Arup Bag vs The New India Assurance Company ...
2023 Latest Caselaw 4590 Cal

  Ct. 551
Item No.07
01.08.2023
(Suvendu)


                              FMA 236 of 2010


                                Arup Bag
                                    Vs.
                The New India Assurance Company Ltd. and Anr.


                           Mr. Krishanu Banik
                           Mr. Tathagata Banik
                           Ms. Jaita Ghosh
                                              ...for the petitioner

                           Mr. Animesh Das
                                        ........for the respondent

The instant appeal is preferred against the

judgment and award dated 22 nd April, 2009 passed

by the learned 3rd Motor Accident Claims' Tribunal,

Howrah in M.A.C. Case No. 498 of 2003.

The appellant/ claimant sustained a road

traffic accident on 15th April, 2003. He suffered

injury and became disable for which he preferred

an application before the learned Tribunal under

Section 166 of the M.V.Act. Prior to filing of such

application, he also filed another application under

Section 140 of the M.V.Act wherein Rs. 25,000/-

was awarded by the Tribunal in his favour.

The Insurance Company contested the

matter before the learned Tribunal by filing written

statement. The claimant himself appeared before

the learned Tribunal as PW 1. One eye-witness

was appeared as PW 2. Some documents

including the Disability Certificate was produced

and exhibited by the learned Tribunal. The

Insurance Company adduced no evidence. After

hearing the parties, learned Tribunal has passed

the impugned award. By allowing the application

of the claimant, learned Tribunal has assessed the

compensation to the tune of Rs. 15,000/- towards

the medical treatment and Rs. 10,000/- towards

pain and sufferings, which is in total Rs. 25,000/-.

It was further ordered that as the claimant had

already received a sum of Rs. 25,000/- in an

earlier proceeding under Section 140 of the M.V.

Act, only interest part @ 8% per annum from the

date of filing of the application has to be paid by

the Insurance Company. The direction of the

Tribunal was complied with by the Insurance

Company and the Insurance Company deposited a

cheque of Rs. 3,950/- before the learned Tribunal

and the same was received by the

claimant/appellant.

The appellant is before this Court with the

grounds that the impugned award passed by the

learned Tribunal is baseless and erroneous.

Learned advocate appearing for the

appellant/claimant submits that the learned

Tribunal has not considered the facts and

circumstances of the instant case and the

compensation awarded by the learned Tribunal is

not just and proper. He argues that the learned

Tribunal has disbelieved the Disability Certificate

issued by the Doctor of Howrah Hospital. Exhibit

6 is shown to this Court. He submits that in the

said exhibit 50% disability of the appellant was

mentioned but the learned Tribunal has not

believed the same at all. He further submits that

the learned Tribunal has not assessed any amount

of compensation towards the non-pecuniary

damages. He cites a decision of the Hon'ble

Supreme Court wherein the Hon'ble Supreme

Court has specifically observed the principle of

non-pecuniary damages. He also submits that in

the instant case, the monthly income of the

claimant can be assessed as Rs. 3000/- and he is

entitled to get the compensation according to

Structure Formula opined by the Hon'ble

Supereme Court in Sarala Verma and Pranay

Shetty.

Learned advocate appearing for the

Insurance Company raised objection to the

submissions made by the learned advocate of the

claimant and points out the examination of PW 1

before the learned Tribunal wherein he admitted

that no operation or plastering was done on his

person after the accident. Only the injury was

managed by putting bandage. He again submits

that exhibit 6/ Disability Certificate issued by the

Doctor of Howrah Hospital is not beyond doubt.

Only bandage was used for management but in

that score how 50% disablement can be assessed

by the Doctor. He also cites observations of the

learned Tribunal on that score wherein the learned

Tribunal is of opinion that the Doctor was not

examined and was also not allowed to be cross-

examined by the Insurance Company and thus,

the 50% disability of the claimant is not believable.

In support of his contention, he cites relevant

provisions of Sections 60, 100 and 104 of the

Indian Evidence Act. He also cites one decision of

the Hon'ble Supreme Court reported in (2001) 3

SCC 208 in respect of burden of proof under

Sections 101 and 102 of the Evidence Act. He also

cites a decision of Allahabad High Court reported

in AIR 1989 Allahabad 133 in support of the

admissibility of the expert evidence and a decision

reported in AIR 1985 NOC 132 (Punj. & Har.) in

respect of necessity of Local Commissioner

appearing in witness box for proving his report.

Heard learned advocates and perused the

materials on record.

Learned advocate for the Insurance

Company places reliance upon the specific proof of

a document. It is the contention of the learned

advocate for the Insurance Company that the

Exhibit 6, this is the Disability Certificate, was not

specifically proved before the learned Tribunal and

thus, the learned Tribunal has rightfully

disbelieved the said Disability Certificate.

By virtue of Section 60 of the Evidence

Act, it is the cardinal principle of law that the

evidence should be direct, that is, if one person

has seen a fact that should be the evidence of that

person. In that score he points out the opinion

portion of Section 60 of the Evidence Act. It

relates to the ground on which the opinion is held

by a particular person. It is the dictum of Section

60 that when opinion of a person is the fact in

issue then the person who formed the opinion

must appeared before the Court to prove that it is

the opinion of that person.

