Upendra Kumar Padhi vs Rama Krushna Panda & Ors.

A.K. Mohapatra, J. :

This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

By filing the present appeal under Section 173 of the M.V. Act, the Claimant-Appellant has approached this Court with a prayer for enhancement of the compensation amount as has been awarded by the learned Tribunal vide its judgment dated 06.03.2014 in MAC No.52 of 2003 by the District Judge-cum-MACT, Kalahandi, Bhawanipatna. By virtue of the impugned judgment the Claimant-Appellant has been awarded a total compensation amount of Rs.2,08,100/- along with interest @ 7%.

Heard learned counsel for the Appellant-Claimant as well as learned counsel for the Opposite Party No.2-Respondent-Insurance Company. Despite valid service of notice on the Respondent No.1-Owner. None appears on behalf of Respondent No.1-Owner. Perused the appeal memo as well as the grounds taken therein and the impugned judgment dated 06.03.2014.

The factual background leading to the filing of the present appeal, in short, is that on the date of accident, i.e. on 08.11.2000, while the injured-Appellant was coming back from his village Mukhiguda towards Dharamgarh along with his brother in a Scooter bearing Registration No.OR-08-A-4288 as a pillion rider, on the way, the offending motor cycle bearing Registration No.OR-07-C-2287, being driven by its owner-driver Rama Krushna Panda in a rash and negligent manner collided with the scooter of the Petitioner from behind. As a result of such accident at the Claimant-Appellant fell down on road and sustained fracture at shaft femur (right). Thereafter, the injured was shifted to the Dharamgarh Sub-Divisional Hospital and after preliminary treatment he was shifted to the Military Hospital at Gopalpur, admitted there and underwent treatment as an indoor patient. Since the injuries were grievous in nature, the injured was further shifted to Indian Navy Hospital, Chilika for better treatment. It further appears that in course of such treatment, the Appellant caught chronic infection, therefore he was shifted to Command Hospital at Calcutta where he had to undergo a surgery on his injured leg and remained hospitalized from 15.11.2000 to 02.02.2011.

Learned counsel for the Appellant-Claimant at the outset submitted that due to aforesaid injury, the Claimant at the outset submitted who was serving in Indian Army, had to take premature retirement, which is evident from the certificate dated 14.02.2003 and the same has been marked at Ext.15. Referring to the aforesaid certificate, learned counsel for the Appellant contended that such Exhibit clearly reveals that the Petitioner has been discharged from service due to his low medical categorization (permanent disability) E-1); as a case of fracture shaft femur (right) operated. In view of the aforesaid injury, the Petitioner was prematurely retired from army service before completion of his tenure by the time of his premature retirement, the Petitioner had already completed 17 years of service.

On the basis of the aforesaid fact the Claimant-Appellant filed the abovenoted MAC case before the Tribunal claiming compensation for injury and loss sustained in the aforesaid road accident. The learned Tribunal by virtue of the impugned judgment dated 06.03.2014 passed in the abovenoted MAC case has awarded a total sum of Rs.2,08,100/- taking into consideration the different heads of claim as permissible and admissible in law. The present appeal has been filed at the instance of the Appellant-Claimant claiming enhanced compensation, particularly on the ground that the loss of income has not been taken into consideration by the learned Tribunal while delivering the final award.

Learned counsel for the Appellant-Claimant further contended that the Appellant was left with 7 years of army service and at the relevant point of time he was getting salary of Rs.9,227/-. Therefore, had the Appellant not met with an accident and sustained the injury as has been indicated hereinabove, he would have continued in service and would have received his full salary till his retirement.

In the aforesaid context, learned counsel for the Appellant referred to the analysis made by the Tribunal in Para-10 of the judgment while answering issue nos. 4 and 5 and, submitted before this Court that the learned Tribunal has accepted the loss of earning to be @ Rs.227/- per month and, accordingly, a total loss of Rs.2,724/- per annum has been calculated. Taking into consideration the balance period of service of 7 years, a total sum of Rs.19,100/- has been awarded under the head of ‘loss of earning’. While assailing the aforesaid calculation, learned counsel for the Appellant contended that the premature retirement of the Appellant-Claimant from the army service was surely on the ground of the disability sustained by the Petitioner due to the aforesaid accident. Such fact is evident from the certificate at Ext.15 before the learned Tribunal. He further contended that the learned Tribunal has not taken note of aforesaid certificate (Ext.15) while calculating the loss of income of the Appellant. In such view of the matter, learned counsel for the Appellant-Claimant contended before this Court that the calculation made by the Tribunal with regard to loss of future earning of the Appellant is erroneous and that the same calls for interference by this Court in the present appeal.

