oral and
documentary evidence and on the other side, Insurance
Company led evidence in MAC Case No.136 of 2013 only. No
evidence was received from the owner of the offending
vehicle. Considering the entire evidence and on a satisfaction
reached at by learned Tribunal that the driver of the Tipper to
be rash and negligent and responsible for the accident allowed
compensation in favour of the injured claimants, one of whom
died subsequently (admittedly, not on account of the injuries
sustained in the accident). Being dissatisfied with the impugned
awards, the injured claimants as well as Insurance Company
filed the present appeals with appropriate reliefs.
6. Heard Mr. Panigrahi, learned counsel for the injured
claimants and Mr. Dutta, learned counsel for the Insurance
Company.
7. In MAC No. 699 of 2016, the quantum of compensation is
challenged by the claimant and also the Insurance Company
with a plea of the former that the same is grossly less and to be
arbitrary and on the higher side by the latter, hence, liable to
be reduced. Mr. Panigrahi, learned counsel for the claimant
submits that a sum of Rs.6,40,000/- on the head of medical
expenses is too less as because the expenditure borne towards it
is to the tune of Rs.18,61,622/- for having been treated as an
indoor patient at Ispat General Hospital, Rourkela; Apollo
Hospital, Bhubaneswar; and Udaybhanu Clinic & Nursing
Home, Cuttack proved through Exts.13, 14 Series, 15 Series and
16. So, therefore, the contention of Mr. Panigrahi is that the
amount on the head of medical expenses is to be accordingly
enhanced. It is further submitted by Mr. Panigrahi that the
injured, considering the grievous injuries sustained by him,
disability, age and treatment expenditure incurred, an amount
of Rs.20,000/- towards future medical expenses and Rs.4,000/-
on loss of amenities are again grossly low and
disproportionate. Furthermore, it is contended that the
claimant received multiple injuries on right leg, knee joint, right
toe and other parts of body with amputation of three fingers
of right leg, which was operated and replaced and other parts
of the body had also been operated thrice at Apollo Hospital,
Bhubaneswar and Udaybhanu Clinic & Nursing Home, Cuttack
and as a result of such injuries, he is declared with a disability
of 60% vide Ext.8 and in absence of any rebuttal evidence
from the side of the Insurance Company, though all the
medical records have been produced and received in evidence
with objection, learned Tribunal could not have ignored the
same. Mr. Panigrahi would also submit that the injured was
running a hotel business by name M/s. Black Berry Hotel at
Rajamunda in the outskirt of Rourkela town set up by availing
a loan but due to his permanent disability, the business was
closed and the State Bank of India, Lahunipara Branch took
symbolical possession of the land and building of the hotel by
initiating a proceeding for recovery of loan amount and the
said evidence has not been rebutted by the Insurance Company
either. That apart, as per Mr. Panigrahi, the functional disability
of the injured should have been held at 100% instead of 60%
and hence, the compensation is to be correspondingly
determined by adding future prospects, which is permissible
even in injury cases and while pleading so, a decision in the
case of Jagdish Vrs. Mohan and others 2018(2) T.A.C. 14 (S.C.)
is cited by him. That apart, it is contended by Mr. Panigrahi
that the learned Tribunal ought to have fixed the monthly
income of the injured at Rs.12,000/- instead of Rs.10,000/- and
hence, considering the same and other aspects, the
compensation deserves to be enhanced with a sum of
Rs.40,11,622/- with an additional payment of Rs.23,91,622/-.
On the point of functional disability at 100%, though,
permanent disability is declared at 69%, Mr. Panigrahi, in that
connection, placed reliance on a decision of the Apex Court in
the case of Jithendran Vrs. New India Assurance Co. Ltd. AIR
ONLINE 2021 SC 946.
8. In respect of the other injured in MAC Case No.89 of 2013,
Mr. Panigrahi submits that an amount of Rs.5,62,700/- as
compensation allowed in his favour also needs enhancement.
Mr. Panigrahi submits that the said injured also received
multiple injuries on head and other parts of the body and due
to such injuries, his right leg was operated and nailing was
done on right femur and as a result, it got shortened and for
the injuries, he received treatment at Ispat General Hospital,
Rourkela for nearly twenty days and had to spend Rs.5100/-.
