The Manager Legal, M/S. Icici Lombard G.I.Co. Ltd. Vs Manguli Jena

Basubandhu Das and others … Respondents For Appellant in MACA No. : Mr. G.P. Dutta, Adv. 108 of 2022 & Respondents in MACA No. 528 of 2022

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For Appellant in MACA No. : Mr. K. Das, Adv. 528 of 2022 & Respondents in MACA No. 108 of 2022

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CORAM:

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JUSTICE G. SATAPATHY

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DATE OF HEARING & JUDGMENT:18.12.2024

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G. Satapathy, J.

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1. These two appeals, one by the claimant and

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the other one by the Insurer are directed against the

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same impugned judgment dated 11.10.2021 passed

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MACA Nos.108 & 528 of 2022

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Page 1 of 10

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by learned First Motor Accident Claim Tribunal, Cuttack (hereinafter referred to as “the Tribunal” for brevity) awarding a sum of Rs. 15,32,230/- along with simple interest @ 6 % per annum w.e.f 05.05.2016 to the claimant with further stipulation of penal interest @ 12 % per annum, if the award is not satisfied by the insurer within two months from the date of passing of this award.

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2. The undisputed facts as falls for consideration in these appeals are that on 18.11.2012 at about 5:30PM, one Manguli Jena (hereinafter referred to as “the claimant”) while proceeding in the offending Truck as a helper with the driver driving it in a rash and negligent manner, the offending truck dashed against a roadside parked vehicle resulting in serious injury to the claimant. On this accident, an FIR was drawn up in Jenapur PS Case No. 136 of 2012 and the injured-claimant was shifted to the Hospital for better treatment. The aforesaid PS case was culminated in submission of charge sheet against the driver of the offending vehicle for offence U/Ss. 279/337/338 of IPC

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MACA Nos.108 & 528 of 2022

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Page 2 of 10

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in terms of Ext. 2(final form). In the course of the investigation, injury report under Ext. 9 was collected by the Investigating Officer.

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On this accident, the claimant moved an application before the Tribunal by impleading the owner and insurer of the offending truck claiming certain compensation and such claim was registered as MAC Case No. 318 of 2016 in which the owner of the offending vehicle did not participate, but the insurer contested the claim by filing its written statement denying all the allegations and its liability, in addition to advancing an alternative plea of contributory negligence by the driver of the vehicle. However, the tribunal allowed the parties to adduce evidence and after evidence being closed from both the sides, the learned Tribunal on analysis of evidence and pleadings of the parties passed the impugned award directing the insurer to pay the compensation amount indicated in the previous paragraph to the claimant in the manner as provided in the operative part of the impugned judgment.

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MACA Nos.108 & 528 of 2022

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Page 3 of 10

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3 . Being aggrieved with the aforesaid impugned order, the insurer preferred an appeal in MACA No. 108 of 2022, but the claimant preferred an appeal in MACA No. 528 of 2022 for enhancement of compensation.

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4. Heard, Mr. G.P. Dutta, learned counsel for the Insurer and Mr. Karunakar Das, learned counsel for the Claimant in the matter, but none appears for the owner in both these appeals. Both the parties reiterated their stand as taken in the memorandum appeal and assailed the impugned award.

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5. After having considered the rival submissions upon perusal of record, the impugned order is to be re-examined in the light of rival submission. At the outset, it is not in dispute that the claimant has suffered injury in a motor accident, but the only thing is to be seen as to whether the insurer is liable to pay the compensation amount to the claimant. In addressing the issues in these appeals, it appears that the undisputed evidence as available in the claim is the Police papers of the accident case which were

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MACA Nos.108 & 528 of 2022

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Page 4 of 10

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produced before the tribunal and exhibited under Exts. 1 to 9 which goes to show the claim of the claimant for

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accident having been taken place on account of rash and negligent driving of the driver of the offending truck. It is, of course, valiantly attempted by the insurer to contradict such fact by putting suggestion to the witnesses that the accident did not occur on account of rash and negligent driving of the offending truck, but such valiant attempt was ended in vain since not only the police papers, but also the oral evidence clearly established that the accident had taken place on account of rash and negligent driving of the driver of the offending vehicle and that too, no evidence has been adduced by the insurer to dispute the factum of accident. It is, therefore, clear that the accident having been taken place on account of rash and negligent driving of the driver of the offending vehicle, the claim is squarely maintainable U/S. 166 of the Motor Vehicle Act, 1988 (In short the “MV Act”).

