Calcutta High Court (Appellete Side)
(Pa.Rd) vs The New India Assurance Co. Ltd. & ... on 16 November, 2022
S/L No. 28
16.11.2022
FMA 1344 of 2012
Ct-297 Baren Rauth
(PA.RD) Vs.
The New India Assurance Co. Ltd. & Anr.
Mr. Ashique Mondal
Mr. Snehasis Jana
... for the Appellant.
Mr. Saibalendu Bhowmik
... for the respondent
Quantum of award in connection with Motor
Accident Claim Case No. 114 of 2006 dealt with
by Motor Accident Claims Tribunal, Additional
District Judge, 3rd Court, Paschim Medinipur,
has been challenging in this appeal.
On 21.08.2005 at about 10.30 a.m. the
claimant/injured was travelling in a bus bearing
no. 11-A/0063 proceeding towards Junput
through Contai bypass road with excessive high
speed and negligent manner, dashed a lorry
bearing no. W.M.G-6836 coming from the
opposite direction. In effect, several passengers
including the claimant sustained injury and
they were shifted to Contai Sub-divisional
Hospital and subsequently claimant had to
undergo treatment in Appollo Hospital, Chennai
and Orissa.
After the accident Contai PS NO. 188/2005
dated 21.08.2005 under Sections 279, 338 and
427 of Indian Penal Code was started and
charge sheet was submitted against the driver of
that bus.
According to claim application monthly
income of the claimant was Rs. 3,000/- per
month and he was aged 28 years. Accordingly,
he claimed Rs. 2,00,000/- as compensation.
OP/ owner of the bus did not contest the
case. OP/Insurance Company contested this
case by filing written statement denying all
material allegations of the claim petition
contending, inter alia, that accident took place
solely on the ground of rash driving of truck no
W.M.G-6836 and therefore respondent
Insurance Company is not liable to pay
compensation. In course of trial, claimant Sri.
Baren Routh examined himself as PW-1 and one
Laxmi Kanta Mondal claiming himself to be
member of the Medical Board issuing disability
certificate has been examined as PW-2. In
course of evidence, certified copy of FIR, Seizure
List, charge sheet, photocopy of Insurance
Policy, outdoor ticket and Voter ID Card were
admitted in evidence. It is not out of place to
mention here that the claimant, in course of his
evidence, filed a good number of medical
documents including purchase voucher of
medicine and receipt of Appollo Hospital
showing treatment cost but those documents
were not admitted in evidence. Ld. Tribunal,
after considering entire evidence on record,
returned his finding in favour of disability of
claimant to the extent of 80% and took the age
27 years from the Voters ID Card (exhibit 5).
Ld. Advocate appearing on the behalf of the
claimant assailed the judgment and award with
regard to notional income with reference to
observation of the Ld. Tribunal and Ld. Tribunal
also did not consider future prospect, non-
pecuniary damages and medical expenses.
Therefore, Ld. Advocate on the behalf of the
claimant/injured has prayed for enhancement
of compensation.
Per contra, Ld. Advocate appearing on behalf
of the Insurance Company has referred to cross-
examination of doctor (PW-2) and has tried to
convince this Court that PW-2 not being expert
in orthopedic subject matter proved the
disability certificate. He has further contended
that orthopedic surgeon issued the disablement
certificate but he has not examined in this case
to prove the disability certificate. From that
point of view, according to him, disability
certificate can not be relied upon. Ld. Advocate
on behalf of the Insurance Company has also
referred to the disability certificate and
submitted that there is 'chance of variation' of
percentage of disability subject to reviewing
after 10 years. Ld. Advocate on behalf of the
Insurance Company, submitted that due to
latches on the part of the claim petition could
not be disposed of in time.
In reply to this argument on the issue of
latches Ld. Advocate on behalf of the claimant
submits that on several occasion summons was
issued to Appollo Chennai and Orissa.
However, we are dealing with a case under a
beneficial legislation i.e. Motor Vehicles Act,
1988.
After going through the evidence of PW-1 and
exhibit 1 & 2, it is found that factum of accident
due to rash and negligent driving on the part of
the driver of the bus has been proved. It is seen
from the exhibit 2 that after investigation Police
submitted charge sheet against the driver of the
bus in connection with Contai PS case no.
188/2005 dated 21.08.2005 under Sections
279/338/427 of Indian Penal Code.
From the evidence of PW-1 and the medical
papers (though not marked as exhibit), I am
unable to come to any conclusion that claimant
was not treated in any hospital in spite of
suffering of disability to the extent of 80% as
has been proved by one the Dr. Laxmi Kanta
Mondal, one of the member of the Medical
Board issuing disability certificate (exhibit-6
and 6/1) in favour of the claimant.
With regard to income, Ld. Tribunal observed
as follows:
" I am not unmindful that the Claimant is an
able bodied person, aged about 27 years and
the person would earn Rs. 3,000/- per month
in view of the present market-rate.
But for want of proper evidence in the
matter of income, it can safely be said that it
is a fit case to apply notional income of Rs.
15,000/-."
In view of aforementioned contradictory
observation of the Ld. Tribunal, I am sorry to
subscribe the view of income per annum as Rs.
15,000/-. Keeping an eye to the minimum
wages as well as settled principle enunciated by
the Hon'ble Apex Court in catena of decisions, I
am of the view that income of Rs. 3,000/- per
month should be taken for considering
compensation.
After careful scrutiny of the disability
certificate I find that Medical Board constituted
in Midnapur Medical and Hospital, Paschim
Medinipur issued the disability certificate in
favour of claimant and one of the member of the
Board proved the certificate. Therefore, I can not
disbelieve the facts of issuance of disability
certificate which was issued on 02.02.2010. So
far as the argument on 'chance of variation' is
concerned, I am of the view that 'chance of
variation' can not be considered as 'variation'
at this stage, by way of reducing percentage of
disability unless contrary is proved.
Thus, I determine the compensation as
follows:
Annual Income (Rs. 3,000 x 12) : 36,000.00
Add: Future Prospects @ 40% : 14,000.00
______________
50,400/-
Disability 80% of 50,400 : 40,320.00
Multiplier:- '17' (40,320 X 17) : 6,85,440.00
Non- Pecuniary Damages : 1,00,000.00
Medical expenses : 50,000/-
Total Award : 8,35,440.00
So far as interest is concerned it is found from
the record that though injured filed calim petition
on 27.02.2006 but deficit court fees was filed on
07.08.2008.For such delay of two years injured can
not claim interest.
It is reported that claimants has already
received Rs. 2,16,000/- from the Insurance
Company.
Therefore, claimant is entitled to balance amount
of Rs. 6,19,440/- along with interest from the date
of filing deficit court fees i.e. 7.8.2008 till deposit of
the amount for payment, subjected to payment of
ad velorem Court fees on the balance amount.
Respondent/The New India Assurance Company
Ltd. Is directed to deposit the balance amount of
Rs. 6,19,440/- along with interest @ 6% per
annum from 07.08.2008 till deposit of the amount
before office of the Ld. Registrar General, within 6
(six) weeks from the date of this order.
Ld. Registrar General is requested to disburse
the amount to the claimant on proper identification
and proof.
Let the records of the tribunal along with a copy of
this order, be send back at once.
F.M.A 1344 of 2012 is being disposed of without
any order as to cost.
All pending application, if there be any, stand
disposed of.
Urgent Photostat certified copy of this order, if
applied for, be supplied to the parties upon compliance
with all requisite formalities.
(Bibhas Ranjan De)
