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2011 DIGILAW 209 (ORI)

Pravash Chandra Giri v. Orissa Stevedore Limited

2011-03-31

B.N.MAHAPATRA

body2011
JUDGMENT B.N. Mahapatra, J. 1. This appeal has been filed by the claimant against judgment dated 17.09.1999 passed by the Member, 3rd M.A.C.T., Bhubaneswar in M.A.C.T. Misc. Case No.312 of 1993. 2. The appellant’s case in a nutshell is that while the appellant proceeding towards Mancheswar by a cycle, stood by the side of the foot path to cross the road, one Maruti Van bearing registration No.W.B.-02A/6513 came from Bhubaneswar side with high speed and dashed against him. As a result, he was thrown at a distance and sustained severe injuries on his person. Immediately, he was taken to Capital Hospital, Bhubaneswar and one day thereafter he was removed to S.C.B. Medical College and Hospital, Cuttack. He was under treatment in the said hospital for 15 days as an indoor patient. After discharge, while he was in his village felt pain in his right shoulder and got treated in a private clinic at Rasulgarh. As he was not completely cured, he remained under treatment of a doctor at Cuttack. In his claim petition, he claimed his income as Rs.50/-per day. As he was unable to work as a Helper, he claimed compensation of Rs.1,50,000/-. 3. Owner of the offending vehicle entered his appearance and filed his written statement denying the claim of the claimant-appellant that the vehicle caused accident due to rash and negligent driving of the driver. According to the owner, there was contributory negligence on the part of the claimant and also the driver of the offending vehicle. 4. Insurance Company-respondent No.2 appeared and filed written statement taking the stand that the Company had no knowledge of such accident and even if there was such an accident, the driver of the offending vehicle had no valid driving licence and the vehicle was not duly covered under insurance. It was also pleaded that the amount of compensation is high and excessive. 5. On the above rival pleadings, four issues were framed by the learned Tribunal. Before the Tribunal, the claimant examined two witnesses and exhibited 13 documents whereas no witness was examined on behalf of the respondents. 6. After considering evidence both oral and documentary, learned Tribunal came to the conclusion that due to rash and negligent driving of the driver of the offending vehicle, the claimant faced with the accident. Before the Tribunal, the claimant examined two witnesses and exhibited 13 documents whereas no witness was examined on behalf of the respondents. 6. After considering evidence both oral and documentary, learned Tribunal came to the conclusion that due to rash and negligent driving of the driver of the offending vehicle, the claimant faced with the accident. The Tribunal awarded a compensation of Rs.5,000/-towards injuries sustained by the claimant, Rs.600/-for loss of income for 12 days and Rs.5,000/-towards treatment. The Tribunal also awarded interest at the rate of 12% per annum from the date of filing of the claim petition, i.e., 30.07.1993 till the date of payment. 7. Learned counsel for the claimant submits that the claimant has sustained grievous injuries for which the award of compensation of Rs.5,000/-is very negligible. The further claim of the claimant is that though he has produced copy of the cash memos which were exhibited as Ext.10 to Ext.10/17, the same were not taken into consideration at the time of determining the compensation towards treatment. Nothing has been compensated towards pain and suffering. There is also no award towards loss of future income. 8. Mr.Parija, learned counsel for the respondent-Insurance Company supports the compensation awarded by the Tribunal to be just and proper which warrants no interference by this Court. According to Mr. Parija, no disability certificate has been produced to the effect that the claimant has become invalid because of the said accident and became unable to work in future. Further stand of Mr.Parija is that there was contributory negligence on the part of the claimant as well as the driver of the offending vehicle which was not taken into consideration by the learned Tribunal while passing the award. However, the learned Tribunal is justified in not taking into consideration the cash memos, as the name of the claimant does not appear on any of the said cash memos; so, the same are concluded to be fake. 9. Admittedly, the present appeal has been filed by the claimant. No appeal is filed on behalf of the Insurance Company. It is also not in dispute that the appellant sustained injuries because of the accident caused by the offending vehicle, i.e., Maruti Van and immediately after the said accident, the injured claimant was shifted to Capital Hospital and after one day stay there, he was referred to S.C.B. Medical College and Hospital, Cuttack. It is also not in dispute that the appellant sustained injuries because of the accident caused by the offending vehicle, i.e., Maruti Van and immediately after the said accident, the injured claimant was shifted to Capital Hospital and after one day stay there, he was referred to S.C.B. Medical College and Hospital, Cuttack. This shows that the injuries sustained by the claimant are grievous in nature. Further, the finding of the Tribunal regarding nature of injuries at paragraph-7 of the judgment is that the discharge certificate-Ext.6 shows that besides head injury, the claimant sustained fracture to his right clavicle and for that he was admitted into hospital from 13.02.1993 to 24.02.1993. Exhibits 7 and 8 speak about the prescriptions and also support the fact of further treatment of the claimant. Considering the nature of injury sustained by the claimant, this Court is not inclined to accept the determination of compensation at Rs.5,000/-, which appears to be very low. Now-a-days, the treatment is quite expensive and the award of Rs.5,000/-is certainly very low which this Court feels that it should be Rs.20,000/-. So far as the claim of the claimant that he was unable to work as Helper after he recovered from the injuries, no documentary evidence is there to support the same before the Tribunal. Therefore, the Tribunal has rightly expressed its inability to accept the claim of the claimant in that regard. Hence, the stand taken by Mr.Parija that no disability certificate was produced has some force for which no compensation has been awarded towards loss of future income. The Tribunal has taken into consideration 12 days towards loss of income at the rate of Rs.50/-per day as claimed in the claim petition which appears to be justified. So far as award of compensation of Rs.5,000/-towards treatment is concerned, it is found from the judgment that the claimant has produced some cash memos before the Tribunal which were exhibited as Exts.10 to 10/17, but the finding of the Tribunal is that the name of the claimant does not appear in those cash memos. It is not in dispute that the claimant sustained fracture to his right clavicle and underwent treatment both in Capital Hospital, Bhubaneswar and in S.C.B. Medical College and Hospital, Cuttack and the expenses towards treatment determined at Rs.5,000/-appears to be very less. The same should have been determined at Rs.10,000/-. It is not in dispute that the claimant sustained fracture to his right clavicle and underwent treatment both in Capital Hospital, Bhubaneswar and in S.C.B. Medical College and Hospital, Cuttack and the expenses towards treatment determined at Rs.5,000/-appears to be very less. The same should have been determined at Rs.10,000/-. Nothing from the judgment, is found to have been awarded towards pain and suffering. 10. Mr. Parija, learned counsel for the Insurance Company claims that the award of interest at the rate of 12% per annum is high and excessive. However, as directed by the Tribunal, the Insurance Company paid the compensation along with 12% interest per annum without preferring appeal. Therefore, this Court is not inclined to interfere with the rate of interest awarded by the Tribunal. 11. In view of the above, the respondent-Insurance Company is directed to deposit an amount of Rs.30,000/-as compensation (Rs.20,000/-towards injuries sustained + Rs.10,000/-towards treatment expenses) as indicated above along with interest at the rate of 12% per annum from the date of filing of the claim petition, i.e., 30.07.1993 within a period of three months from today deducting there from the amount already paid. 12. In the result, the appeal is allowed to the extent indicated above. ..……………………..