Regarding the burden of proof, Sections

101 and 104 of the Indian Evidence Act provides

that when the burden appears initially upon the

plaintiff or the prosecution and when the burden

can be shifted and how the burden is lies upon the

person who wants to prove a fact before the Court

of law. It is true that specific rule of law to prove a

fact is not applicable in cases under the Motor

Vehicles Act. The procedure of the M.V.Act before

the learned Tribunal is summary in nature.

Then also, if I concentrate upon the

submissions of the learned advocate for the

Insurance Company, it is to be noted that Section

35 of the Indian Evidence Act makes it clear

regarding relevancy of entry in public record made

in performance of any official duty. So it is the

relevant fact which must noticed by a court of law

that when a person is acting in his official duty

and made any comment or opinion upon the

public document where by law he is duty bound to

make such comment and made entry in the public

record, that entry and comment is a relevant fact

and reliable before the Court of law. In such

analogy, the exhibit 6 which originally appears in

the LCR, issued by the Board of Doctors of Howrah

Hospital, contains original signatures and also

contains the seal of the relevant hospital.

Initially burden is upon the claimant to

prove the document and the claimant has

produced the original document before the learned

Tribunal and this appears to be a primary

evidence which produced in original. On

producing such primary evidence, the law to prove

such document that is the initial burden upon

claimant under Section 101 of the Evidence Act,

had specifically complied with by the claimant.

Thereafter the burden shifted upon the Insurance

Company to contradict the same document

(Exhibit 6); but it appears from the materials on

record and the LCR that Insurance company has

not raise any objection at the time of exhibiting the

document or that, the Insurance Company has not

called any doctor or any staff of the Howrah

Hospital to contradict the evidentiary value of

Exhibit 6. Considering the entire aspect of the

matter, in my view, the submissions of the

Insurance Company regarding non-admissibility of

the Disability Certificate is appears to be not good

proposition of law.

After considering the other materials in

hand, it appears to be that the learned Tribunal

surprisingly has allowed all the issues in favour of

the claimant but as the exhibit 6 was doubtful

before the Tribunal so the structure formula as per

the judgment of the Hon'ble Supreme Court in

Sarala Verma and Pranay Shetty was not applied

and only a lumpsum amount of Rs. 15000/-

towards the medical treatment and Rs. 10,000/-

towards the pain and sufferings was awarded.

Exhibit 6 shows that the claimant

suffered from "painful ROM(L) shoulder due to

RTA" and his disability was assessed as 50%. It

appears that the Certificate was issued on

17.04.2004, i.e. after one year of the accident and

then also the claimant was suffering pain in the

shoulder.

It appears from Discharge Certificate

(Exhibit 7), the Clavicle (L) bone of the appellant

was fractured due to such accident. It is true that

no operation is possible when the clavicle bone

was fractured and it can only be managed by

bandage. It heals automatically, sometime

discomfort persists for lifelong if not managed

properly.

The Hon'ble Supreme Court in Jagdish

Vs. Mohan has specifically guided that the

physical disability of any person cannot be

equated with the functional disability to assess the

compensation. In this case, claimant stated his

occupation as business wherein he used to earn

Rs. 4000/- per month at the time accident.

Neither document of business was exhibited nor

any evidence was adduced regarding the nature of

his business. It is true that the patient is

suffering from some pain in shoulder which must

have loosen earning capacity of the claimant.

Considering the same in the instant case, the

disability is assessed to be 20%.

Considering the entire facts and

circumstances of the case and considering the

relevant provisions of law, at appears to me that

the learned Tribunal has committed error for not

awarding compensation according to structure

formula guided by the Hon'ble Supreme Court.

Thus, it is necessary to recast the award of

compensation by modifying the judgment and

order passed by the learned Tribunal.

The alleged accident happened in the year

2003. It is the general practice of this Court when

the accident happened before 2010, in absence of

any reliable document regarding proof of income of

the claimant, the monthly income is adopted as

Rs. 3000/- per month. Thus, in this case to

ascertain the just and proper compensation,

monthly income of the complainant would be

assessed as Rs. 3000/- and accordingly, the yearly

income would be Rs. 36,000/ (Rs. 3000/- x 12).

The claimant is also entitled to future

prospects to the tune of 40% of the income

according to the directions of the Hon'ble Supreme

Court passed in Pranay Shetty which is Rs.

14,400/-. Thus, total yearly income comes to Rs.

50,400/-. 20% of the said amount comes to Rs.

Rs. 10,080. The applicable multiplier in this case

is 15 considering the age of the claimant to be 38

years at the time of accident. After multiplying the

multiplier, the compensation comes to Rs. 1,

51,200/-. The claimant is also entitled to get non-

pecuniary damages to the tune of Rs. 50,000/-.

Thus, the total compensation comes to Rs.

2,01,200/-. The claimant has already received Rs.

28,950/-. So the balance amount comes to Rs.

1,72,250/-.

The Insurance Company is directed to pay

the balance amount of compensation along with

6% interest per annum from the date of filling of

the claim application. The Insurance Company is

further directed to deposit the amount of

compensation within eight weeks from the date of

passing of this order with the office of the learned

Registrar General, High Court Calcutta. On such

deposit, the appellant/claimant is at liberty to

receive the same subject to ascertainment of

payment of requisite court fees.

FMA 236 of 2010 is disposed of in terms

of the above.

Connected application, if any, is also

disposed of.

Urgent photostat certified copy of this

order, if applied for, be given to the parties on

usual undertakings.

(Subhendu Samanta, J.)