MACA Nos.411 & 399 of 2025

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IN THE HIGH COURT OF ORISSA AT CUTTACK

MACA Nos.411 & 399 of 2025

(In the matter of application under Section 173(1) of

the Motor Vehicles Act, 1988).

MACA No.411 of 2025

M/s. Bajaj Allianz General

Insurance Co. Ltd., BBSR

… Appellant

Mr. A.Dash, Advocate

-versus-

Akshaya Kumar Sahoo &

Another

… Respondents

Mr. K.Das, Advocate for claimant

Mr.K.K.Jena, Advocate for

offending vehicle

MACA No.399 of 2025

Akshaya Kumar Sahoo

… Appellant

Mr. K.Das, Advocate

-versus-

Kanhu Charan Sahoo & Another … Respondents

Mr. A.Dash, Advocate for insurer

Mr.K.K.Jena, Advocate for

offending vehicle

CORAM:

JUSTICE G. SATAPATHY

DATE OF HEARING : 12.05.2026

DATE OF JUDGMENT: 15.05.2026

G. Satapathy, J.

1. These two appeals U/S. 173(1) of the

Motor Vehicles Act, 1988 (in short, the “Act”), assail

the impugned judgment dated 17.01.2025 passed in

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MAC Case No.697 of 2016 by which the learned 3

rd

Motor Accident Claim Tribunal, Cuttack (in short, “the

Tribunal”) directed M/s. Bajaj Allianz General

Insurance Company Ltd. (in short, “the insurer”) to

pay a sum of Rs.20,70,271/- only to one Akshaya

Kumar Sahoo (in short, “the claimant”) for the

injuries sustained by him in a motor vehicular

accident.

The aforesaid award carries further simple

interest @ 7% per annum w.e.f. date of filing of

application i.e. 20.10.2016 till its realization and the

insurer was directed to pay the compensation within

two months of passing of the aforesaid award, failing

which to pay penal interest @ 12% per annum.

2. Briefly stated, the claimant was working

as a helper in the Truck bearing Regd. No. OD-07-A-

8393(hereinafter referred to as the “offending

vehicle”) and on 09.04.2016 at about 12.30PM, the

offending Truck met with an accident by dashing

another Truck from behind, as a result the claimant

sustained multiple compound fractures on his left leg

MACA Nos.411 & 399 of 2025

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femur, left lower limb, fracture of left ankle joint and

grievous wounds on left leg, severe head injury and

facial injuries together with multiple injuries all over

his body. According to the claimant, the accident

occurred due to rash and negligent driving of the

driver of the offending Truck and he was treated at

different hospitals at Berhampur and Bhubaneswar for

the injuries sustained by him and despite treatment,

he became permanent disabled and lost his total

earning capacity and the accident was reported to

Rambha Police, resulting in registration of Rambha PS

Case No. 44 of 2016 which culminated in submission

of charge sheet. On the aforesaid averments, the

claimant approached the Tribunal U/S. 166 of the Act

for grant of compensation of Rs.33,50,000/- by

impleading the owner and insurer of the offending

vehicle.

2.1 In response to the claim, the owner of the

offending Truck appeared and filed his written

statement admitting the accident, but questioning its

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maintainability against him. The owner of the

offending Truck also admitted the salary of the

claimant @ Rs.12,000/- per month and inter alia

further pleaded that since the vehicle was duly insured

with all vehicular documents, the insurer is

contractually liable to indemnify him against the award

passed in this claim.

2.2. On the other hand, the insurer

appeared and contested the claim by filing its written

statement denying its liability to pay compensation to

the claimant and inter alia averring the claim to be not

maintainable by praying to dismiss the claim.

