[Cites 2, Cited by 0]

Orissa High Court

National Insurance Co. Ltd vs Bighnaraj Panda And Another on 27 February, 2026

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   MACA No.1200 of 2024

   (In the matter of application under Section 173(1) of
   the Motor Vehicles Act, 1988).

   National Insurance Co. Ltd., ...             Appellants
   Kolkata and another
                       -versus-

   Bighnaraj Panda and another ...           Respondents

   For Appellants         : Mr. S. Satpathy, Advocate

   For Respondents        : Mr. R.C. Panigrahy,
                            Advocate (for R-1)

       CORAM:
                   JUSTICE G. SATAPATHY

              DATE OF HEARING : 24.02.2026
              DATE OF JUDGMENT: 27.02.2026
G. Satapathy, J.

1. The appellants-representing the Insurance

Company (in short, the "Insurer") are in an appeal

U/S.173 of the Motor Vehicles Act, 1988 (in short, "the

Act") to challenge the quantum of compensation as

awarded to the Respondent No.1(R1)-cum-claimant by

the impugned judgment dated 28.03.2024 passed by

the learned 3rd MACT, Bhubaneswar (in short, the

"learned Tribunal") in MAC Case No.204 of 2016

directing the appellant No.2, who was OP No.2 in the

original MAC Case to pay a sum of Rs.23,14,392/-

together with simple interest @ 6% per annum w.e.f

the date of filing of claim application till actual

realization of the amount to the claimant-petitioner in

the aforesaid MAC case.

2. Bereft of unnecessary details, the accident

which gives to the present appeal took place on

22.06.2015 when R-1 namely Bighnaraj Panda, an

advocate by profession (hereinafter referred to as "the

claimant") was coming from Cuttack on NH-5 by riding

his Motor Cycle, he was dashed from behind by a

Truck bearing Regd. No. OR-21-8813 (hereinafter

referred to as "the offending vehicle") near Bank of

India, Rasulgarh Branch, Bhubaneswar as a result the

claimant sustained serious injuries and treated at

different Hospitals in Bhubaneswar; such as Nilachala,

KIMS & SUM Hospitals. According to the claimant, the

accident was outcome of the rash and negligent

driving of the driver of offending vehicle and

accordingly, Mancheswar PS Case No.230 of 2015 was

registered which resulted in submission of charge-

sheet. In the aforesaid background, when the claimant

approached the learned Tribunal in application

U/S.166 of the Act for compensation by impleading the

owner and insurer of the offending vehicle, he was

awarded with compensation indicated supra by the

impugned judgment under different heads enlisted

therein, but the insurer being aggrieved by the

quantum of compensation has preferred this appeal.

3. Heard, Mr. Subrat Satpathy, learned

counsel for appellants and Mr. Ramachandra

Panigrahy, learned counsel for the R-1 in the appeal

and perused the record. None appears for R-2 despite

valid service of notice.

4. Rival submissions together with the

written notes as filed for the appellants makes it

apparently clear that the quantum of compensation is

questioned on following points, which needs to be

answered: -

(i) Award is computed @ 28% permanent disability, but claimant's temporary disability was 28% for a period of five years;

(ii) Neither future prospects nor multiplier method is applicable in this case;

(iii) Medical expenditure of Rs.5,10,613/- is hypothetically awarded without any evidence;

(iv) Imaginary amount has been awarded under the respective headings at SL. Nos.9 & 10 of the table of compensation as appended to the impugned judgment and lastly,

(v) Imposition of penal interest @ 8% per annum is not admissible.

5. Award/determination of just compensation

in a case under the Act for injuries or death of a person

arising out of use of motor vehicles is a complex and

complicated issue, which is required to be considered on

hypothetical consideration basing on evidence, mainly

with regard to age, avocation/profession & income, more

particularly the future income of the deceased/injured,

but such computation of compensation for the

claimant(s) has been simplified in recent past by the law

laid down by the Apex Court in a plethora of decisions.

Looking at the grounds of challenge as advanced in this

Appeal, since the claimant claims for compensation for

injuries and disability, the rulings of Apex Court in Raj

Kumar Vrs. Ajay Kumar and another; (2011) 1

SCC 343 are found relevant in this case. It is no more

unknown principle as laid down in Ajay Kumar (supra)

that in a routine personal injury case, the compensation

is required to awarded only under the heads of (i)

expenses relating to treatment, hospitalization,

medicines, transportation, special diet and miscellaneous

expenditures and (ii) loss of earnings for the

injury/injuries sustained by the injured claimant, but in a

case of permanent disability, which includes partial or

total, a separate method has been prescribed in Ajay

Kumar (supra) for computation of compensation,

which would only be academic in the present case since

the present one is undisputed case of temporary

disability of the claimant for five years as found from the

disability certificate of claimant proved under Ext.9 and

confirmed by the learned Tribunal in Paragraph-9 of the

impugned judgment stating therein that Ext-9 is a case

of locomotor disability due to post traumatic partial

stiffness of left hip and the claimant is found with 28%

temporary disability and the certificate is recommended

for five years from 07.05.2019 till 07.05.2024, but the

same is never challenged by the claimants. In the

aforesaid backdrop, since the claimant's case is for

temporary disability of five years, neither future

prospects nor multiplier method is applicable for

computing compensation to the claimant.

