in the supreme court of india civil appellate jurisdiction s.l.p
TRANSCRIPT
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
S.L.P. (Civil) No.................... of 2009
(Arising from final Judgment dated 16/9/2009 Passed by the High Court of
Orissa at Cuttack in MACA 284/2007)
IN THE MATER OF:
Bata Krishna Panda … … … Petitioner
VRS
Ajit Kumar Panda and another … … … Respondent
PAPER-BOOK
(FOR INDEX KINDLY SEE INSIDE)
PETETIONER
INDEX
Sl.No PARTICULARS PAGE NOS1 O/R on limitation A2 List of date B3 Copy of Impugned order /Judgment dated 16/9/2009 Passed by
the Orissa High Court Cuttack in M.A.C.A 284 of 20071 - 2
4 Special Leave Petition With affidavit 3 - 135 Annexure 1 (in a separate attachment)
Copy of judgment 4th M.A.C.T Bhanjanagar in M.A.C 243 of 2003
6 Annexure 2 (in a separate attachment)Copy of Memorandum of appeal before Orissa High Court of MACA 284 0f 2007
SYNOPSIS AND LIST OF DATE (B)
9.3.1998 The petitioner sustained a fracture injury and other injury
by a motor vehicle accident due to rash and negligence
driving of the driver of vehicle vide OR 02C 5847, over
which the local Bhanjanagar Police registered a case U/s
279,338 of IPC vide Ps case No 80/98 out of which the
SDJM Bhanjanagar registered a GR case vide 186 /98
10.7.1998 The petitioner filled a claim case as per MV Act before 1st
MACT Berhampur for of Rs 11 lakhs for pecuniary and
non pecuniary losses such as permanent disability of
shorten of right legs by 2 ½’inches basing upon disability
certificate issued by medical board Ganjam under
guidance of CDMO Berhampur and injury report etc
18.12.2006 The Tribunal only awarded Rs 35,000/- against the said
claim in fever of petitioner with out considering all
evidence available in record
26.3.2007 the Petitioner filled a appeal before the Orissa High Court
at Cuttack against the said order of Tribunal Vida MACA
No-284/2007
16.9.2009 The Orissa High Court Passed final judgment only
enhancing a amount of Rs 25,000/- in lump sum with out
no interest against the claim of Rs 11 lakhs with out
deciding all questions raised by the petitioner
6.12.2009 hence this special leave petition under Article 136 of
Constitution of India against the impugned order dated
16/9/2009 passed in MACA No 284/2007
IN THE HIGH COURT OF ORISSA : C U T T A C K(MISCELLANEOUS APPELLATE JURIDICTION)
MACA NO 284/2007Code No 070100
In the matter of:-An application under sec 173(2) of the moter vehicle ActAnd
In the matter of:-Bata Krishna Panda, aged about 38 years S/o Khalli Panda, Advocate by professionat-LIC Colony, Po/Ps-Bhanjanagar, Dt-Ganjam … Appellant(claimant in the lower court)
Versus1 Ajait Kumar Panda,S/o Sitaram Panda
(owner of trekker OR 02C 5847)Landai Sahi, At/Po BhejiputPs Bhanjanagar, Dt-ganjam
2 The Oriental Insurance Co LtdRepresented by its Divisional ManagerStation Road, At/Po/Ps-BerhampurDistrict Ganjam … …. … Respondents(sl No 1 and 2 were the opp party in lower court)
16/9/2009This appeal by the claimant is directed against the
judgment / award dated 18.12.2006pased by the 4th MACT Bhanjanagar
Ganjam in MAC 243of 2003 awarding an amount of Rs 35,000/-as
compensation along with interest @ 6% per annum from the date of filing of
the claim application. The claimant –appellant seeks enhancement of the
compensation amount
Learned counsel for the claimant-appellant submits that
all the requisite documents including the medical papers, such as
prescriptions medicine bills, injury report and disability certificate having
been filled in support of the injuries sustained by him in the accident and
the expenses incurred for treatment of such injuries, learned tribunal erred
for ignoring the same and passing the impugned award. In this regard it is
submitted that as the injury report (ext 14) clearly revealed that the injured
Claimants sustained lacerated injuries and fracture of shaft right tibia,
which is grievous in nature, the award of compensation amount is wholly
inadequate, unjust and improper. It is further submitted that the learned
tribunal has not taken in to consideration the nature of injury sustained and
the extend of disability suffered by the claimant, for assessing the
pecuniary and non pecuniary damages, while passing the impugned award.
it is further submitted that as the injured claimant sustained disability due to
shortening of right leg by 2 ½” which amount 60% disability, which is a
permanent in nature, the same has not been taken in to consideration by
the learned Tribunal, While assessing the compensation amount payable.
