Disposed

Oriental Insurance Co.Ltd. v. Pradip Ku.Sahu

Orissa HC10 Feb 2023MACA/1003/2018

Case brief

AI extract

What is this about?

High Court disposed of an appeal by an insurer against compensation awarded for motor accident injuries. The Court held legal heirs of the deceased injured are entitled to loss of future income and specific deductions are limited to pain and suffering and partial loss of amenities. Compensation of Rs.5,61,527 with 6% interest was directed to be paid.

What did the court decide?

Order disposed with a direction to deposit compensation of Rs.5,61,527 with 6% interest.

Oriental Insurance Co.Ltd. Vs Pradip Ku.Sahu — Motor Accident Claims | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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MACA No.1003 of 2018

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(From the judgment dated 3^rd April, 2018 passed by the 3^rd M.A.C.T., Bhubaneswar in M.A.C.No.317 of 2023)

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Versus

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Pradip Kumar Sahu and Another ….… Respondents Advocate(s) appeared in this case:For Appellant : Mr. P.K. Panda, Advocate For Respondents : Mr.P.K. Mishra, Advocate (for Respondent Nos. 1(a) to 1(c)) CORAM : JUSTICE B.P. ROUTRAY

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JUDGMENT 10^th February, 2023 B.P.Routray, J.

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Present appeal by the Insurer is directed against the impugned

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judgment dated 3^rd April, 2018 passed by 3^rd MACT, Bhubaneswar, in M.A.C. No.317 of 2003, wherein compensation to the tune of Rs.6,61,527/- has been granted along with interest @7% per annum

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with effect from the date of filing of the claim application on account of injury sustained by the Claimant in the motor vehicular accident on 18^th July, 2003.

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Page 1 of 7

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Heard Mr.Panda, learned counsel for the Appellant and

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Mr.Mishra, learned counsel for the L.Rs of deceased ClaimantRespondent Nos. 1(a) to 1 (c).

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The accident took place on 18^th July, 2003 and during pendency of the appeal the Claimant-Respondent No.1 namely, Pradip Kumar Sahu, died on 28^th August, 2020. He was then substituted by the present Respondent Nos. 1(a) to 1(c), his L.Rs.

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Mr.Panda, learned counsel for the Insurer challenge the impugned award mainly on the ground that the income of the original injured Claimant is not established on record with adequate proof and therefore, the amount computed by the Tribunal is liable

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for reduction.

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It is seen that according to the original injured, he was a vegetable vendor and earning Rs.4500/- per month. However, the

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Tribunal in absence of any other evidence except the oral statement of the injured, has fixed the income at Rs.3000/- per month. No infirmity is seen in said approach of the Tribunal in absence of the rebuttal evidence adduced from the side of the Insurer against the contention of the injured. What is submitted by Mr.Panda to assess his income as a daily wager at the minimum wage rate prescribed

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for un-skilled labourer is without any merit for consideration

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Page 2 of 7

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because in all cases for absence of proof in support of the oral statement of the injured he cannot be disbelieved regarding his profession. Moreover, it is unexpected on the part of a vegetable vendor to produce documents in support of his income proof.

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The injury to the original Claimant is regarding amputation of left leg below the knee and has been certified to be 65% permanent disability by the Medical Board. In the case of

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Rajkumar-vrs-Ajay Kumar 48 OCR (SC)-214 the principles have been well-settled to assess functional disability based on the physical disability and keeping in view the nature of work and income. Further, in case of Sayad Sadiq, etc -vrs- Divisional Manager, United India Insurance Co.Ltd, 2014(1) TAC 369 (SC) and in the case of Mohan Soni -vrs- Ram Avtar Tomar & Others,

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2012 (1) TAC) 385 (SC), the position has been clarified relating to specific injuries. It is seen that the Tribunal has assessed functional disability to the extent of 60% in respect of the injured, who was a vegetable vendor. In such position, the loss of future income was calculated to the tune of Rs.3,88,800/-. The same is found without any flaw and this Court fully agrees with the assessment of functional disability to the extent of 60%. So no reasons is found to disturb the quantification of loss of future income and the same is confirmed at Rs.3,88,800/-. It is important to mentioned here that

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Page 3 of 7

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though no future prospects has been added to the income of the injured but in absence of any challenge from the side of the Claimant (or by the L.Rs of the Claimants), this Court refrains from entering into such aspect.

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Besides the loss of future income as stated above, that

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the Tribunal has granted compensation of Rs.6227/- for treatment expenses, Rs.6,000/- towards actual loss of income, Rs.6,000/- for attendant charges, Rs.50,000/- towards prosthetic leg, Rs.1,00,000/for loss of amenities, Rs.2,000/- for special diet, Rs.2,000/- for transportation charges, Rs.1,00,000/- for pain and suffering and Rs.500/- for litigation expenses, thereby totaling to Rs.6,61,527/-.