6. Moving to the next challenge for awarding

of Rs.5,10,613/- hypothetically towards medical

expenditure of the claimant, it is not disputed that the

claimant was admitted as indoor patient in three private

hospital for 43 days, but the learned tribunal has

awarded a sum of Rs.5,10,613/- towards medical

expenditure of the claimant without any evidence by

simply observing such documents to have been

produced by the claimant, nonetheless the claim must

have incurred expenditure for his hospitalization for

43days. In the absence of any concrete evidence for

proof of medical expenditure by the claimant and on

hypothetical consideration, it would be considered to be

just & proper for modifying this amount to Rs.3,01,000/-

rounded off to Rs.3Lakhs @ Rs.7000/- per day for 43

days/.

7. Insofar challenge of the appellant to the

award made under the heading for hospitalization,

special diet, attendant charges; and loss of income

during the period of treatment, it appears that the

learned tribunal has awarded a consolidated sum of

Rs.50,000/- each on two heads; which in the

circumstances appears to be inconsonance with the

rulings of the Apex Court in Ajay Kumar (supra)

inasmuch as the claimant remained as a indoor patient

for 43days in different hospital and he thereby must

have incurred expenses on these items as well as he

must have suffered loss of income during the aforesaid

period of treatment. In the circumstances, this Court

does not find any cogent material/evidence to interfere

with the award of compensation under such heads.

8. Moving back to the challenge of the

appellant with regard to the assessment of disability of

the claimant, the principle as settled in Ajay Kumar

(supra) makes it very clear that all the injuries do not

result in loss of earning capacity, but disability actually

refers to any restriction or lack of ability to perform an

activity in the manner considered normal for a human

being, however, temporary disability refers to the

incapacity or loss of use of some part of the body on

account of the injury, which will cease to exists at the

end of the period of treatment and recuperation. It is,

therefore, as clear as noon day that in case of temporary

disability, it would cease to exist after certain period. In

the case at hand, the temporary disability of the

claimant is stated to be 28% and it was recommended

for five years i.e. from 07.05.2019 to 07.05.2024, but

the accident took place on 22.06.2015. Thus, it may be

stated that the temporary disability of the claimant

might be after the accident till 07.05.2024 and thereby,

it can be considered for a period of nine years. It is,

however, to be remembered that the same percentage

of a disability may result in different percentage of loss

of earning capacity in different persons depending upon

the nature of profession, occupation or job, age,

education or other factors. In this case, although the

learned tribunal has held the temporary disability of

claimant for five years, but it calculated the

compensation for him by adopting the formula of

permanent disability and loss of earning at the same

percentage of disability which is erroneous inasmuch as

the extent of temporary disability shall not be considered

as the same percentage of functional disability of the

whole of the body nor should it be considered as the

same extent disability for loss of earning capacity. In

this case, the claimant is a practicing advocate, but the

extent of 28% temporary disability in his case may not

result the same percentage of loss of earning due to

injuries. Further, it is found from the impugned

judgment that the claimant's is a case of locomotor

disability due to post-traumatic partial stiffness of left

hip and he had sustained injuries of LH of size 2 & half

inch x 1inch x 1/4inch muscle death on right lower plank

of abdomen, one abrasion of size 10inch x 1inch x

1/4inch and both the injuries were opined to be simple

in nature. Further, it is found therein that the claimant

had suffered fracture of pelvis on bilateral superior. It is,

therefore, clear that the extent of disability is not with

regard to whole of body, rather it is disability with

regard to locomotor. Besides, no evidence has been

produced to say or establish that as to how the income

of the claimant had suffered loss due to the temporary

disability, nevertheless the temporary disability should

have affected the loss of earning of the claimant for the

temporary period. In the sequence of events and in

absence of any specific evidence as to how the claimant

suffered loss of earning for the temporary disability, this

Court considers the temporary disability of the claimant

at 28%, but his functional disability at 20% and

accordingly, considers it in the interest of justice to

assess the loss of earning capacity of the claimant at

15% for nine years. The claimant has not produced any

evidence in support of proof of his income, but the

claimant has produced his IT Returns(ITR) for the year

2013-14, 2014-15, 2015-16, 2016-17, 2017-18, 2018-

19, however, the learned tribunal by taking into account

the ITR for the year 2015-16 has assessed the net

income of the claimant at Rs.4,86,652/- by taking into

consideration the date of accident to be 22.06.2015. In

this situation and in absence of any evidence produced

by the claimant towards his income, this Court takes the

average of the ITRs after the accident and assess annual

income to the claimant at Rs.4,80,000/- per annum to

calculate the loss of earning for the claimant for nine

years @ 15%. Accordingly, the loss of earning of the

claimant is calculated at 4,80,000x15%x9=6,48,000/-.

Hence, the final compensation to the claimant is

calculated in a tabular form which is as under: -

Sl                   HEAD                           AWARD
No.
1. Expenditure towards cost of           Rs.3,00,000/-
    medicine
2. Loss of earning due to                Rs.4,80,000x15%x9=
    temporary disability of the          Rs.6,48,000/-
    claimant @ 15% for nine years
3. Cost of Hospitalization, attendant    Rs.50,000/-
    Charges special died
4. Loss of income during the period      Rs.50,000/-
    Of treatment
5. Cost of transportation                Rs.5,000/-
6. Pain and suffering towards mental     Rs.50,000/-
    Agony
                  Total                  Rs.11,03,000/-

9. The claimant is also entitled to simple

interest @ 6% per annum on the final amount of

compensation w.e.f. the date of failing of the application

i.e. 22.10.2016 till actual realization, but the insurer is

not liable to pay any penal interest @ 8%.

10 In the result, the appeal by the insurer

stands allowed in part against R-1, but ex-parte against

R-2 on context, but no order as to costs. Consequently,

the impugned judgment is modified to the extent

indicated above and the insurer is directed to pay the

modified compensation amount to the claimant

together with simple interest @ 6% per annum w.e.f.