ORIENTAL INSURANCE COMPANY LTD Vs. KISHORE CHANDRA SAHU

JUDGEMENT

(1.) JUDGMENT of learned Single Judge in Misc. Appeal No. 140 of 1993 holding that the insurer cannot be permitted to question the quantum awarded on adjudication of a claim lodged under the Motor Vehicles Act. 1939 (in short, the 'old Act') or the Motor Vehicles Act, 1988 (In short, the 'Act') forms subject -matter of challenge in this Letters Patent Appeal. Additionally. the quantum awarded by Second Motor Accidents Claims Tribunal. Cuttack (in short. ' Tribunal') and maintained by learned Single Judge is challenged. As the dispute mainly relates to the question of maintainability, essentially a question of law, detailed reference to the factual aspects is necessary. Adjudicating a claim lodged by Kishore Chandra Sahu (hereinafter referred to as 'claimant') compensation was awarded by Tribunal for a sum of Rs. 1,20.000/ - for the injuries sustained by him in an automobile accident on 16 -4 -1991. Claimant claimed that he was a passenger in the bus bearing registration No. OSC 2157 and was proceeding from Sambalpur to Kirmira. Due to rash and negligent driving of the bus in question it dashed against a culvert and capsized in the paddy fields. As a result of the accident the , claimant sustained grievous injuries on his person, namely, fracture of his left humerus and in spite of prolonged and expensive treatment, he lost use of his left hand as there was wastage of muscles and loss of sensation. The wound was not healed, and though he is continuing in service, all his future prospects have been affected. He is not able to ride bicycle, and to carry on the part -time job of a typist which was earlier providing him an additional source of income. He claimed compensation of Rs. 2 lakhs.

(2.) THE claim was resisted by he insurer end the owner. On appropriation of evidence, Tribunal awarded compensation of Rs. 1,20,000/ -. It was directed that the liability was to be indemnified by the Oriental insurance Co. Ltd., (in short, 'the insurer'/, the appellant in this appeal. The break up of the amount awarded was as follows: Physical pain and suffering - Rs. 20,000/ -Medical treatment - Rs. 50,000/ -Financial loss due to loss of pay anddisability of left hand and mentalagony due to invalidness of lefthand -Rs. 50,000/ -. In the appeal before the learned Single Judge, the award of Rs. 50,000/ - on account of financial loss due to loss of pay, disability of left hand and mental agony was assailed,, It was pointed out that a sum of Rs. 20,000/ - was awarded towards physical pain and suffering which amounted to duplication of award. Before the learned Single Judge, it was urged by the claimant that in an appeal by the insurer right available to it to challenge the award is limited in terms of Section 96 of the old Act. Reliance was placed on a Full Bench decision of this Court in National Insurance Company Ltd. v. Magikhia Das : 1976 ACJ 1 239, wherein it was held that the insurance company can defend the action only en the ground specified in Section 96(2) of the old Act. The learned Single Judge felt that though the decision of a Division Bench of this Court in Oriental insurance Company Co, Ltd. v. Haripriya Naik and Ors. 1994 (I) OLR 88 supported the stand of the insurer that an appeal relating to quantum can be maintained by it, in view of full Bench decision of this Court in Magikhia Das's case (supra), the plea was not acceptable. It was observed by the learned Judge that Magikhia's case (supra) was not noticed by the Division Bench. Learned counsel for the insurer submitted that Magikhia's case (supra) does not stand on the way of considering the question whether the award is just. The learned counsel for claimant supported the impugned judgment.

(3.) Magikhia's case (supra) had its root in British India General Insurance Co. Ltd. v. Captain Itbar Singh 1958 -65 ACJ 1 (SC). The question is whether the Court is helpless when it finds in the appeal that the award is unconscionable, yet insurer is the appellant and the quantum is in issue ? Our answer to the question is an emphatic 'no'. Court cannot remain a mute spectator when the course of justice is deflected by latent collusion, a shadow -boxing it cannot stand in the side Tines watching helplessly the games played by the parties which put off a show of contest while really shaking hands of friendship aimed at making a fortune out of a misfortune. That itself is collusion, .. There may be cases where the Tribunal itself acts without application of mind. We may illustrate it. With a simple scratch on the claimant's hand a claim of Rs, 1 ; crore is laid. The owner contends'or puts off a show of contest. The Tribunal awards Rs. 1 crore. o Can the insurer's appeal be thrown out on the ground that it cannot question correctness of the quantum. It would be travesty of justice. The award cannot be termed 'just', if it has no . basis or foundation. The expression which appears to .it to be 'just' appearing in Section 110 -B of the old Act 'corresponding to Section 108 of the Act clearly shows that a wide discretion is conferred. Notwithstanding the wide amplitude of such discretion, the determination cannot be arbitrary and must be based on certain data establishing reasonable nexus between the loss incurred and the compensation to be awarded. The Tribunal is obligated statutorily to make an award which appears to be just', The Tribunal is required to give reasonings as to why it feels the award to be just. The same is not beyond the pale of judiciary scrutiny. The Legislature thought it wise to use the expression 'just'. The same is not without a purpose. It is an extremely difficult task to assess the compensation. The amount of compensation has to be determined on two ground of justness. 5. A distinction has to be made between a compensation which at one hand is not to be punitive nor on the other a source of profit in whose favour it is awarded, and it should not be windfall to make fortune out of a misfortune. Captain Itbar Singh's case (supra) on which reliance is placed to rule put the appeal by the insurer on the question of quantum is clearly distinguishable on facts. That was a case where it was not decided anything about the appellate powers. The only question in that case was whether the insurer can take pleas in defence other than those mentioned in Section 96 (2) of the old Act. In case a view is taken that the Insurer would not be able to assail the quantum, the quantum fixed by the Tribunal though unreasonable and arbitrary would become final.. 1 he appeal which is wide in its scope would be limited in its scope which; cannot be the intention of the Legislature. Appeal is a continuation of the original proceeding. Considering certain statutes providing for 'just compensation' for taking a property, It has been held that the same means a full and perfect equivalent. In ascertains the quantum it has to be noted that the noun 'compensation' standing by itself carries the idea of an equivalent, so that if the adjective 'just' had been animated, the natural import of the language would be that the compensation should provide some equivalence. Use of the expression 'just' emphasises the intention. The word 'just' has various meanings, but the context in which it is used throws light on its seal import. In the context of its user in the old Act and the Act, it means rightful, legitimate, well -bunded. 'Just' in the contaxt it is used would mean guided by truth, reason, justice, fairness, given or awarded rightly. it must have legitimacy. The expression is made of jus (law, right) and tus (adj., suffix).