Accordingly it is submitted that the award of compensation amount is
wholly inadequate and not commensurate with the injuries sustained by the
claimant.
Learned counsel for the insurer-respondent no-2 while
supporting the impugned award, submit that there being no cogent and
credible documentary evidence on record to show the actual nature of
injuries sustained by the injured claimants and the extend of disability
suffered by him due to such injury, the impugned award cannot be faulted
On a perusal of impugned award it is seen that the injury report
on police requisition (ext 14) reveals that the injured claimant sustained
lacerated injury as well as fracture of right tibia which was grievous in
nature. the disability certificate (ext 5), the veracity of which was doubted
by the learned Tribunal shows that due to such injury the claimant had
suffered disability to the extend of 60%, further it is seen that the claimant
had filed prescription (ext 6 series) and Medicine bills (ext 7 series) in
support of expenses incurred by him for treatment of injuries
Considering the submission of the learned counsel for the
parties and keeping in view the nature and extend of in juries sustained by
the claimant and the disability suffered by him, I feel the interest of justice
would be best served if a further consolidated amount of Rs 25,000/- is
awarded to the claimant as compensation on which no interest is payable.
The impugned award is modified to the said extend
The insurance company respondent No-2 is directed to deposit
the further consolidated compensation amount of Rs 25,000/- with the
learned Tribunal with in six weeks from today
MACA is accordingly disposed of
SD/- S.C Parija. J True copy
Bata Krishna Panda Petitioner
IN THE SUPREME COURT OF INDIAOrder XVI, rule 4(1) (a)]
CIVIL APPELLATE JURISDICTIONSPECIALLEAVE PETITION
(Under Article 136 of the Constitution of India)S.L.P. (Civil) No.................... of 2009
Position of partiesIn the High Court In this Court
BETWEEN:-IN THE MATTER OFBata Krishna Panda aged about 41yearsS/o Sri Khall Panda,Advocate by professionAt-LIC Colony,Po/PS- Bhanjanagar,Ganjam, Orissa(Petitioner in Court Below) Petitioner Petitioner
VRS1 Ajit Kumar panda, S/o Sitaram Panda (owner of trekker OR-02C 5847 Landai Sahi, Po Bhejiputa, Ps-Bhanjanagar, Ganjam, Orissa Opp Patry-1 Respondent 1 2 The Oriental Insurance Co.Ltd Represented by it Divisional Manager, At/Po/Ps -Berhampur, Ganjam Opp Party-2 Respondent 2
ToHon’ble the Chief Justice of India and His Companion Judges of the
Supreme Court of India at New Delhi
The Special Leave Petition of the Petitioner
MOST RESPECTFULLY SHOWETH:
1. The petitioner above named respectfully submits this petition seeking
special leave to appeal against the final judgment/order of Orissa
High Court Cuttack of dated 16/9/2009 in MACA No 284/2007 where
the single bench partly allowed the appeal of petitioner
2. QUESTIONS OF LAW :
I weather the High Court Rightly not decided all the questions
regarding Law and facts raised by the petitioners as grounds of
appeal
II weather the High Court rightly not awarded compensation
towards pecuniary and non pecuniary losses separately
III weather for 2 ½” shorten of Right leg amount a 60% disability
and for the said disability the award made by High Court and
Tribunal justified
VI weather a interim order is final and conclusive and weather a
court is bound to accept it at the time of passing judgment
ignoring documentary and oral (evidence of medical experts)
evidence available in record
V Weather the petitioner entitled to get medicine expenses,
attendant charges, vehicle rent as compensation
3. DECLARATION IN TERMS OF RULE 4(2):
The petitioner states that no other petition seeking leave to appeal
has been filed by him against the impugned judgment and order dated
16/9/2009
4. DECLARATION IN TERMS OF RULE 6:
The petitioner states that the annexure produced with the SLP are
true copies of the pleadings/documents which formed part of the
records of the case in the Court below against whose order the leave
to appeal is sought for in this petition.
5. GROUNDS:
Leave to appeal is sought for on the following grounds.