Mr. Panigrahi also submits that the District Medical Board
assessed the physical disability of the claimant to be 40% as per
Ext. 5 which indicated that the nature of injuries restricted the
movement of his hip and shortening of right leg and
considering the extent of the injuries and its impact, the
functional disability should have been held as 100%. It is
contended by Mr. Panigrahi that the learned Tribunal also
committed error by not adding future prospects at 25%
referring to the decision in Jithendran (supra). While
concluding the argument, Mr. Panigrahi would submit that in
view of the Salary Certificate (Ext.9) and Ext.5, learned
Tribunal while considering the job of the injured as a driver in
M/s. B.P. Mohanty Transport, Tensa prior to the accident
would have awarded compensation taking into account the
functional disability higher than 40% and adding the future
prospects of 25% besides the medical expenditure incurred and
other miscellaneous expenses with a multiplier of 14 for the
purpose of determination of the compensation.
9. In MACA No.635 of 2016, the quantum of compensation is
questioned by the Insurance Company and according to Mr.
Dutta, learned Tribunal committed error in holding the
injured's disability to the extent of 60% when Ext.8 was
admitted into evidence with objection and also for the fact that
the whole-body functional disability was not taken into
account, which law mandates in view of the Apex Court's
decision in (2011) 48 OCR (SC) 214. It is submitted by Mr.
Dutta that the further wrong committed by the learned
Tribunal is with regard to monthly income of the injured fixed
at Rs.10,000/- and that, after the alleged occurrence, the hotel
business was not closed in absence of any evidence to the
contrary and in that connection, referred to a decision of the
Apex Court in the case of New India Assurance Company
Limited Vrs. Yogesh Devi and others AIR 2012 SC 945. It is
also submitted that the injured could not have been allowed a
sum of Rs.6,40,000/- on the head of medical expenses when
the bills were not properly proved and as such, no case of
enhancement is made out as the plea is to the effect that the
injured spent Rs.18,61,622/- towards such expense. Referring to
Ext.14 series, Mr. Dutta alleges that the medicine bills include
the interim payments made by the injured for a total amount
of Rs.3,90,000/-, inasmuch as, the deposits (with the voucher
details/numbers indicated) find mention in all the bills and
hence, repeated at the time of calculation.
10. With respect to the injured in MACA No.636 of 2016, Mr.
Dutta submits that the learned Tribunal did consider the
disability at 40% on the basis of Ext.5, even when it was not
proved by any doctor and also failed to assess the functional
disability. According to Mr. Dutta, the monthly income of the
injured at Rs.8000/- on the basis of Ext.9 is also not properly
proved, since it was received as evidence with objection and
furthermore, when the same does not reveal registration
particulars of the Transport Company where he claimed to
have had worked. Lastly, it is contended by Mr. Dutta that
since the injured died during the pendency of the appeal, his
legal heirs are not entitled to any sum towards loss of pain and
suffering, future medical treatment and loss of amenities in
view of the decisions of the Apex Court reported in AIR 1986
SC 411 and also AIR 2007 MP-38 besides AIR 2009 Madras
2022. In response to the above contention that there shall be
no compensation on the heads of loss of pain and suffering
etc., Mr. Panigrahi, learned counsel for the injured relies on the
decision of the Apex Court in the case of the Oriental Insurance
Company Limited Vrs. Kahlon @ Jasmail Singh Kahlon and
Another 2021 (4) T.A.C. 1 (SC) to contend that the legal heirs
of the injured are entitled to compensation excluding amounts
on the heads of pain and suffering etc., which relate to
personal injury.
