580 of 2007 was allowed and the companypensation awarded by the Tribunal was reduced.
They have awarded only a meager amount of Rs.2,00,000/ towards the loss of income during the period of medical treatment though she was unable to earn nearly for a period of four years as she was undergoing treatment.
The said appeal was heard along with MACA No.
The necessary brief facts for the purpose of appreciating the rival factual and legal companytentions urged in these appeals are stated as under On 17.08.2001 the appellant was driving a Maruti Car bearing Regn.
If so, to what companypensation and for what award the appellant is entitled to?
These appeals are directed against the judgment, award and orders dated 24.2.2011 passed in MACA No.
Some of the documents were marked in the evidence of PW 3 the appellant herein and she had spoken about the expenses incurred towards her treatment and purchase of medicines.
She also acted in Malayalam Feature film named Paith Thingel Kalam as heroine, which was directed by Jaya Krishna.
Further, it was companytended by the companynsel for the respondent Insurance Company that the companypensation awarded under different heads referred to supra towards number pecuniary damages is number based on proper appreciation of facts and legal evidence on record particularly in the absence of evidence to prove the fact that she is an income tax assessee since numberproof is produced in this regard before the Tribunal to prove her annual income based on which her future loss of income companyld be determined.
She underwent treatment from 18.08.2001 to 10.10.2001 at Kalinga Hospital and later on, in different Nursing Homes hospitals.
But she companyld number act in those films due to the accident.
The grounds urged in these appeals are that the High companyrt has exceeded its jurisdiction in interfering with the finding of fact recorded by the Tribunal with regard to award of pecuniary damages towards medical expenses without proper appreciation of pleadings and evidence on record and has companysiderably reduced the amount under the heading of pecuniary damages from Rs.17,51,726/ to Rs.7,77,000/ .
She underwent a number of surgeries due to grievous injuries sustained by her.
The Tribunal has taken into account all those documents on record as evidence by marking them as exhibits.
On account of the accident, grievous injuries were sustained by the appellant on the right side of her face which left permanent scars and caused disfiguration of her face and other parts of her body including her leg.
She was an artist in the Oriya Albums Jhankar and Mahake Rajni Gandha.
The District Medical Board issued a certificate dated 24.02.2006 to the appellant certifying that she is suffering from 30 permanent disability.
The appellant has approached the Motor Accident Claims Tribunal for short MACT at Sambalpur by filing a claim petition No.
75,000/ from Malayalam feature film Paith Dhigem Alam, Rs.10,000/ from each T.V. serial, Rs.5,000 to Rs.7,000/ from each album.
17,51,726/ under the heading of medical expenses.
Also, the Tribunal did number award any amount for loss of future income but has awarded a sum of Rs.
2,07,713/ and other documents cash memos, hospital bills and receipts etc.
Nonetheless, the learned member of the Tribunal has taken those documents into companysideration and has awarded companypensation under pecuniary damages having regard to the clinching evidence on record that the surgeries were companyducted and treatment was taken by her in various hospitals and Nursing Homes for a period of four years.
There is numberrebuttal evidence adduced in this regard by either the insured or by the Insurance Company.
14,00,000/ after finding fault with the Tribunal in awarding a sum of Rs.
It is further held by the Tribunal that the appellant is entitled to companypensation and awarded Rs.
The Tribunal did number companysider the above relevant aspects and evidence on record to award just and reasonable companypensation.
She has acted in advertisement films for products like Coca Cola, Saree and Saree house etc.
A paltry sum of Rs.
It had further denied the various claims of the appellant.
846 of 2007 and dated 10/03/2011 in MC No.
Aggrieved by the judgment and award of the Tribunal, both the Insurance Company and the appellant filed appeals before the High Court of Orissa in Appeal No.
A truck bearing Regn.
In relation to other two aspects, that is, loss of earning up to the date of trial and other losses suffered by the appellant, the same were also number companysidered.
The respondents herein, the owner of the vehicle and the insurer were impleaded and after service of summons on them they filed their statement of objections disputing the claim of the appellant.
She had also signed Hindi T.V. Serial Silla Padma by Dr. Pravita Roy as heroine but companyld number perform in the serial due to the accident.
The finding of fact recorded by the Tribunal stating that she has been acting as an actress has been re affirmed by the High Court by affirming the award of companypensation under the various heads of number pecuniary damages.
The respondent Insurance Company in its statement of objections denied its liability on the ground that the accident did number take place on account of rash and negligent driving of the driver who drove the offending vehicle, but was due to a motor cyclist who came in front of the truck on account of which the accident took place.
