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2014 DIGILAW 461 (ORI)

Pulak Pati v. Prafulla Kumar Bhanja

2014-08-01

RAGHUBIR DASH

body2014
JUDGMENT RAGHUBIR DASH, J. 1. This appeal is preferred by the claimant against the order dated 20.05.2005 passed by the learned Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 1213 of 1992 whose claim application has been allowed in part and a sum of Rs.50,000/- has been awarded as against his claim for compensation to the tune of Rs.2,00,000/- for the injuries he had suffered in a motor vehicle accident that took place on 26.10.1992. 2. The appellant filed the claim petition asserting that on 26.10.1992, as a gratuitous passenger he had traveled in a car owned by opposite party-respondent No.1. While the driver was driving the car in N.H. 42 in a rash and negligent manner, the car suddenly swiveled towards its right side and dashed against one OSRTC Bus which was coming from the opposite direction. After the dash the car moved ahead in an imbalanced manner and at last collided against a road side tree. Because of the impact of the accident the appellant sustained severe injuries. He underwent a prolonged treatment spending around Rs.40,000/-. However, since he had sustained fracture of mandible and maxilla with lacerated injury over his face with facial paralysis as well as permanent disfiguration of his face, he claimed Rs.2,00,000/- as compensation. 3. Respondent No.1 is the owner of the car. Respondent No.2 is the owner of the Bus. Respondent No.3 is the Insurance Company under which the car was insured. 4. Learned Tribunal has directed the respondent No.3 to pay the award amount with cost of Rs.200/- and interest @ 9% per annum, not from the date of the application for compensation but from 06.01.1998, the date when respondent No.3 entered appearance before the Tribunal. 5. The award is challenged on the ground that the compensation awarded is unjust and that the interest should have been allowed from the date of application, i.e. 22.12.1992 and the rate of interest should have been 12% per annum. 6. Learned counsel for the appellant argues that the material evidence available on record was either not taken into consideration or rejected on flimsy grounds and had the evidence been properly appreciated the award should not have been less than Rs.2,00,000/-. 6. Learned counsel for the appellant argues that the material evidence available on record was either not taken into consideration or rejected on flimsy grounds and had the evidence been properly appreciated the award should not have been less than Rs.2,00,000/-. Learned counsel for the respondent No.3, on the other hand, argues that the policy covering the offending vehicle being act only policy, risk of gratuitous passenger carried in a private vehicle is not covered by such policy. 7. In order to prove the accident, the nature and extent of injury suffered by the appellant and the kind of treatment he had undergone, two doctors have been examined. One of the co-passenger (P.W.2) has stated that the injured was carried from the spot first to S.C.B. Medical College & Hospital, Cuttack and then, as no immediate care was taken there, the injured was admitted in Seva Nursing Home, Cuttack. P.W.3 is a doctor as well as the proprietor of the Nursing Home. Appellant’s admission in the Nursing Home and the period of treatment and the injuries he had sustained in the accident are not in dispute. What is in controversy is the opinion expressed by P.W.3 that the disability of the victim is to the extent of 50% and it is permanent in nature. Learned Tribunal did not accept this opinion evidence observing that P.W.3 has got no specialization in the field of medical profession. Learned counsel for the appellant submits that nothing has been asked to P.W.3 during his cross-examination to bring it on record that P.W.3 has got no specialization in the field of medical profession. He claims to be a private practitioner. He also claims to be running a Nursing Home. These facts are not challenged during cross-examination. It was simply suggested that the appellant had not sustained serious injuries. So, it is not correct to say that P.W.3 is incapable of adducing evidence on the nature of injuries and the extent of physical disability. Learned Tribunal on the basis of his own observation (at the time of victim’s examination before the Tribunal), noticed that though the appellant claimed that he was not able to speak properly in fact he was talking fluently without any difficulty. Learned Tribunal on the basis of his own observation (at the time of victim’s examination before the Tribunal), noticed that though the appellant claimed that he was not able to speak properly in fact he was talking fluently without any difficulty. Further, looking to the activities of the appellant after his discharge from the Nursing Home the tribunal did not believe that he suffered from any disability which would deprive him to perform his normal duties. It is admitted position that the appellant, after his discharge from the hospital, has been continuing in the same service as he was prior to the accident. Rather, his salary got increased from Rs.6,000/- to Rs.10,000/- and he also got one promotion while continuing under the same employer. Observing all these, learned Tribunal has opined that infirmity, if any, that appellant has been suffering, has not affected his future earning prospect. 