3. On the rival pleadings of the parties,

the learned Tribunal struck with five issues and

allowed the parties to lead evidence. Accordingly, the

claimant examined himself as PW1 and proved police

paper, discharge certificate, his disability certificate

and other medical documents under Exts. 1 to 10

together with identifying five X-ray plates under MO-I

to MO-V as against no evidence whatsoever by the

MACA Nos.411 & 399 of 2025

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insurer, but the owner of the offending vehicle

examined himself as OPW1. After appreciating the

evidence upon hearing the parties, the learned

Tribunal by the impugned judgment granted

compensation to the claimant indicated supra. Being

aggrieved with the impugned judgment, the claimant

and insurer have filed two separate appeals

challenging the quantum of compensation.

4. Heard, Mr.Anupam Dash, learned

counsel for the insurer and Mr.Karunakar Das, learned

counsel for the claimant. Besides, Mr.Khitish Kumar

Jena, learned counsel for the owner of the offending

vehicle had concluded his argument on 06.02.2026,

but he was not present when the matter was heard

finally on 12.05.2026. In addition, the insurer and

claimant have filed their short written notes of

submissions in support of their claim.

5. After having considered the rival

submissions upon perusal of record, both the insurer

and claimant challenge the quantum of compensation

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mainly on the ground of extent of disability. The

insurer has urged to take the disability of the claimant

either at 15% or at best 30% for calculating loss of

future earnings, whereas the claimant has urged to

take the disability at 100% for computing loss of

future earnings. In addition, the claimant also

seriously challenges the finding of the learned Tribunal

with regard to assessment of his income at Rs.7,000/-

instead of Rs.12,000/- per month. It, therefore, clear

that these two appeals primarily urges this Court to

reevaluate the income and disability of the claimant

for computing loss of future earnings. On coming to

the challenge of the claimant as to determination of

his income, this Court does not find any difficulty to

ascertain as to how the learned tribunal assessed the

monthly income of the claimant which is in fact

assessed at paragraph no.11.4 of the impugned

judgment and it is found therein that the income of

the claimant is assessed notionally at Rs.7000/- per

month, but the owner of the truck in which the

claimant was stated to be working as helper, not only

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in his written statement pleads, but also in his

evidence testified before the tribunal that the claimant

was the helper of the truck at the relevant time of the

accident and he being the employer was paying

Rs.12,000/- per month to him and fooding allowance

@ 50 per day, but no documentary evidence could be

produced by the claimant to evidence his monthly

income at Rs.12,000/- per month, however, if the

minimum wage for the year 2016 is taken into

consideration and the fooding allowance to the

claimant as stated by the OPW.1 is added on the face

of absence of any concrete evidence, the notional

income of the claimant as taken by the learned

tribunal at Rs.7,000/- per month appears to be correct

one and needs no interference.

6. In a case of injuries, the disability of the

injured plays a significant role in assessing/computing

the compensation for such injured of motor vehicular

accident, however, the law laid down by the Apex

Court in Raj Kumar vrs. Ajay Kumar; (2011) 1 SCC

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343, makes it very clear that all injuries or permanent

disability arising from the injury/injuries do not always

result in loss of earning capacity and the percentage of

permanent disability with reference to the whole body

of a person cannot be assumed to be the percentage

of loss of earning capacity of said person except in few

cases where the evidence justifies the same and the

same permanent disability may result in different

percentage of loss of earning capacity in different

person depending upon the nature of profession,

occupation or job, age, education and other factors. It

is also stated with certainty that ascertainment of loss

of earning capacity by analyzing the permanent

disability is a complex issue and requires evidence in

this regard, but the evidence of expert in such cases

would be very useful. It is plain and simple that the

same extent of permanent disability in different

persons may result different loss of earning capacity.

Thus, it is very much essential or required to be

ascertained what activity/activities the claimant could

not carry out due to the permanent disability and what

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activity he can still perform despite the permanent

disability and thereafter, applying the same to the

avocation/profession or nature of work performed by

the injured before the accident, it is to be determined

whether the claimant is totally disabled from earning

any kind of livelihood or whether in spite of permanent

disability, the claimant could still effectively carry out

some activities and functions, which he was earlier

carrying on or whether he was prevented or restricted

from discharging his previous activities and function,

but could still carry out some other lesser work or

activities or function so that he can continue to earn

his livelihood by other profession. Besides, it is to be

determined that the permanent disability is with

regard to the whole of body or with reference to any

specific/particular limb or part of body affecting his

physical function of the entire body which is

considered as functional disability and as to how such

functional disability has affected his earning.