11. Considering the rival contentions vis-à-vis the compensation
allowed in favour of the injured claimants, the Court is to
examine it with reference to the evidence on record and in the
light of settled position of law. The accident is dated 29th
March, 2013 and the involved vehicle is a Tipper. There is no
dispute with regard to the alleged accident as the same has not
been denied by the Insurance Company. The learned Tribunal
considering the evidence received held that the accident is
proved and also reached at a conclusion regarding the rash and
negligence on the part of the driver of the Tipper with injuries
being received by both the claimants. The offending Tipper
was found to have a valid insurance policy as on the date of
accident. Such fact is also not in dispute. According to the
evidence on record, policy was valid from 7th December, 2012
to 6th December, 2013 as a Goods Carriage Transport Vehicle
on the terms and conditions contained therein. The challenge is
principally directed against the quantum of compensation
which is claimed to be less by the injured claimants and on the
higher side by the Insurance Company. The settled position of
law is that an injured or the LRs of the deceased to be
indemnified for the loss on account of the vehicular accident
with just compensation, which is 'no more, no less'. A Claims
Tribunal is, hence, required to consider and appreciate the
evidence on the nature of injuries, extent of damage caused to
the injured or the family of the deceased for the loss sustained
as a result, with all other aspects, though, it is difficult to
measure the actual loss or suffering while determining
compensation. In the instant case, that the injured sustained
multiple injuries and were treated separately and declared
physical disabled to the extent by the Medical Board and
having been allowed compensation, whether the same to be
just compensation or otherwise shall have to be examined by
this Court. The injured claimant in MACA No.699 of 2016 was
allowed a compensation of Rs.16,20,000/-, which is sought to
be enhanced to Rs.40,11,622/-, whereas, the other injured
(deceased) in MACA No.698 of 2018 was awarded
compensation Rs.5,62,700/- and the same are to be payable to
them by the Insurance Company along with interest.
12.(i) In MACA No.699 of 2016, a sum of Rs.6,40,000/- on the
head of medical expenses is allowed in favour of the injured
claimant. In support of treatment for the injuries, the claimant
proved Exts.13, 14 series, 15 series and 16 seeking enhancement
to Rs.18,61,622/-. The said claim of the injured is disputed by
Mr. Dutta, learned counsel for the Insurance Company stating
that the medicine bills include the payments made from time to
time and hence, the calculation has been repeated and learned
Tribunal, thus, committed no wrong in allowing an amount of
Rs.6,40,000/- only on the said head. In fact, the certified copies
of the bills marked as Exts.13, 14 series, 15 series and 16 are
referred to, while claiming enhancement on the medical
expenses. On inspection of the same, the Court equally finds
that certain interim deposits have been made and again
included in each of the bills, which cannot be allowed, as such
calculation would result in repetition. Having found so, the
Court is in agreement with the contention of Mr. Dutta,
learned counsel for the Insurance Company that there is
reiteration of some interim deposits made all through during
the time of treatment of the injured claimant. On a fresh
calculation made, taking into account the bills, the Court
further finds that the calculation reached at by learned Tribunal
on the head of medical expenses is rather reasonably assessed
at Rs.6,40,000/- and hence, no case for any enhancement on
such ground is made out. In other words, the plea of Mr.
Panigrahi, learned counsel for the injured claimant does not
find favour with respect to enhancement on the head of
medical expenses borne by the injured, though accepting the
evidence that he was under treatment in Apollo Hospital,
Bhubaneswar and at a clinic thereafter.
(ii) In so far as the contention vis-a-vis the extent of disability, it
is supported by Ext.8 declaring him to be disabled at 60% with
a claim that it should be treated as 100%, Mr. Panigrahi,
learned counsel for the injured claimant supports it but is
opposed by Mr. Dutta, learned counsel for the Insurance
Company contending that the entire body disability is to be
examined. Learned Tribunal has accepted the functional
disability of the injured at 60%, as earlier mentioned. Mr.
Panigrahi refers to the decision in the case of Jithendran (supra)
while claiming that disability should be 100% instead of 60%
in case of the injured claimant. In the said decision, the injured
suffered severe impairment of cognitive power with
Hemiparesis and total Aphasia and Prognosis with 68%
permanent disability, which was treated as 100% functional
disability in so far as the loss of earning capacity is concerned. It
is well known that the extent of functional disability is to be
determined by a Claims Tribunal without blindly accepting the
permanent disability declared by the Medical Board. While
dealing with a case of injury, the Apex Court, in the aforesaid
decision, discussed the yardstick to be adopted to decide as to
in what manner, the functional disability is to be assessed and
while referring to one of its earlier decisions in Pappu Deo
Yadav Vrs. Naresh Kumar and others AIR 2020 SC 4424 held
that proportionate loss of earning capacity on account of any
such permanent disability may have to be quantified as 100%.
