Soumya Kishore Mishra vs Bramhotri Mohanty &
2026 Latest Caselaw 1963 Ori

Orissa High Court

Soumya Kishore Mishra vs Bramhotri Mohanty & on 6 March, 2026

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   MACA No.577 of 2023

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

   Soumya Kishore Mishra              ...         Appellant
                           -versus-

   Bramhotri Mohanty &                ...      Respondents
   Another

   For Appellant          : Ms. S. Sahoo, Advocate

   For Respondents        : Mr. M.Chand, Advocate (R-1)
                            Mr. A. Dash, Advocate (R-2)


       CORAM:
                   JUSTICE G. SATAPATHY

                DATE OF HEARING : 20.02.2026
                DATE OF JUDGMENT: 06.03.2026
G. Satapathy, J.

1. In assailing the impugned judgment dated

15.03.2023 passed by the 4th M.A.C.T., Sundargarh (in

short, the "Tribunal") in M.A.C. Case No. 48/66 of

2018-22, the appellant, who was the claimant in such

proceeding has preferred this appeal U/S.173(1) of the

Motor Vehicles Act, 1988 (in short, "the Act") to

challenge the quantum of compensation as awarded to

him.

2. Bereft of unnecessary details, the present

appeal arises out of the proceeding before the learned

Tribunal in M.A.C. Case No. 48/66 of 2018-22 for an

accident that took place on 14.12.2017 at about

12.30PM, when the claimant, who by profession a

Constable then was going on a motorcycle bearing

Regd. No. OR-16B-1409 towards his rented house in

Jharsuguda near Durlaga Airport, Jharsuguda, one oil

tanker bearing Regd. No. OD-14B-8949 (hereinafter

referred to as "the offending vehicle") came in a rash

and negligent manner and dashed the motorcycle

resulting in serious injuries to the claimant, who after

the accident was shifted to different hospitals, but due

to accident, he became 90% disabled resulting in loss

of job for him, however, the accident was registered

vide Jharsuguda P.S. Case No. 821 of 2017 resulting in

submission of charge sheet.

2.1. On this accident, the claimant approached

the learned Tribunal in an application U/S.166 of the

Act claiming total compensation of Rs.50,00,000/-

under various heads for the loss suffered by him

arising out of the injuries in the accident by averring

inter alia about accident taking place due to rash and

negligent driving of the offending vehicle and him

loosing of his job with salary at Rs.25,630/- by

impleading the owner and insurer of the offending

vehicle. In response to the notice of the claim in

M.A.C. Case No. 48/66 of 2018-22, both the owner

and insurer of the offending vehicle appeared and filed

their written statement denying their liability, but the

insurer further denied its liability for paying

compensation to the claimant for him being rash and

negligent in the accident.

3. On the inter se pleadings of the parties,

the learned Tribunal framed primarily two issues with

regard to rash and negligent driving of the driver of

the offending vehicle and the entitlement of the

claimant to the compensation and accordingly, allowed

the parties to lead evidence, however, the claimant

examined himself and another Gangadhar Oram as

PWs.1 & 2 and exhibited around 22 documents under

Exts.1 to 21 together with one letter under Exts.X as

against the oral evidence of OPW.1 and documentary

evidence of Exts A to C by the OPs. After appreciating

the evidence on record upon hearing the parties, the

learned Tribunal by the impugned judgment directed

the insurer-cum-Respondent No.2 (R-2) to pay

compensation of Rs.35,71,648/- @ 50% of the liability

together with 6% Simple Interest (SI) per annum to

the claimant on a proportion of 50-50% contributory

negligence, but the claimant being aggrieved with the

apportionment of liability at the rate of 50-50% has

preferred this appeal for enhancement of

compensation.

4. Heard, Ms. Sushrita Sahoo, learned

counsel for the appellant, Mr. Anupam Dash, learned

counsel for R-2 and Mr. Manas Chand, learned counsel

for R-1 in the matter and perused the record.

5. After having considered the rival

submissions upon perusal of record, primarily the

points emerge for consideration in this appeal are

whether the claimant had in fact contributed to the

accident and whether the award is just and proper.

Moving to the first issue, it appears that the learned

Tribunal has referred to the evidence of the claimant

and concluded that the claimant and the driver of the

offending vehicle had equally contributed to the

accident, but such finding has been seriously

challenged by the claimant in this appeal, however,

except taking this Court through the averments made

in the claim application, no document or anything had

been produced by the claimant-appellant before this

Court to suggest that the offending vehicle was only

rash and negligent. On the other hand, it is found from

the cross-examination PW.1 (claimant) that he has

admitted to have been riding the motorcycle at the

relevant time and he was proceeding from Sundargarh

to Jharsuguda on Biju Express High Way and the

offending vehicle was coming from Jharsuguda side

and it was a head-on-collision with the offending

vehicle. The aforesaid evidence of claimant clearly

reveals that the accident was a head-on-collision, but

the spot map exhibited by the claimant under Ext.8

reveals that the accident took place on the right side

of the road for the claimant. Besides, the claimant has

not produced the copy of the final form in this case,

however, the oral evidence together with the

documentary evidence clearly discloses that the

claimant had also contributed for the accident. In this

regard, this Court finds some substance in the decision

relied by the R-2 in Bijoy Kumar Dugar vs.