MACA Nos.411 & 399 of 2025

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7. Moving to the case at hand, it

appears that the claimant has not examined any

doctor to state that as to how the permanent disability

affects his functioning or as to how it has resulted in

his inability to perform his physical work nor is there

any evidence as how the disability of the claimant has

restricted or affected his functioning. It is not in

dispute that the claimant has been issued with a

disability certificate under Ext.8 which reveals 60% of

permanent disability in relation to both leg of the

claimant, but it is not the same disability with

reference to the whole of the body and it has not

clarified in evidence as to the extent of disability of the

whole body of the claimant. On the other hand,

discharge summary certificate issued to the claimant

under Ext.7 reveals that the claimant was diagnosed

with “Polytrauma with fracture femur with fracture

trochanter left lower limb; grade IIIB compound

fracture, fracture and left Talonaviular joint”. Further

the discharge summery also reveals that the claimant

had undergone surgery followed by plastic surgery and

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he was treated as indoor patient w.e.f.09.04.2016 till

20.06.2016, but the disability certificate of the

claimant discloses him to have been diagnosed for

“Post Traumatic stiffness of left knee”. Further, it could

not be disputed that the claimant was working as a

helper in the truck and he had come to the tribunal to

testify in this case, although he claims to be confined

to bed and unable to move and could not be able to

keep his left foot on the ground due to severe stiffness

on right leg muscle. Be that at it may, the evidence of

the claimant does not clarify as to how he is not able

to perform his daily work or his profession as a helper.

No doubt the claimant claims himself to be cent

percent disabled, but the tribunal has only assessed

the compensation by taking the disability of the

claimant at 60% without analyzing or opining that

such disability of the claimant is his functional

disability and such functional disability is the same

extent of disability for loss of earnings capacity.

MACA Nos.411 & 399 of 2025

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8. The insurer on the other hand has relied

upon the decision in Aliveli Mallareddy Vrs.

Surthani Linganna @ Chinna Linganna & Others

in Civil Appeal No.--- of 2025 (Arising out of

SLP(C)No.19636 of 2024) disposed of on 07.04.2025,

wherein the Apex Court in para 10 has held thus:-

“10. Xx xx xx. xx the Almanco Manual would

suggest that the disability when not assessed to

the whole body, the disability to the lower limb will

be 1/5 and upper limb be ¼ of the disability

assessed”.

Similarly, the decision as relied on by the

insurer in Uttar Pradesh Road Transport

Corporation Vrs. Vibhor Fialok & Another in Civil

Appeal No(s).1337-1338 of 2019 [Arising out of

SLP(C) Nos.2738-2739 of 2019], the Apex Court in

Paragraph 13 has held as under:-

“13. Xx xx xx. Thus, this court will have to

undertake the exercise of assessing the whole

body disability and as per almanco manual, the

whole body disability when compared to the

particular limb disability would be 1/4

th

in respect

of that of the lower limb. xx xx xx xx”.

9. By relying the aforesaid two

decisions, the insurer claims that the extent of

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claimant’s disability under Ext.8 is not the exact extent

of the disability of the claimant for loss of earnings and

the claimant’s disability for loss of earnings can at best

be taken at 30% of the whole body, but the claimant

in the relied on case in Aliveli Mallareddy (supra)

stated to have sustained fracture of patella and right

temporal bone; whereas the claimant in Vibhor

Fialok(supra) had sustained open grade III, B/L

femur condoyle with fracture SOF with fracture

proximal fibula with ciley Pest (RT) side and other

multiple injuries, however, the claimant herein had

sustained fracture of femur with fracture of trochanter

left lower limb; grade IIIB compound fracture, fracture

and left Talonaviular joint and therefore, the claimant

in relied on case cannot be equated with the claimant

of the present case inasmuch as the fracture of

trochanter is a facture involving the thigh bone, which

would definitely affect the functioning of a person like

the claimant-appellant in this case who was working as

a helper in the truck and taking into account the

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avocation of the appellant-claimant and other factors