In the said case, as previously stated, the injured was found
69% physically disabled and while considering it and the
nature of such disability affecting cognitive power of the
injured, declared the functional disability to be 100%. In the
case at hand, the injured claimant received multiple injuries and
declared to be 60% locomotor disability as per Ext.8. The
learned Tribunal accepted functional disability at 60% instead
of 100%, which in the considered view of the Court, is not
grossly erroneous. Of course, the claimant received treatment
at Apollo Hospital, Bhubaneswar and had surgical intervention
on couple of times with knee replacement and amputation of
three of the fingers of right leg but for such injuries and
disability declared, it cannot be treated as 100%. Considering
the nature of the vocation of the claimant as he had a hotel
business, for the kind of disability on account of the injuries
sustained, the functional disability, hence, is not unreasonable
at 60%. It is not that the injured claimant is fully disabled and
lost earning capacity completely. As he continued to generate
income so revealed from Ext.19, had it been a case of
amputation of hands or legs or impairment of cognitive faculty
of the injured with such permanent disability of 60%, the
Court would have allowed functional disability at 100%, which
is, however, not the case of the claimant considering the
evidence on record and therefore, the decision in Jithendran
(supra) is distinguishable on facts.
(iii) In so far as the salary of the injured is concerned, it is fixed
at Rs.10,000/- which according to Mr. Panigrahi should have
been Rs.12,000/- with 25% added on future prospects. In
Jagdish (supra), the Apex Court, considering the disability at
90%, allowed 40% towards future prospects in view of the
decision in National Insurance Company Limited Vrs. Pranay
Sethi (2017) 13 SCALE 124, referring to which, Mr. Panigrahi
claims for at least 25% on the said head. As regards, the salary
of the claimant injured, on perusal of Ext.19, it is made to
understand that he had monthly income during the years 2013-
15 hovering around Rs.10,000/- to Rs.15,000/-. The injured
was running a hotel business and monthly income would
normally fluctuate depending on season and footfalls. Taking
into account Ext.19, such as, the statements of account of the
claimant injured, it would be quite reasonable to fix the
monthly income at Rs.10,000/- but in view of the extent of
disability suffered by him, 25% should be added on future
prospects and hence, it becomes Rs.12,500/-. Then, the yearly
income is reached at Rs.1,50,000/-. Since the Court is not
inclined to allow 100% loss towards earning capacity which is
also negatived considering Ext.19, the same is, thus, assessed at
60%. Hence, the loss earning capacity becomes Rs.90,000/-
and applying multiplier of 13, it would be Rs.11,70,000/-. The
additional medical expenses since retained at Rs.6,40,000/-,
the amount is arrived at Rs.18,10,000/-. The Court is, however,
inclined to allow Rs.20,000/- each on the heads of pain and
suffering and loss of amenities, Rs.50,000/- towards future
medical expenses, hence, with the above additions, the
compensation stands determined at Rs.19,00,000/- as against
the awarded sum of Rs.16,20,000/-.
13.(i) In MACA No.698 of 2016, with respect to the injured
(deceased), as earlier stated, the compensation has been
determined at Rs.5,62,700/-. Both the claimants and also the
Insurance Company allege the compensation amount to be
arbitrarily assessed. Like the other injured, the claimant had
received multiple injuries and he was under treatment and
physical disability was assessed at 40% and herein also, the
demand is for 100% functional disability. The petitioner
suffered injuries and there is restriction of movement of hip
and shortening of right leg as per Ext.5, even in absence of any
specific evidence to show that it has materially affected his
employment as a driver, the functional disability may have to
be fixed at higher than 40% adding loss of future prospects at
25%. Due to the nature of vocation of the injured claimant,
the Court is inclined to take such a view to hold him more than
40% functionally disabled. However, the functional disability
cannot be assumed to be 100% without clear evidence on
record. Such disability in the considered view of the Court
should be 50% instead with loss of future prospects at 25%.
(ii) The income of the injured is accepted at Rs.8,000/- a
month. In fact, the salary certificate i.e. Ext.9 reveals that prior
to the incident, the injured was working as a driver with a
monthly earning of Rs.8,000/-. So, therefore, the Court is to fix
the monthly income at Rs.8,000/- as held by the learned
Tribunal and with a 50% disability, it becomes Rs.4,000/- and
as such, the annual loss of earning becomes Rs.48,000/-.
Applying the multiplier of 14 as per the decision of the Apex
Court in Smt. Sarla Verma and others Vrs. Delhi Transport
Corporation and Another (2009) 2 TAC 677, the total loss of
earning stands at Rs.6,72,000/- and adding an amount of
Rs.5,100/- towards medical expenses, the final amount of
compensation is reached at Rs.6,77,100/-.