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Next regarding the effect of the death of the original injured during pendency of the appeal, Mr.Panda, learned counsel for the Insurer submits that all such non-pecuniary damages including loss of future income granted by the Tribunal are to be deducted from the total compensation amount since the L.Rs of the original injured would not be entitled for the same. Mr.Mishra, learned counsel for the L.Rs of the original Claimant submits by citing the decision of the Supreme Court rendered in the Oriental

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Insurance Company Co.Ltd-vrs- Kahlon @ Jasmail Singh Kahlon,

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Page 4 of 7

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2021 (4) TAC 1 (SC) , that, the L.Rs of the injured Claimant (now deceased) are entitled for loss of future income.

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In the case of Kahlon (supra) it was contended by the insurance company before the Supreme Court that the legal heir of a injured who died subsequently unrelated to the accident or the injuries, the loss of salary, future prospect, pain and suffering along with attendant charges are not to be deducted as the same do form

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part of the estate of the deceased. The Hon’ble Supreme Court by referring to several decisions have read that, the loss of estate interalia includes income and future prospects. The relevant observations

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in the said case are as follows:-

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“9. The Act is a beneficial and welfare legislation. Section 166(1) of the Act provides for a statutory claim for compensation arising out of an accident by the person who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. Property, under the Act, will have a much wider connotation than the conventional definition. If the legal heirs can pursue claims in case of death, we see no reason why the legal representatives cannot pursue claims for loss of property akin to estate of the injured if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1(c) of Section 166 . Such a claim would be completely distinct from personal injuries to the claimant and which may not be the cause of death. Such claims of personal injuries would undoubtedly abate with the death of the injured. What would the loss of estate mean and what items would be covered by it are issues which has to engage our attention. The appellant has a statutory obligation to pay compensation in motor accident claim cases. This obligation cannot be evaded behind the defence that it was

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Page 5 of 7

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available only for personal injuries and abates on his death irrespective of the loss caused to the estate of the deceased because of the injuries. XX .. .. XX ..

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The Tribunal, on technicalities rejected his claim for salary, medical expenses and percentage of disability and granted a measly compensation of Rupees one lakh only by a cryptic order. We are, therefore, of the opinion that while the claim for personal injuries may not have survived after the death of the injured unrelated to the accident or injuries, during the pendency of the appeal, but the claims for loss of estate caused was available to and could be pursued by the legal representatives of the deceased in the appeal.

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In Parminder Singh (supra) compensation on the basis of complete loss of income, the percentage of disability, future prospects were granted applying the relevant multiplier. Again, in Kajal (supra) the injured was assessed as 100 per cent disabled, considering all of which compensation was awarded on the notional future prospects along with relevant multiplier. The loss of income to the injured in the facts of the present case has to be assessed at 75%. In view of Raj Kumar (supra) there shall be no deduction towards personal expenses.

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We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased.

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However, the compensation under the head pain and suffering being personal injuries is held to be unsustainable and is disallowed. The High Court has not awarded anything towards medical expenses despite hospitalization for six months being an admitted fact. We therefore award a sum of Rs.1,00,000/ towards medical expenses. Hence, the reassessed total compensation would be Rs.28,42,175/.” XX .. XX

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Accordingly, in the case at hand, the loss of future income cannot be deducted from the count as contended by Mr.Panda for the Insurer and only the amounts granted towards pain and suffering and loss of amenities, i.e. Rs.2,00,000/- in total is

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Page 6 of 7

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liable for deduction. However, keeping in view the admitted fact that no future prospect has been added by the Tribunal while computing for loss of future income, only Rs.1,00,000/- is deducted from the total amount, though this court has refrained from entering the same. So, the L.Rs of the original Claimant, who are present Respondent Nos.1(a) to 1(c), are found entitled for Rs.5,61,527/-, payable along with interest @ 6%.

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In the result, the appeal is disposed of with a direction to the Insurer – Appellant to deposit compensation amount of Rs.5,61,527/- (Five lakhs sixty one thousand five hundred twenty seven) before the tribunal along with interest @6% per annum from the date of filing of the claim application within a period of two months from today; where-after the same shall be disbursed in favour of the claimants on such terms and proportion to be fixed by the Tribunal. However, the penal interest @ 8% as directed by the Tribunal is waived.

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The statutory deposit made by the Appellant with accrued interest thereon be refunded to him on proper application and on production of proof of deposit of the award amount before the learned Tribunal.

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Urgent certified copy of this order be granted on proper application.

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S.Das

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Page 7 of 7

Oriental Insurance Co.Ltd. v. Pradip Ku.Sahu

Case brief

What is this about?

What did the court decide?

Oriental Insurance Co.Ltd. v. Pradip Ku.Sahu

Case brief

What is this about?

What did the court decide?

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