FAO No.186 of 2025 IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.186 of 2025 (From the judgment dated 21st February 2025 passed by the learned Commissioner for Employee’s Compensation-cum-Divisional Labour Commissioner, Dhenkanal in E.C. Case No.14 of 2021) M/s.ICICI Lombard GIC Ltd., Satya Nagar, Bhubaneswar …. Appellant -versus- Laxmidhar Mallik and another …. Respondents Advocate(s) appeared in this case:- For Appellant : Mrs. R. Pati, Advocate For Respondents : Mr. A.S. Nandy, Advocate For Respondent No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 22nd January 2026 B.P. Routray, J. 1. Present appeal by the insurer is directed against the judgment and award dated 21.02.2025 passed in E.C. Case No.14 of 2021 by the Commissioner for Employee’s Compensation-cum-Divisional Labour Commissioner, Dhenkanal, wherein compensation to the tune of Rs.14,51,319/- including interest and medical expenditure of Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 Rs.3,02,669/- has been granted to the claimant-Respondent No.1 on account of injury sustained in course of and arising out of his employment as a driver of a Car bearing Registration No.OD-02-BH- 0121 belonging to Respondent No.2. 2. It is submitted on behalf of the Appellant-Insurance Company that, the story advanced by the claimant with regard to the accident is unbelievable and further, the amount of compensation has been assessed on higher side by taking income of the claimant at Rs.8000/- per month, which has not been proved on record. 3. The claimant is Respondent No.1 and a cross appeal has been filed by him praying for enhancement of the compensation amount by counting monthly income to the tune of Rs.10,000/- as per his contention made in the claim application. 4. The accident took place on 31.12.2019 and the claimant sustained physical injuries. He was then shifted to District Headquarters Hospital, Dhenkanal. Due to suffering of the injuries, the claimant was further treated at S.C.B. Medical College & Hospital, Cuttack and underwent surgery at Swastik Hospital, Cuttack. The age of the claimant is 39 years and according to his claim, he was getting Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 salary of Rs.10,000/- as the driver of the Car bearing Registration No. OD-02-BH-0121. According to the claimant, he sustained with permanent locomotor disability to the extent of 45% by shortening of his right leg, due to injuries sustained in the accident. 5. The validity of insurance of the vehicle in question on the date of accident is not disputed. It is seen that, the claimant has adduced several documents in support of the accident including the copy of FIR and other Police papers. He examined himself as P.W.1 and another eye-witness as P.W.2. In support of the injury, the injury report issued by the D.H.H., Dhenkanal, the Disability Certificate issued by the District Medical Board and other medical papers have also been filed by the claimant which are marked as Exts.1 to 10. 6. A perusal of the copy of the FIR along with deposition of the claimant (P.W.1) as well as the statements of P.W.2 made in his deposition do not give any reason to disbelieve the contention of the claimant with regard to the accident and sustenance of injuries thereof. It needs to be mentioned here that the witness examined as O.P.W.1 is the Investigator appointed by the Insurance Company and he does not have any direct knowledge regarding the accident. Thus, by Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 considering the statements of evidences made by the claimant and P.W.2 vis-à-vis the evidence of O.P.W.1, nothing is found there to disbelieve such evidence of the claimant regarding injuries due to the accident, and suffering from permanent disability to the extent of 45%. 7. So far as the income of the claimant is concerned, according to him, he was getting Rs.10,000/- per month and this part is also admitted by the owner-employer in his written statement. The owner has further admitted the employment of the claimant as his driver and payment of such amount per month to him. Here upon perusal of the cross-examination of the claimant (P.W.1), it reveals that he has admitted that he was not working as a regular driver and was working as alternate driver. Taking advantage of this admission made by P.W.1, it is submitted by Mrs. Pati, learned counsel for the insurer-Appellant that counting of his monthly income to the tune of Rs.8000/- is erroneous. 