(iii) As regards, the contention of Mr. Dutta, learned counsel
for the Insurance Company that since the claimant injured has
died during the pendency of the appeal, his legal heirs are not
entitled to any sum towards pain and suffering, future medical
treatment and loss of amenities. The decision of the Apex
Court in the case of Melepurath Sankunni Ezhuthassan Vrs.
Thekittil Gopalankutty Nair 1986 ACJ 440 is referred to by a
Full Bench of M.P. High Court in Smt. Bhagwati Bai and
Another Vrs. Bablu and others AIR 2007 MP 38 which is relied
on by Mr. Dutta. In the above decision of the Apex Court, the
legal representatives of a deceased, who suffered personal
injury in a motor accident but died subsequently for some
other reason, were held not eligible to pursue the claim
application under Section 166 of the Motor Vehicles Act.
Considering the said decision, the MP High Court in Smt.
Bhagwati Bai (supra) also held that a claim for personal injury
filed under Section 166 of the MV Act would abate on the
death of the claimant and not to survive to his legal
representatives except as regards, the claim for pecuniary loss
to the estate of the claimant, while answering a reference of a
Division Bench of the said Court.
On the other hand, Mr. Panigrahi, learned counsel
for the injured referring to the decision in Kahlon @ Jasmail
Singh Kahlon (supra) contended that the claims proceeding
does not abate, however, the legal heirs are not entitled to
Rs.20,000/- in the whole which is to be accordingly deducted.
In the aforesaid decision, the Apex Court held and observed
that loss of estate would include expenditure on medicine,
treatment, diet, attendant, doctor's fee etc. including income
and future prospects which would have caused reasonable
accretion to the estate but for the sudden expenditure which
had to be met from and depleted estate of the injured
subsequently deceased, however, the compensation under the
head of pain and suffering being personal injuries is to be
disallowed. In Umedchand Golcha Vrs. Dayaram 2002 (1) MP
LJ 249, which is referred to by the Apex Court in the decision
(supra), it has been concluded that a broad liberal
interpretation to the provisions of the MV Act is needed so that
legal representatives do not suffer injustice, though the claim
for personal injuries do not survive on the death of the injured
unrelated to the accident but could pursue the claim for
enhancement on account of loss of estate, which should include
expenditure on medical expenses, travelling, attendant, diet,
etc. and reasonable monthly annual accretion to the estate for
a certain period and it is trite that the income which a person
derives compositely forms part of the expenditure on himself,
his family and the savings go to the estate and the unforeseen
expenses naturally have to be met from the estate causing
pecuniary loss to such estate. In Surpal Singh Ladhubha Gohil
Vrs. Raliyatbahen Mohanbhai Savlia 2009 (2) GLH 217, it is
observed that the MV Act is a social welfare legislation
providing for compensation and such grant of compensation
has to be expeditious and the courts in construing the same are
to adopt beneficial rule of construction and while rejecting the
maxim 'actio personalis moritur cum persona' on the premise
that it was an injury done to the person and the claim abated,
it is further held therein that the right to sue survives and does
not abate. Mr. Dutta, learned counsel for the Insurance
Company submits that the legal heirs of the injured (deceased)
are not entitled to any amount towards loss of pain and
suffering, medical treatment and loss of amenity. The Court
considering the fact that learned Tribunal allowed a sum of
Rs.20,000/- on such head, the same is only to be deducted
from the compensation and finally determines the amount and
fix it at Rs.6,77,100/- which appears to be just and reasonable.
14. Hence, it is ordered.
15. In the result, the appeals stand allowed in part. As a
necessary corollary, the impugned awards dated 31st March,
2016 in MAC Case Nos.89 and 136 of 2013 passed by learned
2nd Additional District Judge-cum-5th Motor Accident Claims
Tribunal, Rourkela are hereby modified to the extent as
aforesaid with a direction to the Insurance Company to deposit
sum of Rs.6,77,100/- and Rs.19,00,000/- respectively with
interest @ 6% per annum from the dates of claim applications
filed payable to the injured claimant and LRs of the other
deceased injured within eight weeks from today. It is directed
that in the event such deposits are made, learned Tribunal shall
ensure its disbursement in favour of the parties entitled thereto.
Lastly, it is directed that soon after the compensation sum in
both the cases is deposited, the statutory deposits in respect of
the appeals shall be refunded to the Insurance Company
forthwith.
16. In the circumstances, however, there is no order as to costs.
(R.K. Pattanaik)
Judge
Balaram/Tudu
