Calcutta High Court (Appellete Side)
Abul [email protected] Sk.Abul Hosen vs Oriental Insurance Company Ltd on 27 July, 2022
Page 1 of 10
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE RABINDRANATH SAMANTA
FMA 531 of 2011
IA No. CAN 1 of 2011 (Old No. CAN 3850 of 2011)
1. Abul [email protected] Sk.Abul Hosen..Appellants/Claimants
Vs
1. Oriental Insurance Company Ltd.
2. Sri Anukul Kapri & 2 others owners
.....Respondents
_______
Mr. Krishanu Banik, Adv.
..... for the Appellant
Ms. Sucharita Paul,Adv. .....for the Respondent No.1
Heard On : 06.07.2022
Judgment on : 27.07.2022
Rabindranath Samanta, J:-
1. Aggrieved by the judgment and award dated 6th April, 2010 passed by
the learned Judge, Motor Accident Claims Tribunal (hereinafter be
referred to as the Tribunal), 2nd Fast Track Court, Tamluk, Purba
Medinipur in MAC Case No. 64 of 2008 arising out of MAC Case No.
13 of 2008, the appellant has preferred the instant appeal. By the
judgment the learned Tribunal directed the respondent No.1, Oriental
Insurance Company Limited to pay an amount of Rs. 3,05,362/- as
compensation to the appellant/claimant within two months from date
of receipt of a copy of the award, failing which the amount shall carry
interest at the rate of 9% per annum till realization of the amount.
Assailing the compensation as awarded as inadequate compensation,
the appellant by presenting this appeal seeks enhancement of the
compensation.
2. The background facts which led the filing of the claim application
under Section 166 of the Motor Vehicles Act may be adumbrated as
under:
On 26.11.2007 at about 12:45 PM Abul Hossian @ Sk. Abul Hosen
son of Sk. Apnser Ali @ Apser Ali of village Bar Basudevpur, P.S-
Sutahata, District- Purba Medinipur and other passengers were going
to Haldia from Bagnan along Durgachak-Mahishadal Metal Road by a
bus bearing No. WB-29-8005. The said bus was running with
excessive speed endangering to human life and safety. When the bus
reached at Dwariberia Ashram Morh under P.S- Sutahata at that
time, the driver of the bus lost his control and dashed against a road
side tree and capsized there. As a result, Abul Hossian @ Sk. Abul
Hosen sustained grievous injuries all over his body, especially on his
head, forehead. He sustained fractures on spinal cord at C2-C3 level.
The victim was initially taken to Durgachak S.D.Hospital on
26.11.2007 and thereafter he was shifted to Medical College &
Hospital, Kolkata on 27.11.2007. He was medically treated there from
27.11.2007 to 08.12.2007. The doctor advised the victim that his
spinal cord would be operated. The victim is still under medical
treatment. Towards medical expenditure he has already spent
Rs.1,00,000/-.
3. The victim has now become paralysed on account of the injuries
sustained by him on his spinal cord.
4. The accident took place due to rash and negligent driving on the part
of the offending bus. The victim was a tailor and supplier of
readymade garments at different market. He used to earn Rs.4,500/-
per month. After he became paralysed, he now cannot carry on his
business. As a result, his family members are suffering immense
financial distress.
5. At the time of the accident the victim was aged about 39 years.
6. On the allegations of rash and negligent driving on the part of the
driver of the offending vehicle, an FIR was lodged at Sutahata Police
Station and the FIR was registered as Sutahata PS Case No. 65 of
2007 dated 26.11.2007 under Sections 279/337/338 of the Indian
Penal Code. At the time of the accident the offending bus was insured
with the respondent No.1, Oriental Insurance Company Limited.
7. On the facts as stated above, the claimant sought for compensation of
Rs. 5,50,000/- and interest thereon.
8. The respondent No.1, Oriental Insurance Company Limited contested
the claim case by filing a written statement wherein it denied the
averments/allegations as made in the claim application and sought
for dismissal of the case.
9. Upon the pleadings of the parties the following issues were framed by
the learned Tribunal.
i) Whether the case is maintainable in its present form and
prayer?
ii) Whether the injury of the victim was caused due to rash and
negligent driving by the driver of the offending vehicle being No.
WB-29-8005 on the aforesaid date and time?
iii) Whether the petitioner is entitled to get compensation, if any, as
prayed for?
iv) To what other relief/reliefs, is the claimant entitled?
10. To prove his case the claimant Abul Hossian @ Sk. Abul Hosen got
himself examined as P.W. 1 and he examined Dr. Sandipan
Bhattacharya as P.W. 2. The claimant relied on some documents
which were marked as Exhibits 1 to 10.
11. Upon hearing the learned Advocates appearing for the parties and
on assessment of the evidence on record the learned Tribunal partly
allowed the claim application and awarded the compensation as
indicated above.
12. The victim Abul Hossian @ Sk. Abul Hosen(P.W.1) who is the
injured and saw the accident in his evidence has unequivocally stated
that due to rash and negligent driving on the part of the driver of the
offending bus, the bus dashed against a road side tree and capsized.
