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2016 DIGILAW 253 (ORI)

Pabitra Nayak v. Siba Sahoo

2016-03-31

BISWANATH RATH

body2016
JUDGMENT : Biswanath Rath, J. 1. These are two appeals under Section 173 of the Motor Vehicle Act. M.A.C.A. No. 486 of 2015 is at the instance of the claimant seeking enhancement of the compensation awarded by the 2nd Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 80 of 2012 whereas the M.A.C.A. No. 770 of 2015 is at the instance of the National Insurance Company Ltd., challenging the quantum of compensation granted by the 2nd Motor Accident Claims Tribunal Cuttack in the aforesaid Misc. Case. 2. Short facts involved in the case are that the appellant in the first case being the claimant while was travelling in a truck bearing Registration No.OR-J-3324 from Biridi to Dhenkanal as a labourer at 1 P.M. on 10.2.2012, on the way near Ganapati Dhaba on N.H.42, met with an accident due to rash and negligent driving of the driver of the said truck by dashing against a truck from its behind proceeding in the same direction. The claimant sustained severe injuries on his person and was immediately shifted to District Headquarter Hospital, Dhenkanal. For developing complications, the claimant was further shifted to S.C.B. Medical College & Hospital, Cuttack for better treatment. On the plea that he has sustained major injuries to his body with loss of physical disability to the extent of 70% for complete amputation of left leg and for having prolonged treatment, ultimately resulting total loss of earning capacity, made a claim of Rs.35,60,000/-. In substantiating his case, the claimant-appellant submitted that he being a labourer in a truck, his income was Rs.7,500/-per month. Considering the statement of O.P.1, the owner of the offending truck, the Tribunal held the income of the petitioner to be Rs.3,500/- per month in the year of accident and after observing the accident caused due to rash and negligent driving of the driver of the offending truck, caused the accident, it’s driver having a valid driving licence as well as valid insurance, the Tribunal ultimately granted a sum of Rs.6,85,200/- along with interest as indicated therein with further direction in respect of mode of release of the compensation. 3. In filing the M.A.C.A. No.486 of 2015, the claimant-appellant submitted that looking to the injury sustained by the claimant having total loss of income, the compensation awarded by the Tribunal was at a very lower side. 3. In filing the M.A.C.A. No.486 of 2015, the claimant-appellant submitted that looking to the injury sustained by the claimant having total loss of income, the compensation awarded by the Tribunal was at a very lower side. The grant on the head of future earning is also at a very lower side. The extent of disability vis-a-vis the loss of earning capacity should have been treated as 100% rather than 80% as decided by the Tribunal. The appellant-claimant also claimed interest at the rate of 7% per annum from the date of filing of the claim application. In his opposition, learned counsel appearing for the Insurance Company referring to the grounds taken in it’s appeal (M.A.C.A. No. 770 of 2015), contended that in view of grant of compensation on the head of loss of income and loss of future income, the grant of compensation on the head of three fractures is illegal. Similarly, grant of Rs.50,000/-towards expenses relating to hospitalization, transportation, nourishing, attendant’s cost, food and miscellaneous expenses and grant of a further sum of Rs.50,000/- towards damages for pain, suffering, trauma as consequence of injuries, are all without any basis. The Insurance Company also opposed to the grant of Rs.20,000/- towards loss of expectation of life and Rs.30,000/- towards loss of amenities, discomfort and unhappiness is also quite unreasonable. It is on these premises, learned Senior Counsel on behalf of the Insurance Company prayed for interference in the impugned judgment and reducing the compensation thereby. 4. Heard learned counsel for the parties in both the appeals. Both the appeals since involve a common judgment, both are disposed of by this common judgment. Referring to the factual background of the case and the claims of the parties, this Court observes that this is a case of rare in nature where a labourer facing road accident landed into complete amputation of his left leg. Looking to the Medical certificate available on record, the injury report, the disability certificate, there is no doubt that for the survival of the person in the category of labourer, he has to suffer more than death. The claimant not only landed himself in unemployment for his suffering on account of the accident, he becomes dependant on his family members all through his life. Being the sole bread earner, the misery to the family can well be understood. The claimant not only landed himself in unemployment for his suffering on account of the accident, he becomes dependant on his family members all through his life. Being the sole bread earner, the misery to the family can well be understood. The materials on record, the photograph of Pabitra Nayak marked as Ext.8 is a clear reflection of suffering of the person involved in the case. Further, looking to the plethora of documents establishing long term treatment by the claimant ending with amputation of one leg. Further, looking to the disability certificates filed vide Exts.6 and 7 and the documents establishing the expenses incurred by the claimant-appellant for his treatment in the hospital during this period, this Court does not find any error in the calculation of compensation on different heads by the Motor Accident Claims Tribunal. On the other hand, looking to the nature of injury and loss of earning by a labourer having amputation of one of his legs, this Court even though is not inclined to interfere in the aspect of annual income of the claimant, but is inclined to interfere in the aspect of loss of future earning and raises the same to 100% of the annual income. Consequently, for the loss of future earning, the claimant is entitled to Rs.42,000 x 7 = Rs.2,94,000/-. Similarly, so far as the claim of the claimant-appellant, it relates to loss of damage for pain suffering, trauma and consequence of injury and loss of expectation of life, this Court enhances the compensation awarded by the tribunal on this head Rs.50,000/- and Rs.20,000/- respectively at the rate of Rs.75,000/- and 50,000/-. Following a case in the matter of Govind Yadav v. The 6 New India Insurance Co. Ltd. reported in (2011) 10 SCC 683 in case of amputation of one leg, this Court inclines to enhance the compensation on the head of loss of amenities, discomfort and unhappiness from Rs.30,000/- to Rs.1,50,000/- (Rupees one lakh fifty thousand) and consequently holds the claimant-appellant entitled to a sum of Rs.2,94,000/- + Rs.6,25,000/- = Rs.9,19,000/- (Rupees nine lakhs nineteen thousand). Considering the accident to have taken place on 10.2.2012, the compensation amount will bear interest at the rate of 7% per annum from the date of filing till date of payment and at the rate of 9% per annum from the date of judgment of the Tribunal till the date of release. Considering the accident to have taken place on 10.2.2012, the compensation amount will bear interest at the rate of 7% per annum from the date of filing till date of payment and at the rate of 9% per annum from the date of judgment of the Tribunal till the date of release. In the event of failure in deposit of the amount in time, the claimants shall be entitled to interest @ 12% per annum from the date of judgment of this Court till its release. 5. Under the circumstances, while allowing the M.A.C.A. No. 486 of 2015 at the instance of the claimant-appellant to the extent indicated hereinabove, this Court dismisses the M.A.C.A. No. 770 of 2015 at the instance of the National Insurance Company. However, there is no order as to cost.