8. One Assistant professor of S.C.B. Medical College & Hospital, Cuttack, who attended the victim at the private Nursing Home on requisition, is examined as P.W.4. He has stated that the victim suffered fracture of mandible and maxilla with lacerated injury over the face and his facial nerve was paralyzed because of injury to the facial skeleton. He has further stated that the victim had suffered loss of multiple teeth. He also stated that after his discharge from the Nursing Home, the victim had been under his treatment. He also further stated that last time he had examined the victim on 26.12.2001 and found that one side of his face was deviated towards the right side due to paralysis of the left side and that he had suffered loss of occlusion. He further stated that the victim was unable to close his left eye due to facial palsy. On these aspects nothing was asked to the witness during cross-examination. It was simply suggested to him that he had exaggerated the condition of the patient as he had attended to the victim in his private clinic. P.W.4 is an Assistant Professor, Oral & Maxillotacias Surgery in S.C.B. Medical College & Hospital, Cuttack. He has got expertisation in the field on which he has deposed. Nowhere in the impugned award learned Tribunal has taken into consideration the testimony of this witness. P.W.4 is an Assistant Professor, Oral & Maxillotacias Surgery in S.C.B. Medical College & Hospital, Cuttack. He has got expertisation in the field on which he has deposed. Nowhere in the impugned award learned Tribunal has taken into consideration the testimony of this witness. His evidence has been discarded simply on the ground that there is nothing on record showing that he had attended the patient in Seva Nursing Home. 9. Taking into consideration that the appellant had filed bills/receipts amounting of Rs.29,330/- (Rupees twenty nine thousand three hundred thirty) showing the extent of expenditure for his treatment, the nature of injuries sustained by the appellant; pain and suffering undergone and the mental agony suffered by him due to deformity and the loss of income the Tribunal has awarded a lump sum amount of Rs.50,000/- as just compensation. Thus the learned Tribunal accepts that due to the injury sustained in accident, the appellant has sustained deformity. Learned Tribunal has not accepted evidence of P.W.3 on the appellant’s suffering 50% disability for the reason that even after the accident the appellant is continuing in the earlier service, and got enhanced salary as well as promotion. 10. In Manoj Goutam vs. Surjit Singh and Another, 2012 (2) TAC 241 (P&H), the appellant therein had suffered disability to the tune of 50% but the Tribunal did not award any amount as compensation for loss of his future income. On behalf of the Respondents it was argued that the disability did not affect the future prospects of appellant’s income, in as much as he had rejoined the company where he was in service before the accident and started the field job as usual. It was also argued that the appellant’s income got increased after the accident. The High Court observed that in case of permanent disability, compensation can be awarded under two heads. The first is loss of future income and the second is loss of future enjoyment of life on account of the disability. Since, the injured in that case did not suffer loss of future income on account of the disability, the demand for compensation on that account was unacceptable but so far loss of future enjoyment of life was concerned, it was held that the appellant was entitled to compensation of Rs.1,00,000/-. Since, the injured in that case did not suffer loss of future income on account of the disability, the demand for compensation on that account was unacceptable but so far loss of future enjoyment of life was concerned, it was held that the appellant was entitled to compensation of Rs.1,00,000/-. Here, it is worth mentioning that in that case the accident occurred in 2006, that the appellant was working as a medical representative with monthly income of Rs.10,000/- and he was aged about 33 years. 11. In the case at hand, the accident occurred in 1992 the appellant was working as a manager with monthly salary of Rs.6,000/- and was aged about 35 years at the time of accident. According to the doctor and also as observed by the learned Tribunal, the appellant had sustained deformity of his face. One of the doctor has opined that the appellant has suffered 50% permanent disability. Taking all these factors into consideration this Court is of the considered view that for the loss of future enjoyment of life the appellant should have been awarded compensation of Rs. 50,000/- over and above the compensation learned Tribunal has awarded. 12. So far the interest part is concerned learned Tribunal has directed payment of interest from the date the opposite party-respondent No.3 entered its appearance before the Tribunal. While doing so learned Tribunal has not assigned any reason. Therefore, the award of interest making it payable from a date subsequent to the date of application cannot stand the test of scrutiny. Respondent No.3 has also not pointed out as to why interest should not be made payable with effect from the date of application. Under such circumstances, the appellant is held entitled to get interest from the date of his application for compensation. Tribunal has allowed interest @ 9% per annum which cannot be said to be on the lower side. So, the prayer for enhancement of rate of interest is tenable. 13. In the result, the appeal is allowed in part. The impugned award shall stand modified to the extent indicated above. The amount of compensation is enhanced from Rs.50,000/-to Rs.1,00,000/- (Rupees one lakh) and the interest at the rate of 9% shall be payable on the award amount from the date of the application till the date of payment.