A. For that specifically the petitioner want draw kind attention of
the Hon’able Court on a earlier decision SHASHENDRA LAHRI
VRS UNICEF AND OTHERS (1997) II SCC 446, decided on
6/12/1996(Civil Appeal No-15567/1996) where this Hon’able
Court awarded a addition of Rs 4 Lakhs with Rs 58,000/-
award of High Court for a occurrence of 6/1/1977 with interest
of 12% per annum for disability of shorten of leg by 3” inches, to
a 17 years old B.Com Student, where as in this case the
petitioner was a advocate who had a income of Rs 7,000/- per
month from profession and agriculture and age was 29 year old
at the time of accident, and also sustained a disability of
shortened of right leg for 2 ½’inches, which amount 60%
disability, so claim of Rs 11 Lakh is not higher side due to
decrease of money value because of inflation
B. For that while decide the case neither the Tribunal nor the High
Court awarded compensation towards pecuniary and non
pecuniary loss separately, but as per the settled principle of law
laid by this Hon’able court earlier, amount of compensation
shall be calculated separately for each factor. I(1995) ACC 281
(SC) decided on 6/1/1995 vide civil Appeal Nos 1799-1800 of
1989
C. For that the High court only enhanced a Rs 25,000/- with out
any interest for injury sustained and disability suffered, which is
too low and unjustified as per law and principle laid down by
this Hon’able court time to time, the petitioner want to draw kind
attention of the Hon’able Court on the fallowing
citations[(1997)II SCC 446, AIR 1998 SC 3064, I(1995)ACC
281(SC), {1999 SAR (Civil)526 decided on 8/4/1999vide Civil
Appeal No 2158 0f 1999}, II(1995)ACC 91(DB),
II(2001)ACC52(DB), I(2001)ACC92(DB), 2002(3) TAC 643
MAD] which are very much similar with the fact of case and
injury and disability sustained by the petitioner, where this apex
court awarded a Rs 5 Lakhs at about 10 year back, but now
due to inflation and reduce in money value a claim of Rs 11
lakhs is very low with comparison to said previous awards of
this Apex Court for 2 ½” shorten of Right leg
D. For that also both the Tribunal and High courts committed a
gross error by not awarding any amount towards pain and
suffering, where as the petitioner is entitled to get
compensation for pain and suffering. 1995 ACC 281 Para-15,
2001 ACC 52 para-11
E. For that the petitioner spent Rs 40,000 For purpose of medicine
and to proof the same he filled prescriptions (exhibit -6 series)
and medicine Bills (exhibit -7 series), neither the Tribunal nor
the High Court awarded any amount for said expenses while
passed judgment with out any reason
F. For that while the petitioner was under treatment, he engaged a
attendant for his service and for that purpose he spent Rs
18,000/- and to proof the same petitioner filled exhibit- 9 and
the same is also corroborated by the said attendant (PW-3), but
the said expenditure was also neither considered by The
Tribunal nor also by The High Court at the time of Judgment
G. For That the petitioner spent Rs 14,000/- for hiring vehicle to
move Berhampur to attend before orthopedic professor
Jaganath Sahoo for medical check up and to proof the same
the petitioner filled exhibit -8 which are also not considered by
the Tribunal and High court
H. For that the petitioner spent Rs 10,000/- for diet and other
expenses during Berhampur visit for check up which was also
not considered by tribunal and High Court while disposal of
case and appeal
I. For that due to fracture in right leg the petitioner could not able
to move for one year due to plaster and post plaster problem
which was highly affected his normal conjugal life and For that
the petitioner is entitled to get a Rs 50,000/-(1995 ACC 281
para-15)
J. For that as the petitioner could not able to do his normal duty
for one year, so he is entitled to get compensation for such loss
of income. As per the evidence adduced by petitioner, he was a
practicing lawyer and also doing cultivation, and getting Rs
5000/-per month from profession and 24,000/- per annum from
agriculture, but said loss was also not considered by the
Tribunal and High court. II (2001) ACC 52 Para-14, I (2001)
ACC 92 Para-17
K. For that the Tribunal and High Court also committed a error by
not considering loss of feature income due to disability of 60%
for shorten of right leg for 2 ½” inch as per 163A of MV Act
L. For that to proof the injury the petitioner – appellant filled the
certified copy of injury report vide exhibt-14 and to proof
disability the petitioner filled disability certificate issued by the
medical board under guidance of CDMO Ganjam, Berhampur
vide exhibit -5 and the said document was also proofed by oral
evidence of one of a Board Member (PW-5). Again the said
disability was corroborated by the oral evidence of a another
doctor who made treatment (PW-2) to the petitioner. But the
Tribunal not considered the same, where as though the high
Court considered, but not awarded accordingly
M. For that the Learned Tribunal only awarded a 6% rate of
interest on award amount where as the High Court not awarded
any interest on enhanced amount, continuous reduce in money
value due to continuous increase in inflation 6% interest is not a
equity but a arbitrary decision. So the interest should not