Learned counsel appearing for the Appellant-Insurance Company, on the other hand, supported the judgment of the learned Tribunal wholeheartedly contended that the learned Tribunal, while assessing the compensation amount, has rightly calculated the loss of earning of the Petitioner. He further submitted that the Petitioner was getting a salary of Rs.9,227/-. It was also contended that after retirement from service, the Petitioner was getting Rs.9,000/- as pension, therefore there is a difference of Rs.227/- in the earning of the Appellant. Accordingly, the learned Tribunal has taken the aforesaid figure of Rs.227/- per month and has awarded a sum of Rs.19,100/- as the total of loss of earning for the Appellant. In such view of the matter, learned counsel for the Appellant-Insurance Company contended that the learned Tribunal has not committed any illegality. Therefore, the impugned award does not call for any interference by this Court in the present appeal.

Having heard the learned counsel appearing for the respective Parties, on a careful examination of the background facts as well as the documents on record, further on a close scrutiny of the impugned award dated 09.03.2024, this Court found that the Appellant-Claimant has approached this Court by filing the present appeal with a prayer for enhancement of the compensation amount. On a careful analysis of the submissions made by the Parties, this Court found that the Appellant-Claimant claims for enhancement of the quantum of compensation on the ground of erroneous determination age loss of earning. In the aforesaid context, the learned counsel for the Appellant referred to the Ext.15, the certificate issued by the competent authority in Indian Army, and stated that such certificate reveals that the Petitioner has been given retirement from service prematurely as he had acquired such disability directly relating to the fractured shaft femur (right), for which the Appellant had undergone a surgery and such injury is relatable to the injury caused directly as a result of the motor accident, which is the subject matter of the present appeal.

Moreover, while calculating the loss of earning, the learned Tribunal has deducted a sum of Rs.9,000/- towards pensionary benefit payable to the claimant after his retirement. However, no evidence was led by the Respondent-Insurance Company with regard to the pensionary benefit as is due and admissible to the Appellant-Claimant or whether any such pensionary benefit is being received by the Appellant. When it has been accepted that the Appellant-Claimant was getting a salary of Rs.9,227/- per month, the pension could not have been Rs.9,000/- as has been accepted by the Tribunal. This this Court is of the prima facie view that the Tribunal has committed an error while assessing the income of the Appellant.

Therefore, by applying the general principle with regard to grant of pensionary benefits, this Court is of the view that at best the Petitioner would have received 50% of his last salary drawn as pensionary benefits. Thus, there is a loss of 50% of the monthly salary of the Petitioner for a period of seven years. It is not disputed that the injury sustained by the Appellant, which was the sole reason for which he was prematurely retired from the Indian army, is directly attributable to the present motor accident. Hence, this Court is of the considered view that the Tribunal has committed an illegality to the aforesaid extent by not taking into consideration the loss of earning capacity @ 50% of the salary the Appellant was receiving at the time of the accident. Accordingly, this Court holds that the Claimant-Appellant is entitled to a further enhancement of Rs.2250x12x7 years, in total amounting to Rs.5,66,000-Rs.19,100 already awarded by the Tribunal. Thus, the Claimant-Appellant is entitled to enhance compensation of Rs.5,47,900/- towards loss of future earnings. Accordingly, it is held that the Respondent-Insurance Company is liable to pay a further consolidated sum of Rs.5,47,900/- to the claimants in addition to the compensation already awarded by the learned Tribunal.

At this juncture, both counsels agreed that a further consolidated amount rounded to Rs.5,00,000/- shall be acceptable to both the Claimant-Appellant as well as the insurer. Since the learned Tribunal has awarded interest @ 7% per annum from the date of filing of the claim application, i.e. on 23.06.2003, the Respondent-Insurance Company shall pay a further consolidated amount of Rs.50,000/- towards interest which is not disputed by the Claimant-Appellant. Accordingly, the Respondent-Insurance Company is directed to deposit a further consolidated sum of Rs.5,50,000/-. Let the amount be deposited with the learned Tribunal within eight weeks from today by the insurer Respondents. Thereafter the same shall be disbursed by the Tribunal in favour of the Claimant in terms of the impugned judgment.

Accordingly, the MACA stands disposed of.