Bidyadhar Dutta & Others; (2006) 3 SCC 242

wherein the Apex Court at paragraph-12 has been

pleased to observe that when the vehicles had a head-

on-collision, the drivers of both the vehicles should be

held responsible to have contributed equally to the

accident and the finding on this issue is a finding of

fact. It is, therefore, clear in this case that the two

vehicles met with an accident on head-on-collision and

the injured was coming from opposite side by riding a

motorcycle, whereas the offending vehicle was coming

in front of him and the accident took place on the right

side of the claimant. In the aforesaid circumstance,

there is no escape for the claimant for contributory

negligence and the learned Tribunal has rightly held

that both the motorcycle and the offending vehicle had

equally contributed to the accident and they are,

therefore, liable on the proportion of 50-50%.

6. Once it is decided that the liability of both

the vehicles is for 50-50%, the next question

automatically comes before this Court is whether the

award is just. In this case, the learned Tribunal on

appreciation of evidence including the disability

certificate had accepted the disability of the claimant

at 90% by observing inter alia in paragraph-7 of the

impugned judgment, which reads as under:-

"7. Considering the disability, this Tribunal is of the opinion that the injured can pursue his service in future. XXX XX XX Although severe dispute was raised by OP No. 2 regarding the service particulars, but Exts.12, 18/1, 18/2, 19 & 21 reveals that he (claimant) was removed from the service after met with the accident and again was reinstated and he has been posted at Head Quarter but the petitioner has not yet joined his service. From the disability certificate vide Ext.13 and opinion of this Tribunal as reflected in the evidence at para-19 of the cross-examination clearly reveals that because of his disability, the petitioner has not yet found himself to be capable to join in the service."

The aforesaid finding was never been validly

challenged by the insurer either by filing an appeal or

by way of cross objection, but on the other hand, it is

elicited by the insurer in the cross-examination of the

claimant (PW.1) that soon after the accident as he

failed to join, his authority terminated him from

service, but later on satisfaction upon his show cause,

his authority reinstated him. Further, the learned

Tribunal while recording the evidence of the claimant

has noted his demeanor as under:-

"the witness, who is the injured in this case is found to have come to the Court with an attendant for his movement. His right hand appears to have suffered paralytic as the witness has put on an arm sling to support his hand. He has also put on a band to support his right wrist."

7. It is further found from the cross-

examination of PW.1 by the insurer that he has not

filed any document for his dismissal from service. No

evidence has been produced by the insurer to claim

that the claimant has not been terminated from

service for being medically unfit. This Court, however,

has called for a report from the authority of the

claimant only to find him to be dismissed from service

w.e.f. 31.08.2020 for being medically unfit. It is,

therefore, very clear that the claimant has suffered

loss of service due to the injury arising out of the

accident and his disability has been assessed at 90%

by the learned Tribunal, however, the insurer strongly

disputes the extent of disability of the claimant, but it

is found from the cross-examination of claimant made

by the insurer that the claimant after completion of

treatment had made application before the Medical

Board, Sundargarh for obtaining the disability

certificate and he had attended the medical board at

Sundargarh and the members of the Medical Board

examined him physically so also by going through the

relevant documents and had issued the disability

certificate-Ext.13 to him. The aforesaid evidence

clearly negates the claim of the insurer to dispute

Ext.13. It is to be remembered here that all the

injuries do not result loss of earning capacity and the

percentage of permanent disability with reference to

the whole body of a person cannot be assumed to be

the percentage of loss of earning capacity. In other

words, the percentage of loss of earning capacity is

not the same as the percentage of permanent

disability except in few cases where the percentage of

loss of earning capacity is same as the percentage of

permanent disability, nevertheless, the loss of earning

capacity has to be assessed with reference to the

evidence in entirety. The disability of the claimant is,

however, remains unchallenged and it is found from

the evidence on record that the claimant has lost his

job for the disability and, therefore, this Court

considers it to be a case of permanent disability of

90%, but his functional disability, however, may vary,

however, the loss of future earning capacity has to be

considered at 100% for loss of the job by the

claimant. Accordingly, the learned Tribunal should

have computed the compensation for the claimant for

loss of future income by taking the disability of 100%

for loss of future earnings. Hence, this Court considers

it to be quite relevant, but natural to assess the loss of

future earning of the claimant at 100% and the

amount thereon would be calculated at Rs.25,630/-

which is the salary of the claimant as per the evidence

on record and thereby, adding 50% to it towards

future prospect of the claimant, the amount would be

Rs.25,630/- + 50% of Rs.25,630/-= Rs.38,445/-.

Thus net loss of future earnings for the claimant would

be Rs.38,445/- x 12 x 16 (multiplier) =Rs.73,81,440/,

which is the net amount towards loss of future

earnings of the claimant @ 100% disability. In

addition, this Court hardly finds any flaw for the

amount so awarded to the claimant by the learned

Tribunal under the headings of medical expenses,

transportation, special diet, attendant charges at

Rs.3,00,000/-; pain and suffering at Rs.1,00,000/-;

and loss of amenities at Rs.1,00,000/- which were

calculated nominally. Accordingly, the compensation is

recalculated at Rs.78,81,440/-, but since the claimant

was equally responsible for the accident, his liability of

50% has to be deducted from this amount and he is

entitled to 50% of such amount which is calculated at

Rs.39,40,720/-. The appellant is also entitled to SI

@6% per annum from the date of filing of claim

application i.e. on 01.10.2018 till actual realization.

8. In the result, the appeal by the claimant

stands allowed in part on contest, but in the

circumstance, there is no order as to costs and the

impugned judgment is modified to the extent indicated

above. The insurer-R-2 is, hereby directed to pay a

sum of Rs.39,40,720/- together with SI @ 6% per

annum w.e.f. 01.10.2018 to the injured claimant

within 08 weeks hence. On deposit of such modified

compensation amount, the same shall be disbursed to

the claimant proportionately in terms of the award.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 6th day of March, 2026/S.Sasmal