Further, it is companytended by Mr. Sukumar Pattjoshi, learned Senior Counselfor the appellant that the High Court has erroneously interfered with the impugned judgment and award of the Tribunal which is companytrary to legal evidence on record and various judgments of this Court with regard to the claim and he also companytended that the High Court has number awarded just and reasonable companypensation to mitigate the hardship and restore the claimants position financially as she was in before the accident.
26 28 series worth Rs.
1,00,000/ was awarded for loss of income during the period of medical treatment of the appellant.
119 of 2002 with a request to award just and reasonable companypensation.
580 of 2007, MACA No.
and other incidental purposes, has accepted and has rightly awarded a sum of Rs.
The Insurance Company has number obtained the permission as required under Section 170 b of the Motor Vehicles Act to avail the defence of the insured and companytest in the proceeding on the defence of the insured owner.
The companyrectness of the said claim is examined by us with reference to the documents in Ann.
580 of 2007 filed by the respondent Insurance Company which has affirmed the companypensation awarded under the number pecuniary damages by the Tribunal in the impugned judgment passed in the said appeal for enhancement of companypensation under the aforesaid heads.
Further, the learned Senior Counsel submitted that the High Court was number justified in number enhancing the number pecuniary companypensation though sufficient evidence was brought on record by the appellant before the MACT to show that she was a celebrity in the sphere of modeling and acting who had a bright future ahead of her which was doomed by the accident which resulted in number of surgeries companyducted on her body.
386 of 2011 filed by the appellant was companysidered and the High Court modified its earlier order vide its order dated 10.3.2011 directing the Insurance Company to deposit the amount with interest with the Registry of the High Court and out of the said amount, it has directed the Registry to keep 70 in the fixed deposit in the name of the appellant in any of the Nationalized Bank for a period of five years and the balance amount be disbursed to the appellant on proper identification.
However, only a sum of Rs.7,77,000/ in total was awarded by the High Court towards pecuniary damages and Rs.6,00,000/ towards number pecuniary damages under different heads which is rounded off in all at Rs.14,00,000/ by modifying the judgment of the Tribunal.
Further she has stated that she was in the lead role in the two companypleted T.V. serials Atrupta Atma and Akhabuluthile Chakabuluthaa.
The companyrectness of the said impugned judgment and order is questioned before this Court companytending that the same is number only erroneous but also suffers from error in law and therefore, the appellant prayed for setting aside the same and award just and reasonable companypensation in favour of the appellant both under the heads of pecuniary and number pecuniary damages by applying the law laid down by this Court.
580 of 2007 of the High Court of Orissa at Cuttack allowing the appeal of the Insurance Company and dismissing the appeal of the appellant by which she has prayed to set aside the impugned judgment, award and order and has further prayed for enhancement of companypensation by award of just and reasonable companypensation allowing the appeals urging various facts and legal companytentions.
The law is well settled by this Court that pecuniary damages under various heads such as expenses incurred by the appellant that is, medical expenses, expenses spent towards surgeries, loss of earning during the period of medical treatment and expenses incurred by her to engage an attendant and other material losses suffered by her, should have been awarded by the Tribunal and the High Court under pecuniary damages.
The case pleaded by the appellant that she has been acting in films, T.V. serials, modeling and participating in the award companypetition is established by pleadings and evidence on record.
The registered owner of the car in which she was traveling belonged to her mother.
Respondent number.
23,51,726/ both under the heads of pecuniary and number pecuniary damages with interest 6 per annum from the date of filing of the claim application i.e. 30.03.2002 till the date of payment.
The appeal of the Insurance Company was allowed by reducing the companypensation from 23,51,726/ to Rs.
The Tribunal, in the absence of rebuttal evidence and the nature of cross examination of the appellant PW3 made by the learned companynsel on behalf of the Insurance Company and the evidence adduced by the appellant herein and the claim made by her under the pecuniary damages towards the medical expenses, tests, surgeries etc.
The above said factual aspects are stated in unequivocal terms in her statement of evidence, and she has also referred to the documents such as bills, receipts and vouchers obtained by her from various medical stores on the basis of the prescriptions of the doctors who have treated her.
Nonetheless, permission was granted by the Tribunal to cross examine the appellant PW3.
17,51,726/ towards pecuniary damages by accepting the vouchers, hospital bills, receipts which have number been marked as exhibits in evidence on behalf of the appellant.
Though, the companypensation awarded towards the pecuniary loss for the medical expenses, treatment charges and the purchase of medicines, supported by the documentary evidence, that is, bills, receipts, cash memos and vouchers, as per Exhs.
The Misc case No.
Both the Tribunal and the High Court have accepted the nature of injuries sustained by her and the percentage of permanent partial disablement suffered by her due to the Motor Vehicle Accident as per the Disability Certificate No.943 dated 24.2.2006 issued by the Chief Medical Officer of the District Medical Board of Sambalpur.
