Calcutta High Court (Appellete Side)
Laxmikanta Maity vs New India Assurance Company Ltd. & ... on 25 November, 2022
18
25.11.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 463 of 2013
with
IA No. CAN 1 of 2013 (CAN 8257 of 2013)
with
CAN 2 of 2015 (CAN 1781 of 2015)
(Applications not in the file)
Laxmikanta Maity
Vs.
New India Assurance Company Ltd. & Anr.
Mr. Krishanu Banik
... For the appellant/claimant
Mr. Parimal Kumar Pahari
... For the respondent no1/Insurance Co.
This appeal is directed against the judgment and
award passed on 8th August, 2012 by the learned Judge,
Motor Accident Claims Tribunal, 1st Court, Tamluk, Purba
Medinipur, in MAC Case No.64 of 2008/335 of 2007 under
Section 166 of the Motor Vehicles Act, 1988 wherein
compensation was awarded to the tune of Rs.2,80,800/-.
On 6th September, 2007 at about 6.00 a.m. the
appellant/claimant was going towards Mecheda through
left flank of the road of NH-41. When he reached near
Vitaragar, suddenly a Bus bearing registration no.WB-
29/3479 coming from the side of Nandakumar with high
speed and without blowing any horn dashed the claimant.
As a result, he sustained fracture injury on both the legs.
He had to be admitted in the hospital and nursing home
2
for a considerable period of time. Even he had to go to
CMC Vellore for treatment for the period from 9th October,
2007 to 19th October, 2007 and incurred a huge
expenditure. It is alleged in the claim petition that the
accident took place due to rash and negligent driving of
the driver of the Bus and at the time of accident, the
claimant, being a man of 48 years, used to earn
Rs.3,000/- per month. In the aforesaid view of the matter,
the appellant/claimant filed the claim petition with a
prayer for compensation to the tune of Rs.5,00,000/-.
The respondent no.1/New India Assurance
Company Limited contested the claim petition only by
filing written statement denying all material allegations
made in the claim petition contending, inter alia, that the
victim was solely responsible for the accident and the
Insurance Company is not liable to pay any compensation
to the claimant.
In course of trial, two witnesses were examined,
namely, the victim himself as PW-1 and one Medical
Officer attached to Tamluk District Hospital as PW-2. In
course of evidence, PW-1 narrated all the incident while he
sustained injury by the involvement of negligent driving of
the Bus. He stated that he was 48 years of age at the time
of accident and used to earn Rs.3,000/- per month, being
a Rickshaw Pullar.
In course of evidence, certified copy of First
Information Report, charge sheet, seizure list, injury
3
report, referral card, voters identity card and insurance
policy were admitted in evidence as Exhibit 1 to 7.
From the evidence of PW-1, it appears that the
medical expenditure incurred by him was Rs.1,50,000/-
but he had lost some of the medical bills.
From the record, it appears that the appellant/
claimant filed a good number of medical vouchers before
the learned Tribunal but those documents were not
admitted in evidence.
PW-2, being a Medical Officer attached to Tamluk
District Hospital came to Court and proved the disability
certificate showing disability of the claimant to the extent
of 60%.
Disability certificate was admitted in evidence as
Exhibit-6.
After considering the evidence on record, the
learned Tribunal granted award of Rs.2,80,800/- after
assessing monthly income of Rs.3,000/- per month and
also relying on the 60% disability.
Mr. Krishanu Banik, learned advocate on behalf of
the appellant/claimant in course of argument has
submitted that the learned Tribunal did not consider the
future prospect, non-pecuniary damages and medical
expenses. In support of his argument, he submitted that
bunches of medical bills were produced before the learned
4
Tribunal showing the expenditure towards treatment of
the claimant. In support of the argument, he relied on a
decision of a Division Bench of this Court delivered on 29th
June, 2012 in FMA 967 of 2009 (Suresh Chandra
Panday @ Suresh Chand Panday v. The New India
Assurance Company Limited & Anr.).
Per contra, Mr. Parimal Kumar Pahari, learned
advocate appearing on behalf of the respondent no.1/
Insurance Company has submitted that the medical bills
have not been admitted in evidence so those documents
cannot considered.
So far as the accident by the involvement of the
Bus bearing registration no.WB-29/3479 is concerned, I
find that there is sufficient evidence in the record that on
6th September, 2007, the appellant/claimant sustained
serious injuries on his legs due to rash and negligent
driving of the offending Bus. The said incident was
reported to the Kolaghat Police Station. Accordingly,
Kolaghat Police Station Case No.152 of 2007 dated 11th
September, 2007 under Sections 279/337/338 of the
Indian Penal Code was started and ended with charge
sheet.
So far as the claim of the appellant/claimant is
concerned, the learned Tribunal did not consider the
future prospect and medical expenses as well as non-
pecuniary damages.
5
It is true that in case of disability to the extent of
60%, Court should take care of the trauma suffered by the
injured. In this case, admittedly, numerous document
showing expenditure towards treatment have been filed
before the learned Tribunal but those were not looked into
only on the ground of not exhibited.
As I have had the opportunity to go through those
medical bills and I find that most of the bills were issued
from CMC Vellore and the learned Tribunal should have
taken care of the situation that whether it was possible to
bring the witnesses from CMC Vellore to prove all those
bills. That apart, it cannot be overlooked that no treatment
was given to the claimant after accident where he
sustained severe fracture injuries. It cannot be presumed
that the claimant received treatment without any kind of
expenditure.
In the aforesaid view of the matter, I am of the
considered view that the appellant/claimant is entitled to
medical expenses and in view of the guidelines laid down
by the Hon'ble Apex Court, appellant/claimant is also
entitled to future prospect and non-pecuniary damages.
Therefore, I modify the award as follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Add: Future prospect (@ 25%) Rs. 9,000/-
-------------------
Rs. 45,000/-
60% Loss of earning capacity Rs. 27,000/-
(Rs.45,000/- x 60%)
Multiplier by 13 (Rs.27,000/- x 13) x 13
Rs.3,51,000/-
Add: Medical Expenses Rs. 98,083/-
Rs.4,49,083/-
Add: Non-Pecuniary Damages Rs.1,00,000/-
------------------
Total Rs.5,49,083/-
Less - Awarded by ld. Tribunal Rs.2,80,800/-
ENHANCEMENT Rs.2,68,283/-
For the reasons, it is seen that the
appellant/claimant is entitled to the total compensation of
Rs.5,49,083/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e. on 21st
November, 2007 till the deposit of the amount.
It is reported that the appellant/claimant has
already received Rs.2,80,800/- as awarded by the learned
Tribunal.
Accordingly, the respondent no.1/Insurance
Company is directed to deposit the enhanced amount of
Rs.2,68,283/- along with interest @ 6% per annum from
the date of filing of the claim petition, i.e. on 21st
November, 2007 till the deposit of the amount before the
office of the learned Registrar General of this Court, within
six weeks from the date of this order.
The appellant/claimant is entitled to withdraw the
balance award amount with interest, subject to payment of
additional ad valorem court fees on the amount of
Rs.49,083/- (Rs.5,49,083/- - Rs.5,00,000/-) before the
learned Tribunal.
The learned Registrar General will disburse the
amount to the appellant/claimant on proper identification.
With the above observation, the appeal, being FMA
463 of 2013, stands disposed of.
All pending applications, if there be any, stand
disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