As a result of which he sustained severe injuries on his person.
Initially he was taken to Durgachak S.D. Hospital on 26.11.2007 and
therefrom he was shifted to Medical College & Hospital, Kolkata where
he was admitted for medical treatment from 27.11.2007 to
08.12.2007. His spinal cord was operated. Thereafter, he was treated
by different private doctors and his treatment is still going on. He has
obtained a disablement certificate to the extent of 50% from Haldia
S.D. Hospital. Nothing has been elicited from the cross-examination of
this witness to discredit the evidence as adduced by him in chief.
Rather the victim in cross-examination has deposed that at present
he has partial paralysis on his right hand and right leg.
13. Therefore, I agree with the finding of the learned Tribunal that due
to rash and negligent driving on the part of the offending vehicle the
victim met with the accident and he sustained severe injuries on his
person resulting in partial disablement. P.W. 2 Dr. Sandipan
Bhattacharya who was one of the members of Medical Board has
deposed that the Medical Board issued handicap/disablement
certificate to the victim Abul Hossian @ Sk. Abul Hosen after
examining him and on consideration of the medical papers. This
witness has proved a disablement certificate which has been marked
as Exhibit 11. It appears from the disablement certificate that the
disablement of the victim is to the extent of 50%. Since no appeal or
cross-objection has been filed by the Insurance Company, the findings
recorded by the learned Tribunal remain unchallenged. Under such
factual scenario, it can safely be held that due to the accident as
above the victim sustained severe injuries resulting in disablement to
the extent of 50%.
14. It appears from the judgment of the learned Tribunal that the
learned Tribunal has held that the income of the victim was
Rs.4,500/- per month from his tailoring and garment business. But,
from the evidence on record I do not find any iota of document
admitted in evidence which will evince that the victim used to earn
Rs.4,500/- per month. However, Mr. Krishanu Banik, learned lawyer
appearing for the appellant/claimant fairly submits that his client
could not prove that he used to earn Rs.4,500/- per month by
documentary evidence. But, learned lawyer points out that in view of
a catena of decisions of this Hon'ble Court, the income of a workman
or labourer shall be held to be of Rs.3,000/- per month upto the year
2010 in the absence of any documentary evidence. Learned Advocate
appearing for the Insurance Company does not contend the
submission of the learned lawyer for the appellant on assessing the
monthly income of the victim as of Rs.3,000/-. Therefore, it is held
that the monthly income of the victim before the accident was
Rs.3,000/- per month.
15. Mr. Banik, learned lawyer submits that the learned Tribunal erred
in not making any assessment on the count of future prospects.
Placing reliance on a decision in the case of Jagdish-Vs-Mohon & Ors
reported in AIR 2018 SC 1347 and decision in the case of Pappu
Deo Yadav-Vs-Naresh Kumar and Ors reported in AIR 2020 SC
4424 learned lawyer submits that the Hon'ble Apex Court in these
two decisions has held that on sustaining disablement by an injured
person of a road traffic accident, future prospects would be allowed to
him following the decision rendered in the case of National
Insurance Company Limited -Vs- Pranay Sethi and Ors reported
in (2017) 16 SCC 680.
16. On reading of the decisions reported in AIR 2018 SC 1347
(Jagdish-Vs-Mohon & Ors) and AIR 2020 SC 4424 (Pappu Deo
Yadav-Vs-Naresh Kumar and Ors) I find that the Hon'ble Apex
Court has held that an injured afflicted with disability is entitled to
future prospects following the decision of Pranay Sethi (supra).
17. But, the learned Tribunal erred in not allowing any compensation
to the victim on the count of future prospects. As pointed out by
learned lawyer appearing for the Insurance Company, the learned
Tribunal wrongly adopted the multiplier 16 instead of multiplier 15.
At the time of the accident the victim was aged about 39 years. In
terms of paragraph 42 of the decision in the case of Sarla Verma and
Ors -Vs- Delhi Transport Corporation and Ors reported in (2009) 6
SCC 121 multiplier 15 will be adopted for the age group of 36 years to
40 years.
