Remanded

Dr.Kishori Dash v. Purushottam Edu. and Welfare

Orissa HC9 Feb 2023MACA/373/2016

Case brief

AI extract

What is this about?

Single judge of the High Court of Orissa allowed the appeal against the Motor Accident Claims Tribunal's award. The court set aside the 50% negligence finding on the auto-rickshaw driver and the whimsical compensation calculation, remanding the matter for fresh quantum assessment.

What did the court decide?

The appeal was allowed; the Tribunal's finding of 50% negligence and the direct award of compensation were set aside; the matter is remanded to the Tribunal to decide the compensation quantum afresh.

Dr.Kishori Dash Vs Purushottam Edu. and Welfare — Medical Negligence | Orissa HC (2023)

¶1

IN THE HIGH COURT OF ORISSA AT CUTTACK MACA No.373 of 2016

¶2

Dr. Kishori Dash

¶3

…. Appellant Mr. P.K. Nayak, Advocate

¶4

-versus-

¶5

…. Purushottam Education & Welfare, Respondents Rourkela and others

¶6

Mr. G.P. Dutta, Advocate for Respondent No.2

¶7

CORAM: JUSTICE B. P. ROUTRAY

ORDER

09.02.2023

Order No.

1. Heard Mr. P.K. Nayak, learned counsel for the Appellantclaimant and Mr. G.P. Dutta, learned counsel for the Respondent No.2-Insurance Company.

¶13

2. Present appeal by the claimant is directed against order dated 9.12.2015 of learned 3^rd M.A.C.T., Rourkela in M.A.C. Case No.148/2009, wherein compensation to the tune of Rs.1,49,500/has been granted along with interest @7% per annum to the claimant from the date of filing of the claim application on account of injury sustained by him in the motor vehicular accident dated 16.1.2009.

¶14

3. The injured-Appellant challenges the award mainly for sharing of negligence on the Auto-rickshaw driver to the extent of 50%. According to Mr. Nayak, the contributory negligence fixed on the driver of the Auto-rickshaw is not justified in absence of any material to that effect.

¶15

Page 1 of 3

¶16

4. Mr. G.P. Dutta, learned counsel for the insurer-Respondent No.2 on the other hand submits that since the accident is a result of front collision between the Auto-rickshaw and the Bus, the negligence has been rightly shared between both the vehicles.

¶17

5. Upon perusal of the impugned judgment, it is seen that the learned Tribunal without proper discussion and without any evidence brought contrary to the claim of the injured-claimant has contributed 50% negligence on the driver of the Auto-rickshaw. It is to be mentioned here that the injured-claimant was a passenger in the Auto-rickshaw at the time of accident. According to her evidence, the accident is the result of negligent driving on the part of the driver of the Bus. The Police upon completion of investigation have also submitted the charge-sheet against the driver of the Bus for offences under Sections 279/337/338, I.P.C. The only witness examined by the insurer (O.P.W.1) is an Officer of the Insurance Company, who is not the eye-witness to the incident. He has not seen the accident. The evidence of the injured, who is the admitted eye-witness of the accident, is fully corroborated by the Police investigation report. As such, the finding of the learned Tribunal to contribute 50% negligence on the driver of the Auto-rickshaw is not found justified and the same is accordingly set aside.

¶18

6. With regard to quantum of compensation, it is the specific case of the claimant that she sustained physical disability to the extent of 70% and in this regard she examined the treating Doctor as P.W.2. But learned Tribunal without analyzing the evidence

¶19

Page 2 of 3

¶20

brought in this regard has whimsically approached to direct for payment of the aforesaid amount of compensation. Law is well settled in the case of Raj Kumar vs. Ajay Kumar and another, (2011) 1 SCC 343 and other subsequent decisions in respect of computation of compensation in a case of physical injury leading to disability. Such approach adopted by the learned Tribunal, which is found improper, is accordingly set aside.

¶21

7. In the result, the matter is remanded back to the Tribunal to decide the quantum of compensation afresh in terms of the settled principles. Parties present before this Court are directed to appear before learned Tribunal on 1^st March, 2023 and the Tribunal shall decide the quantum of compensation in accordance with law afresh after giving opportunity of hearing to the parties. The Tribunal shall decide the case within a period of two months from the date of appearance of the parties.

¶22

8. With aforesaid observations and directions, the appeal is disposed of.

¶23

9. An urgent certified copy of this order be granted on proper application.

¶24

( B.P. Routray) Judge

¶25

B.K. Barik

¶26

Page 3 of 3

Dr.Kishori Dash v. Purushottam Edu. and Welfare

Case brief

What is this about?

What did the court decide?

Dr.Kishori Dash v. Purushottam Edu. and Welfare

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Kabuli @ Agadhu Vs Sun Graite Exports

National Insurance Co.Ltd. Vs Dillip Gaud

M/S.Balaji Agro Goodp Ltd. Vs Lokeswar Bag

Manager Tp Claims,Iffco-Tokio G.I.Co.Ltd Vs Ramamani Pradhan

Nirupama Pradhan Vs Bidyadhar Mandal

Divisional Manager,Oriental Insurance Co.Ltd. Vs Sitaram Panda