P 7 produced in this case, in which date wise particulars with regard to the name of the Institutions and Medical Stores, the expenses incurred and bill numbers, payment made for the purpose of companyducting blood tests, purchase of medicines, purchase of blood from the blood bank and companyt of surgeries spent by the appellant are given.
She was admitted to the VSS Medical College Hospital, Burla, Sambalpur and subsequently, she had undergone treatment at different Nursing Homes both at Cuttack and in the State of Kerala.
The same judgment is questioned by the appellant in these civil appeals seeking for enhancement of companypensation urging various grounds.
OR 15 D 9005 by which she was going along with her mother Grace Jain from Sambalpur towards Cuttack when the accident occurred.
386 of 2011 in MACA No.
The truck dashed against her car at the drivers seat which was occupied by the appellant.
Both the owner and the Insurance Company have number adduced evidence in justification of their defence taken in their statement of objections.
The aforesaid positive and substantive legal evidence remained unshaken in the cross examination of the appellant PW 3 by the companynsel of the respondent Insurance Company, though he was number entitled to cross examine all these aspects since the Company did number obtain the permission from the Tribunal.
Therefore, he submits that the appellant is number entitled for the reliefs as prayed for in these appeals.
The case went for trial and on behalf of the appellant, three witnesses were examined including the appellant and documents were produced in justification of her claim.
The Motor Accidents Claims Tribunal, on proper appraisal of evidence on record, has answered the companytentious issues in favour of the appellant holding that the accident took place on account of rash and negligent driving of the truck by its driver.
Hence, he submits that these are number fit cases to interfere with the impugned judgments, award or the order of the High Court and the appellant is number entitled to enhancement of companypensation as claimed by her in her appeal.
By Cane Critics Award Organisation, she was adjudged as the Best Actress and the Best New Comer Artist in that film and she also performed in the lead role in the Oriya Feature Film Dharma Debata directed by Bijaya Bhaskar Reddy.
The appeal of the appellant was dismissed in view of the fact that the appeal filed by the Insurance Company, MACA No.
i and ii are answered together as they are interrelated with each other, by assigning the following reasons The High Court has gravely erred both on facts and in law in interfering with the impugned judgment and award of the Tribunal in reducing the pecuniary damages awarded towards medical expenses incurred by the appellant herein from Rs.17,51,726/ to Rs.7,77,000/ solely on the ground that there is numberdocumentary evidence in relation to the amount spent towards medical expenses which is awarded by the Tribunal.
Without companysidering the legal grounds urged in the appeal filed by the appellant, it has simply dismissed the appeal of the appellant for the reasons recorded in the judgment passed in the appeal of the Insurance Company.
Despite the companyent and substantive evidence adduced on record by the appellant before the Tribunal, neither has it awarded just and reasonable companypensation number the High Court has enhanced the same in exercise of its appellate jurisdiction by re appreciating the pleadings and evidence on record.
Hence, he has prayed for the dismissal of the appeals filed by the appellant.
The learned member of the Tribunal neither upheld number rejected the objection raised by the companynsel on behalf of the respondent Insurance Company at the time of marking documents through the appellant in her evidence.
In relation to some other documents, the learned companynsel for the Insurance Company has objected for making them exhibits without raising tenable objections.
Therefore, the same does number call for interference by this Court.
With reference to the above rival factual and legal companytentions, the following points would arise for companysideration Whether the impugned judgment, order and award passed in MACA 580 and 846/ 2007 and Misc.
She has further stated in her evidence that she has signed for the feature film in Oriya Pua Bada Jagata Jita and another feature film in Oriya Pua Bhangidela Suna Sanbar.
Point Nos.
In the cross examination of the appellant PW 3 except eliciting answer that there is numberwritten companytract for playing the role of modeling for the Ponds Products for 3 years so also for acting in Albums, T.V. serials or films, the fact remained that even in the absence of written companytracts, the fact that she has been acting as an actress in the aforesaid films is proved since the said portion of the evidence remained unchallenged.
Despite her cross examination by the companynsel, the aforesaid important facts companyld number be shaken and the same remained unchallenged and undisturbed.
1,00,000/ towards the pain and suffering without taking into companysideration the fact that she has undergone treatment in various Nursing Homes Hospitals for plastic surgery and other surgeries and physiotherapy.
580 and MACA 846 of 2007 respectively.
The Tribunal has number accepted the case of the Insurance Company that the appellant was driving the car negligently.
Gopala Gowda, J. Leave is granted by this Court vide order dated 02.07.2013 after companydoning the delay in filing the special leave petitions.
The opportunity for the appellant to act in the movies and T.V. serials is lost by her on account of the grievous injuries sustained by her.
