The Divisional Manager, Oriental Insurance Co. Ltd. Vs. Suresh Chandra Behera and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - however, on being moved and being satisfied about pressing necessity, the tribunal may permit withdrawal of the amount which according to him would meet the requirement.a. pasayat, j.1. in this appeal under section 173 of the motor vehicles act, 1988 (in short, the 'act') quantum awarded by thethird motor accidents claims tribunal, puri (in short, the 'tribunal') is the subject-matter of challenge.2. factual position is almost undisputed, and therefore detailed reference to it is unnecessary.on 16-3-1988 there was a vehicular accident wherein a mini truck bearing registration no. adn 7686 was involved. suresh chandra behera (hereinafter referred to as the 'claimant') sustained injuries on account of the accident. he was hospitalised for some time in g.b.s. hospital, khurda. on account of the accident he could not continue his job in khurda spinning mill where he was working as a dropper. a claim of rs. 1,00,000/- was made. considering the evidence of witnesses and materials on record, the tribunal awarded rs. 62,980/-. since the vehicle was insured with the oriental insurance co. ltd. (hereinafter referred to as the 'insurer'), the tribunal directed that the award was to be indemnified by the insurer.3. in support of the appeal learned counsel for insurer has urged that the conclusions of the tribunal are presumptuous and are without any basis or reason, and exorbitant award has been made. the learned counsel for claimant on the other hand supported the award stating that the amount awarded was reasonable.4. there was no definite material before the tribunal about the loss of earning capacity, if any, and the percentage of physical disability. certain certificates were filed by the claimant purported to be xerox copies of disability certificate and the certificate granted by the orthopaedic specialist. a bare look at them shows that the basis for assessment has not been indicated therein. added to that the doctor who allegedly treated the claimant was not examined. therefore, the tribunal was not justified in making guess work to quantify the award. in normal course i would have remitted the matter back to the tribunal for fresh adjudication. but considering the fact that the accident took place more than seven years back, i have accepted the suggestion given by learned counsel for claimant to make anoverall assessment of the materials, and to fix the quantum. by taking note of the wages that was being given to the claimant and the period of hospitalisation, the loss of earning capacity is fixed at rs. 35,000/-, and for physical pain and mental shock the quantum is fixed at rs. 10,000/- as done by the tribunal. in the ultimate result, settlement of the claimant is assessed at rupees 45,000/- on which interest at the rate of 9% from the date of claim is payable. default rate of interest stipulated by the tribunal is not maintainable in view of a division bench decision of this court in the oriental insurance company limited v. haragriva nayak, 1994 (1) ori lr 88. out of total compensation including interest, rs. 40,000/ - shall be kept in a fixed deposit in a nationalised bank for a period of five years, and no withdrawal shall be permitted against the same within the stipulated period. however, on being moved and being satisfied about pressing necessity, the tribunal may permit withdrawal of the amount which according to him would meet the requirement.5. the miscellaneous appeal is allowed to the extent indicated above.