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6. Now the next question crops up for discussion

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is the assessment of quantum of compensation since

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MACA Nos.108 & 528 of 2022

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Page 5 of 10

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the quantum of the compensation has been seriously disputed not only by the claimant, but also by the insurer in these appeals. In quantifying the compensation, the age of the claimant is also an important factor to be considered, however, it is highlighted by the insurer that as per the own admission of the claimant, his age was 56 years at the relevant time, but the learned tribunal has placed reliance on the entry made in the Disability Certificate under Ext. 13 to hold that the claimant was aged about 54 years at the relevant time of the occurrence. It is, however, true that some time the claimant gives prevaricating statement regarding age, but unless the evidence as found in the official document is demolished, it would not be proper to consider that the age of the claimant to be higher than what has been mentioned in the official document because rustic villager do tempt to speak casually about their age. In this case, even if the contention of the insurer is taken into consideration, there would be hardly any differences inasmuch as the admission of the claimant

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MACA Nos.108 & 528 of 2022

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Page 6 of 10

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is that his age was 56 years at the time of accident, but the official document shows that his age was 54 years then and it would hardly make any difference in quantifying compensation and thereby, the tribunal has rightly taken the age of the claimant at 54 years at the relevant time of accident.

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7. Further, quantifying compensation in an injury case, the disability of the claimant plays a predominant role and it is the case of the claimant that his functional disability could have been taken at 100%, instead of 85% as taken by the learned tribunal, but fact remains that while assessing the disability, the Court has to take into account the various factors, such as profession of the claimant and the nature of disability sustained by him/her and how such disability has affected the profession and income of the claimant. In the present claim, the claimant was working as a helper in a truck and he may not continue his avocation as a helper in the truck due to disability, but the claimant can still lead a life by fixing an artificial limb and can contribute for his own

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MACA Nos.108 & 528 of 2022

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Page 7 of 10

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income. Further, after making a detailed analysis of evidence on record upon relying a catena of decisions including the decision in Raj Kumar Vrs. Ajaya

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Kumar and another; 2011 (I) T.A.C. 785 SC , the learned tribunal has assessed the disability of the claimant at 85% which in the circumstance appears to be correct and does not call for any interference. So

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far the income and avocation of the claimant are concerned, the same has not been seriously disputed by the parties and, therefore, the following calculation has been made by the tribunal in awarding

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compensation to the claimant:-

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Loss of future income : Rs. 8,02,230.00

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Attendant’s cost, transportation charges, fooding & nourishment : Rs. 80,000.00

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Medical Expenditure incurred : Rs. 1,50,000.00 during treatment Future Medical Expenses & Plantation of artificial limb during the rest part of his life :Rs. 3,00,000.00 Mental agony, pain and suffering and loss of amenities & Pleasure of life : Rs. 2,00,000.00 Total compensation : Rs. 15,32,230.00

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MACA Nos.108 & 528 of 2022

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Page 8 of 10

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8. It is, therefore, clear that the learned tribunal has rightly assessed the income of the injuredclaimant and compensation awardable to the claimant and, therefore, there is hardly any ground to interfere with the impugned award as recorded by the learned tribunal, however, in the operative part of the award, the learned tribunal has imposed penal interest @ 12% per annum which is impermissible in the eye of law since Sec. 171 of MV Act provides for imposition of only simple interest and therefore, such finding of the learned tribunal is required to set aside. Accordingly, the impugned award is modified to that extent by setting aside the penal interest, but it is made clear that the insurer is liable to pay simple interest @ 6 % per annum w.e.f 05.05.2016 till realization of the claim amount as ordered by the tribunal.

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9. In the result, the Appeals being unmerited are hereby dismissed with modification of the setting aside the penal interest @ 12%, but in the circumstance, no order as to costs. The tribunal shall not proceed with

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MACA Nos.108 & 528 of 2022

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Page 9 of 10

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the execution of the award for two months from the

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date of production of copy of this order.

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It is made clear that the statutory deposit be refunded back to the appellant-insurer on proof of deposit of the modified compensation amount within 60 days hence before the tribunal, who shall disburse the same in the manner as ordered by it in the impugned judgment.

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(G. Satapathy) Judge

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Orissa High Court, Cuttack, Dated the 18^th day of December, 2024/Priyajit

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Signature Not Verified

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Digitally Signed Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 20-Dec-2024 15:58:34

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MACA Nos.108 & 528 of 2022

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Page 10 of 10

The Manager Legal, M/S. Icici Lombard G.I.Co. Ltd. v. Manguli Jena

Case brief

What is this about?

What did the court decide?

The Manager Legal, M/S. Icici Lombard G.I.Co. Ltd. v. Manguli Jena

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

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