You are on page 1of 16

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 NOS


1 O/R on limitation A
2 List of date B
3 Copy of Impugned order /Judgment dated 16/9/2009 Passed by 1-2
the Orissa High Court Cuttack in M.A.C.A 284 of 2007
4 Special Leave Petition With affidavit 3 - 13
5 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 284/2007
Code No 070100
In the matter of:-
An application under sec 173(2) of the moter vehicle Act
And
In the matter of:-
Bata Krishna Panda, aged about 38 years
S/o Khalli Panda, Advocate by profession
at-LIC Colony, Po/Ps-Bhanjanagar, Dt-Ganjam … Appellant
(claimant in the lower court)
Versus
1 Ajait Kumar Panda,S/o Sitaram Panda
(owner of trekker OR 02C 5847)
Landai Sahi, At/Po Bhejiput
Ps Bhanjanagar, Dt-ganjam
2 The Oriental Insurance Co Ltd
Represented by its Divisional Manager
Station Road, At/Po/Ps-Berhampur
District Ganjam … …. … Respondents
(sl No 1 and 2 were the opp party in lower court)
16/9/2009
This 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 INDIA
Order XVI, rule 4(1) (a)]

CIVIL APPELLATE JURISDICTION


SPECIALLEAVE PETITION
(Under Article 136 of the Constitution of India)
S.L.P. (Civil) No.................... of 2009

Position of parties
In the High Court In this Court
BETWEEN:-
IN THE MATTER OF
Bata Krishna Panda
aged about 41years
S/o Sri Khall Panda,
Advocate by profession
At-LIC Colony,Po/PS- Bhanjanagar,
Ganjam, Orissa
(Petitioner in Court Below) Petitioner Petitioner
VRS
1 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

To
Hon’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

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)
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 notary
True copy

Bata Krishna Panda


Petitioner