MACA No.114 of 2021 & MACA No.164 of 2021

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IN THE HIGH COURT OF ORISSA AT CUTTACK

MACA No.114 of 2021 and MACA No.164 of 2021

MACA No.114 of 2021

Ashok Kumar Das

….

Appellant

Mr.P.K.Mishra, Advocate

-versus-

Samanthapudi Sivarama Raju and

another

….

Respondents

Mr.P.K.Mahali, Advocate for Respondent No.2

AND

MACA No.164 of 2021

The Divisional Manager,

National Insurance Co. Ltd.

….

Appellant

Mr.P.K.Mahali, Advocate

-versus-

Ashok Kumar Das and another

….

Respondents

Mr.P.K.Mishra, Advocate for Respondent No.1

CORAM:

JUSTICE B. P. ROUTRAY

ORDER

03.11.2022

Order No.

11.

1.

The matter is taken up through Hybrid mode.

2.

Heard Mr.Mishra, learned counsel for the Claimant and

Mr.Mahali, learned counsel for the Insurer.

MACA No.114 of 2021 & MACA No.164 of 2021

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3.

Both the appeals arise out of the same judgment dated 28^th

August, 2020 passed by learned 1^st M.A.C.T., Jagatsinghpur in

M.A.C. Case No.422 of 2015, wherein compensation to tune of

Rs.13,86,360/- along with interest @7% per annum has been granted

from the date of filing of the claim application on account of injuries

sustained by the claimant in the motor vehicular accident dated 7^th

February,2015.

4.

MACA No.114 of 2021 has been filed by the injured-

claimant praying for enhancement of the compensation amount on the

ground that future prospectus on the income of the injured has not

been added.

5.

MACA No.164 of 2021 has been filed by the Insurer

challenging the award mainly on the ground that the injured being an

insured person is not entitled to get any compensation under the

Motor Vehicles Act (hereinafter referred to as ‘M.V. Act’) and

secondly, the quantum of compensation has been excessively

computed.

6.

Mr.Mahali contends that the injured claimant has availed

the medical benefit under the Employee’s State Insurance Act

(hereinafter referred to as ‘E.S.I. Act’) being an employee of M/s 3

MACA No.114 of 2021 & MACA No.164 of 2021

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ACE Associates. As per Mr. Mahali, the claimant having once availed

the benefit under the E.S.I. Act, his prayer to get compensation under

the M.V. Act is not maintainable in view of the bar prescribed under

Sections 53 and 61 of the E.S.I. Act.

7.

Mr. Mishra submits in his reply that when the injury

sustained by the claimant is by use of a motor vehicle, and not arising

out of or in course of his employment, the bar under the E.S.I. Act is

not applicable. In this regard, he relies on a recent order of this Court

dated 16^th September, 2022 passed in MACA No.75 of 2021.

8.

Before adverting further, the admitted facts need to be

stated here are that, the claimant was working as a Manager under

M/s 3 ACE Associates on the date of accident and was an ‘insured

person’ within the meaning of Section 2(14) of the E.S.I.Act. Due to

the accidental injury, he suffered with 40% permanent locomotor

disability. Further, he received medical benefits to the tune of

Rs.6,17,318/- from the E.S.I. Corporation, Bhubaneswar towards

treatment cost in KIMS Hospital, Bhubaneswar.

9.

The Insurer by filing an application under Order 41 Rule 27

of the Code of Civil Procedure has prayed to mark the payment

invoice issued by the KIMS Hospital showing acceptance of payment

MACA No.114 of 2021 & MACA No.164 of 2021

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from E.S.I. Corporation for treatment of the claimant. Since the

claimant does not dispute about receipt of medical reimbursement

under the E.S.I. Act to the aforesaid tune of Rs.6,17,318/- as

mentioned in the invoice, the document is not found required to be

marked in evidence through additional evidence.

10.

Now coming to the question of maintainability of the claim

under the M.V. Act, the case of the injured is that on 7^th February,

2015 at about