according bank rate but according to decrease in money value
N. For that the tribunal neither accepted documentary evidence
nor also accepted any oral evidence of petitioner, where as
accepted exhibit A, zerox copy of certified copy of order dated
24/9/2002 of CS 8/02 of Civil Judge (SD) Bhanjanagar and
exhibit B, a zerox copy of certified copy of order of CRP 208/02
of High Court, Cuttack, The said order of high Court was arose
from the said order of civil Judge (SD) Bhanjanagar which was
a interlocutory order in nature and that suit CS 8/02 was a
different suit where parties are not same, ( present respondents
are not party in that suit). The Civil judge while passed that
order no evidence was adduced except filing of the disability
certificate. As per the settled principle of law orders
(interlocutory) are not final and conclusive and at the time of
hearing if sufficient evidence available the court can pass a
judgment as per the evidence available in record. (AIR 1962 SC
993 Para-13, AIR 2006 SC 3091, AIR 1981 AP 402 Para-13,
1998(II) OLR Page-1(Para-6) As per the dictionary meaning of
Wharton’s Law Lexicon (14th Edition, page 529)
“An interlocutory order or judgment are made or given
during progress of an action but which does not finally dispose
of the right of the parties”
As per Sec -2(15) of CPC
“Order means the formal expression of any decision of
Civil Court which is not a decree
There fore the Tribunal committed an error by not accepting
evidence available on record and by accepting a interlocutory
order of Civil Judge (SD) Bhanjanagar (Exhibit-A and exhibit-
B),But though the learned High court accepted the disability
certificate exhibt-5, injury report exhibit 14 and other filled
documents such as exhibt-6 and 7 series but not awarded any
amount as per principle of this Hon’able Apex Court laid
earlier
6. GROUNDS FOR INTERIM RELIEF:
No prayer for interim relief’s being made
7. MAIN PRARYER:
It is there fore humbly prayed that this Hon’able court may graciously
be pleased to grant the special leave to Appeal against the final judgment
dated 16/9/2009 passed by the Hon’able High court Orissa at cuttack in
MACA 284/2007 and grant a additional compensation of Rs 10,40,000/-
with a 12% interest from the date of filling of the claim case in the interest
of justice
8. INTERIM RELIEF:
No interim relief is sought at this stage
AND FOR THIS THE PETETIONER SHALL EVER PRAY
Drawn on 6/12/2009
Filled on 6/12/2009 drawn and filled by
Bata Krishna Panda Petitioner
In the Supreme Court of India (Civil Appellate Jurisdiction)
S.L.P. (Civil)………………….of 2009
Bata Krishna Panda … … … Petitioner
Versus
Ajit Kumar Panda and another … … … Respondent(s)
CERTIFICATE:
Certified that the Special Leave petition is confined only to the pleadings before the High
Court whose order is challenged and the other documents relied upon in those proceeding. No
additional fact/documents or ground have been taken herein or relied upon in the Special Leave
petition. It is further certified that the copies of the documents /annexure attached to the Special
Leave petition are necessary to answer the questions of law raised in the petition or to make out
grounds urged in the Special Leave petition for consideration of this Hon’ble Court. This
certificate is given on the instruction of the petitioner whose affidavit is filed with the special
leave petition.
Bhanjanagar, Ganjam, Orissa
Date: Filed by
P E T I T I O N E R
In the Supreme Court of India (Civil Appellate Jurisdiction)
S.L.P. (Civil)………………….of 2009
Bata Krishna Panda … … … Petitioner
Versus
Ajit Kumar Panda and another … … … Respondent(s)
AFFIDAVAIT OF FACTS
I Sri Bata Krishna Panda, Son of Sri Khalli Panda, Aged about 41 Years, by
profession Advocate, Resident of L.I.C.Colony, Po/Ps Bhanjanagar, Dt-Ganjam, Orissa
Do solemnly affirm and stand state as follows:
1. I am the petitioners/ appellants in the above matter and such acquainted with the fact of
the case.
2. The fact stated in S.L.P the accompanying petition are true to my knowledge and the rest
are on information derived from the papers of the case and believed to be true.
3. That no Special Leave/W.P/T.P./has been filed in the above matter earlier by me in the
Hon’ble Supreme court against the impugned order/Judgment. Decree for similar relief.
4. The fact stated in the accompanying Misc. Petiton (namely Stat/Condo nation of
delay/Bill/application) for filing of the impugned order/ application for substitution of
L.R.S. and other misc. petition with their annexure are true and correct to my knowledge
derived from the record of the case and my personal knowledge.
5. I say that the facts stated in paragraphs A to N. and pages 3 to 10 of the Special Leave
Petition and page B of the List of Dates are true to my personal knowledge and
submissions made therein are based on legal advice which I received and believe to be
true.
6. That the annexure being enclosed with the petition, are true copies of their respective
originals.
Sd
DEPONENT
VERIFICATON
I, Deponent above named, do so solemnly affirm and declare that the contents of
the fore-going affidavit are true to my knowledge and no part of it is false and nothing
material has been concealed.
Verified on this the 8th day of December 2009
Sd
DEPONENT
Seal and signature of notaryTrue copy
Bata Krishna Panda