Calcutta High Court (Appellete Side)
The National Insurance Company ... vs Sri Malay Chakraborty & Anr on 27 August, 2021
18 27.8.2021 (Via Video Conference)
Sc
F.M.A. 49 OF 2019
with
I.A. No. CAN 1 OF 2018
(Old No. CAN 7537 OF 2018)
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The National Insurance Company Ltd.
Vs.
Sri Malay Chakraborty & Anr.
Mr. P. K. Pahari
...For the Appellant/
Claimant.
Ms. Sudarshana Dutta
...For the Respondent No.1/
Claimant
The appeal is directed against the judgment and
award dated 4th June, 2018 passed by the learned
Additional District Judge, Motor Accident Claims
Tribunal, Fast Track Court, 1st Court, Burdwan in M.A.C.
case no. 50 of 2015 under Section 166 of the Motor
Vehicles Act, 1988.
Mr. Pahari, learned advocate for the
appellant/Insurance Company submits that the tribunal
only mechanically, without following the procedure of law,
has awarded an amount of Rs.4,50,000/- along with 7%
interest from the date of filing. He also submits that
there is no legal proof of the involvement of the vehicle
bearing no.WB 18D 5073 in the accident of the
respondent no.1/claimant.
Learned advocate for the appellant/Insurance
Company submits also submits that the assessment of
compensation on the basis of disability certificate, issued
by Dr. Tarak Chandra Halder, P.W.3, is not in conformity
with the provisions as laid down in the Motor Vehicles
Act, 1988.
Ms. Dutta, learned advocate for the respondent
no.1/claimant submits that the award passed by the
tribunal is just and it need not to be modified. She also
submits that the claimant has exhibited three documents
before the tribunal which are copy of the formal FIR,
certified copy of the Charge-sheet and certified copy of the
Seizure List which clearly proves that the vehicle number
WB 18D 5073 was involved in the accident of the
claimant, happened on 13th September, 2014. Ms. Dutta,
also submits that the delay in lodging the FIR was due to
the claimant's treatment that was going on after the said
accident and the claimant lodged the FIR as soon as he
recovered from the accidental injuries.
Learned advocate for the claimant also submits
that the doctor who issued the disability certificate was
also one of the members in the panel for disability
assessment. Ms. Dutta also submits that on clinical
examination of the claimant it was found that the
claimant had some hassles in walking.
Learned advocate for the claimant has relied on the
judgement of Raj Kumar -vs.- Ajay Kumar & Anr.,
reported in (2011) 1 SCC 343 wherein it was held that
the tribunal may invariably make it a point to require the
evidence of the doctor who treated the injured or assessed
permanent disability, mere production of a disability
certificate or discharge certificate will not be the proof of
the extent of disability stated therein unless the doctor
who treated the claimant or who medically examined and
assessed the extent of disability of the claimant is
tendered for cross-examination with reference to the
certificate.
Heard learned advocates for the parties and
perused the materials on record. This Court is of the view
that there is no difficulty to accept that the accident has
been proved by the claimant as well as from the exhibited
documents it is clear that the vehicle bearing no.WB 18D
5073 was involved in the said accident. The tribunal also
after considering the evidence laid down in respect of the
disability certificate, provisions of the Motor Vehicles Act
and also keeping in view the judgment of Raj Kumar
(supra) has correctly assessed the permanent functional
disability of the claimant to 10%.
Accordingly, the impugned award is modified and
recalculated in the manner referred hereinafter.
Particulars Amount (Rs.)
Medical treatment Rs.30,000/-
Pain and suffering accompanying
Physical and mental agony Rs.80,000/-
Compensation towards loss of
earning during the period of
treatment and loss of future earnings
on account of permanent
disability(Rs.4000+1000=5000x12
X 13 X 10/100) Rs.78,000/-
Future medical expenses Rs.30,000/-
Loss of amenities and enjoyment
of life and loss of expectation of
spending quality life Rs.50,000/-
Food and nourishment Rs.25,000/-
Conveyance charges for
Treatment at Kolkata and
Burdwan Rs.23,000/-
Total Rs.3,16,000/-
Accordingly, a total sum of Rs.3,16,000/- along
with interest @6% per annum would become payable to
the claimant by the Insurance Company, on and from the
date of filing of the claim application till its realisation.
The Insurance Company submits that a total sum
of Rs.4,75,000/- has been deposited with the Registrar
General of this High Court who has invested the aforesaid
amount in a short-term fixed deposit.
The Registrar General shall check the veracity of
the bank account of the claimant and the identity of the
claimant before disbursing the amount to the claimant
within four weeks from date and the remaining amount, if
any, will be handed over to the Insurance Company.
Accordingly, with the above directions the appeal is
disposed of.
In view of the disposal of the appeal, connected
applications, if any, are also disposed of. The department
concerned is directed to tag the applications, if any, with
the main appeal.
The department is directed to send down the lower
court records, if arrived, immediately.
There will be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of all
formalities.
(Shekhar B. Saraf, J.)