18. The Hon'ble Apex Court in the decision in the case of Raj Kumar-
Vs- Ajay Kumar & Anr reported in (2011) 1 SCC 343 has held that
no amount will be deducted towards the personal and living expenses
in case of an injured afflicted with permanent or partial disability. The
claimant is entitled to get compensation on the count of non-
pecuniary damages, but the learned Tribunal grossly erred in not
awarding such compensation. Learned lawyer submits that the
claimant is entitled to a compensation of Rs.1,00,000/- on such
count. In support of his submission learned lawyer has cited a
decision in the case of R.D. Hattangadi-Vs- M/s. Pest Control (India)
Pvt. Ltd reported in AIR 1995 SC 755. The Hon'ble Apex Court at
paragraph 9 of the decision has held as under:
"9. Broadly speaking while fixing an amount of compensation
payable to a victim of an accident, the damages have to be assessed
separately as pecuniary damages and special damages. Pecuniary
damages are those which the victim has actually incurred and which
is capable of being calculated in terms of money; whereas non-
pecuniary damages are those which are incapable of being assessed
by arithmetical calculations. In order to appreciate two concepts
pecuniary damages may include expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of profit upto the date of trial;
(iii) other material loss. So far non-pecuniary damages are concerned,
they may include (i) damages for mental and physical shock, pain
suffering, already suffered or likely to be suffered in future; (ii)
damages to compensate for the loss of amenities of life which may
include a variety of matters i.e. on account of injury the claimant may
not be able to walk run or sit; (iii) damages for the loss of expectation
of life, i.e. on account of injury the normal longevity of the person
concerned is shortened; (iv) inconvenience, hardship, discomfort,
disappointment frustration and mental stress in life. "
19. As prophetically stated at paragraph 10 in R.D. Hattangadi
(supra) it is the truth for all time to come that no amount of
compensation can restore the physical frame of the victim and that is
why it has been said by Courts that whenever any amount is
determined as the compensation payable for any injury suffered
during an accident, the object is to compensate such injury so far as
money can compensate because it is impossible to equate the money
with the human sufferings or personal deprivations. Money cannot
renew a broken and shattered physical frame.
20. Admittedly, there is no rule of thumb to determine the
compensation on non-pecuniary damages. In a catena of decisions the
Hon'ble Supreme Court as well as this Court has assessed the
compensation on non-pecuniary damages considering the facts and
circumstances of each case. In such context a decision of this Court
in the case of Anamika Mondal -Vs- United India Insurance Co.
Ltd. and another reported in 2010 ACJ 65 may be referred. In this
decision an assistant school teacher of a secondary school who
suffered 50% permanent disablement, but did not lose her job was
given compensation of Rs.1,00,000/- towards pain and suffering. This
High Court rendered this decision placing reliance on the principles
as enunciated by the Hon'ble Apex Court at paragraphs 9 and 10 in
R.D. Hattangadi (supra). Bearing in mind the principles enunciated
by the Hon'ble Apex Court in the decision in the case of R.D.
Hattangadi-Vs- M/s. Pest Control (India) Pvt. Ltd reported in AIR
1995 SC 755 and the quantum of compensation given by this High
Court to a lady teacher afflicted with disablement to the extent of 50%
I think that the victim who has suffered disablement to the extent of
50% should be awarded compensation on the count of pains and
sufferings. As directed by the Hon'ble Apex Court in the case of
Pranay Sethi (supra) compensation on the count of future prospects
to the extent of 40% would be added since the victim then aged about
39 years was a self-same employed person. I think that it will be wise
if compensation of Rs.1,00,000/- is given to the claimant on the count
of non-pecuniary damages i.e. pains and suffering.
21. Therefore, in view of the findings as recorded above, the award
passed by the learned Tribunal needs modification in the following
manner.
1) Monthly Income to be assessed= Rs. 3,000/-
2) Annual Income to be assessed= Rs. 36,000/-
( Rs.3000 x 12)
3) Future Prospects to be assessed at the = Rs. 14,400/-
rate of 40%
4) Total= Rs. 50,400/-
5) 50% loss of income due to suffering= Rs.25,200/-
from disablement to the extent of 50%
6) Adopting Multiplier 15 as per= Rs. 3,78,000/-
the age of the victim of 39 years
(Rs.25,200 x 15)
7) Medical Expenses incurred by the
victim= Rs.17,362/-
8) Non-pecuniary damages i.e. pains
and sufferings= Rs.1,00,000/-
9) Total compensation comes to= Rs.4,95,362/-
22. Admittedly the claimant has already received compensation of
Rs.3,05,362/- as awarded by the learned Tribunal.
23. Therefore, the claimant is entitled to get further compensation of
Rs.1,90,000/-. The claimant is also entitled to get interest at the rate
of 6% per annum on the awarded amount of money.
24. Therefore, the appeal merits success and accordingly the appeal is
allowed on contest against the respondent No.1 and ex parte against
the respondent No.2.
25. The respondent No.1 is directed to pay Rs.1,90,000/- as further
awarded amount of money and to pay interest at the rate of 6% per
annum on this amount of money from the date of filing of the claim
application on 05.01.2008. The respondent No.1 is further directed to
pay interest at the rate of 6% per annum on the awarded amount of
Rs.3,05,362/- from the date of filing of the claim application till this
amount was deposited with the learned Tribunal.
26. The respondent No.1 is directed to deposit the awarded amount of
money and the interest as indicated above with the learned Registrar
General, High Court, Calcutta within five weeks from date.
27. After the awarded amount is deposited the learned Registrar
General shall release the money to the claimant after being satisfied
with his identity.
28. With the aforesaid direction the appeal and connected application
if any stand disposed of.
29. No order as to costs.
30. Send down the LCR along with a copy of this judgment to the
learned Tribunal for information.
31. Urgent certified website copies of this judgment, if applied for, be
given to the parties upon compliance with all requisite formalities.
(Rabindranath Samanta,J.)