into consideration, this Court is of the considered view

that the disability of the claimant of both legs can be

taken as the same disability for the whole of body

since with the fracture of trochanter and other

compound fracture and fixation of nail/implant as

revealed from the discharge summery under Ext.7, the

claimant cannot certainly perform his earlier avocation

of helper in the truck, but he still can do some work

and therefore taking his functional disability at 60%,

this Court in the peculiar facts and evidence on record

takes the disability of the claimant at 50% for

computing loss of future earnings.

10. In ascertaining the loss of future earnings,

this Court has already concurred the finding of learned

tribunal that the claimant was notionally earnings at

Rs.7000/- per month and thereby, his net annual

income would be Rs.84,000/-, but since the appellant

was below 40 years and a self-employed, 40% to the

aforesaid amount is to be added towards future

prospects and therefore, net annual income of the

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claimant would be calculated at Rs.1,17,600/-

(Rs.84,000/- + Rs. 33,600/- which is 40% of

Rs.84,000/-) and applying 15 multiplier to it, the net

loss of future earnings of the claimant would be

calculated at Rs.1,17,600/- X 15 X 50%=

Rs.8,82,000/-.

11. No doubt, the learned tribunal has

awarded a sum of Rs.1,00,000/- towards future

medical treatment, but taking into account the present

day market index and the cost of medical treatment,

this Court considers that the appellant is entitled to

Rs.3,00,000/- towards future treatment. For the sum

as awarded by the learned tribunal towards

Transportation & Special Diet to the claimant at

Rs.1,00,000/-, it appears to be genuine one so also

the expenses relating to the treatment, hospitalization

at Rs.2,83,871/- inasmuch as, even though the

claimant has claimed Rs.8,00,000/- towards his

treatment, but has not able to produce any document

to that effect, whereas he could able to produce

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evidence with regard to incurring expenditure for

Rs.2,83,871.62/- vide Ext.10-series. The learned

tribunal has awarded a sum of Rs.28,000/- towards

attendant charges for the period of treatment and

hospitalization of the claimant and in the

circumstances, the same amount appears to be

genuine and correct one. In view of the discussion

made hereinabove and taking into account the sum

totality of the evidence on record, this Court considers

that the claimant is entitled to compensation in the

following scale as enlisted under:-

Sl No. Heads Amount

(i) Expenses relating to

treatment, hospitalization

Rs.2,83,871/-

(ii) Transportation & special

diet

Rs.1,00,000/-

(iii) Attendant charges for the

Period of hospitalization

Rs.28,000/-

(iv) Loss of future earning Rs.8,82,000/-

(v) Pain, suffering loss of

amenities

Rs.5,00,000/-

(vii) Future medical treatment Rs.3,00,000/-

Total Compensation Rs.20,93,871/-

Further, the imposition of penal interest @

12% per annum being not in consonance with the law

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is required to be set aside and is accordingly set aside.

12. In the result, these two appeals are

accordingly disposed of and the impugned judgment is

modified to the extent indicated above with direction to

the insurer to pay a sum of Rs.20,93,871/- (Rupees

Twenty lakh ninety-three thousand eight hundred

seventy-one) only together with interest @ 7% per

annum w.e.f. the date of filing of the claim i.e. from

20.10.2016 till its actual realization within eight weeks

hence. On deposit of the modified compensation

amount, the same shall be disbursed to the claimants

proportionately in terms of the award passed by the

learned tribunal and the security deposit together with

accrued interest thereon be refunded back to the

insurance company on proper proof of deposit of the

modified compensation amount before the tribunal.

(G. Satapathy)

Judge

Orissa High Court, Cuttack,

Dated the 15th day of May, 2026/Jayakrushna