8. Mr. A.S. Nandy, learned counsel for the Respondent No.1- claimant, on the other hand, submits that, when it is admitted by the employer regarding payment of Rs.10,000/- to the claimant per month as his driver, the learned Commissioner should not have reduced the Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 same by recoursing to the notification of the Government dated 31.05.2010 in terms of the Explanation-II of Section 4(1-B) of the E.C. Act. 9. This Court in the case of Divisional Manager, Oriental Insurance Co. Ltd., vs. Kuna Behera and another, 2024 (I) ILR-CUT- 1278, by relying on the decision of the Hon’ble Supreme Court in K. Sivaraman and others vs. P. Sathishkumar and another, (2020) 4 SCC 594, have observed as follows:- “9. So from the above analysis and discussions it becomes clear that the actual monthly wage of an employee is to be taken into account in determining the compensation amount. The actual monthly wages has to be brought on record by way of acceptable evidence. If the evidences and materials are unclear to determine the actual monthly wages, then the prescription of minimum wage rate during that relevant period read with the amount notified by appropriate government under Section 4(1-B) of the E.C. Act, is to be followed for determining the compensation amount.” 10. In the instant case, as per evidence of P.W.1, the claimant himself has admitted during his cross examination that, he was working as alternate driver and not a regular driver. The owner has not come to the witness box to confirm his contention regarding payment of monthly remuneration of Rs.10,000/- to the claimant. Simultaneously, the insurer has also not disputed such contention of the owner regarding payment of monthly remuneration by adducing Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 evidence. Therefore, the submission advanced by the Appellant to reduce the income of the claimant other than the amount said by the employer and the employee, is not found conceivable. The admission of the claimant that he was working as alternate driver is not further clarified in his cross-examination to draw any inference on the income of the claimant as admitted by him as well as his employer. Therefore, the learned Commissioner is left without any scope to reduce the same to Rs.8000/- by taking aid of the notification of Government dated 31.05.2010. 11. The interpretation of said notification dated 31.05.2010 has been dealt in detail in the above referred judgment of this Court. Thus, as per the principles decided, it is the actual amount paid to the claimant during the relevant period has to be followed to determine the compensation amount. A further dispute is raised by the insurer- Appellant with regard to computation of the loss of income as per the percentage of disability recorded in the Disability Certificate, which is 45%. But the same has not been accepted by the learned Commissioner on the ground that such disability is a locomotor disability whereby the right leg of the claimant was shortened by two inches affecting his profession as a driver. Learned Commissioner accordingly computed Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 the loss of income as 100% instead of partial loss of income. When such disability of the claimant affecting his locomotion is established on record, the observation of the Commissioner cannot be said as unjustified to count the loss of income as full taking note of the profession of the claimant as a driver. Accordingly, such finding of the learned Commissioner is confirmed and the loss of income is counted at 100%. 12. Taking the age of the claimant as 39 years and thus applying the multiplier 186.90 as the age factor, the loss of income is calculated at Rs.11,21.400/-, which is payable along with interest @12% per annum. 13. The further direction of learned Commissioner to pay the medical expenses to the tune of Rs.3,02,669/- is found justified keeping in view the period of treatment including surgery and sustenance of disability by the claimant. Therefore, no reason is found to interfere with the direction of the learned Commissioner in that respect. 14. In the result, the appeal filed by the Appellant-insurance company is dismissed, whereas the cross-appeal of the claimant is allowed by enhancing the compensation amount to the extent of Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Jan-2026 13:37:09 Signature Not Verified FAO No.186 of 2025 Rs.11,21,400/- along with interest @12% plus medical expenditure to the tune of Rs.3,02,669/-. The enhanced compensation amount shall be paid within a period of two months from today. It is needless to say that the amount as already deposited before the learned Commissioner may be released in favour of the claimant along with accrued interest thereon immediately upon production of a certified copy of this judgment and the balance amount will be paid within such period as directed above. The copies of the depositions and exhibits, as produced by respective parties in course of hearing, are kept on record. (B.P. Routray) Judge B.K. Barik/Secretary