Sri Goutam Roy vs The India Assurance Co. Ltd. & Anr
2023 Latest Caselaw 5058 Cal

                        IN THE HIGH COURT AT CALUTTA
                           Civil Appellate Jurisdiction
 16.08.2023
  SL No.49
Court No. 551
   Ali


                           F.M.A. 2191 of 2016

                           Sri Goutam Roy
                                    Vs.
                   The India Assurance Co. Ltd. & Anr.

                  Mr. Krishanu Banik
                                        ...for the appellant-claimant.

                  Ms. Sayanti Santra
                                ....for the respondent-Insurance Co.

The instant appeal has been preferred against

the judgment and award dated 15th day of July, 2015

passed by learned Judge, Motor Accident Claims

Tribunal, Dakshin Dinajpur at Balurghat in M.A.C.

Case No. 197 of 2013.

The brief fact of the case is that the present

claimant has sustained injury in a road traffic

accident on 30th July, 2012. After such injury he was

admitted to the Hospital and treated there for quite

some time as an indoor patient. The disability

certificate was issued by the Government Hospital

with a finding that the claimant is suffering 40%

disability. On the basis of such disability, the claim

application was filed before the learned tribunal

under Section 166 of the M.V. Act for getting

compensation. The owner of the offending vehicle did

not contest the claim application. The insurance

company has contested the claim application by filing

written statement. During the course of trial, the

claimant appeared as PW-1, the one eye witness

appeared as PW-2, the staff of the Hospital appeared

as PW-3 and two doctors appeared as PW-4 and PW-

5. After considering the entire materials on record,

the leaned tribunal has awarded a sum of Rs.

50,000/- as compensation in favour of the claimant.

Being aggrieved by and dissatisfied with the

said judgment the present claimant being the

appellant preferred this appeal for enhancement of

the award.

Learned advocate for the appellant submitted

before this court that the leaned tribunal has

committed error in deciding the issues before him.

The 40% disability has been clearly stated in the

disability certificate but the learned tribunal has not

considered the same and awarded a lumpsum

amount of Rs.50,000/-. The learned tribunal should

have awarded compensation on the basis of structure

formula. He cited a decision of Hon'ble Supreme

Court in R.D. Hattangadi reported in 1995 ACJ

366. He argued that the claimant has suffered

immense mental pain and he is entitled to get the

non pecuniary damages as observed by the Hon'ble

Supreme court.

The learned advocate for the insurance

company submitted that the impugned judgment

passed by the learned tribunal suffered no illegality,

the disability certificate issued in favour of the

present claimant is not beyond doubt the re-

assessment of the Superintendent of the concerned

Hospital also illegal. The disability certificate was not

issued by following the proper procedure laid down in

the law. The claimant can walk independently, now

he is a fit person so he is not entitled to get any

compensation according to the structure formula.

Heard the learned advocate perused the

materials on record on perusing the impugned

judgment it appears to me that the learned tribunal

has not believed the re-examination and review by the

Superintendent of the District Hospital, Dakshin

Dinajpur at Balurghat. It is the observation of the

learned tribunal that at the time of re-examination or

review the claimant must have not appeared or no

board of Doctors were formed to verify his disability

after one year as observed in the Exhibit-10 itself.

Learned advocate for the insurance company

argued that the Register which was exhibited at

Exhibit-9 does not reflect the issuance of disability

certificate or the name of the Doctor who was present

at the Board.

The Exhibit-9 is the page of the Register of

issuance of disability certificate. The page relates to

the number of 198 which was appearing in the

disability certificate. The number 198 dated

14.02.2014 is in respect of a disability certificate

issued by Hospital to Goutam Roy. The Register is

only maintained to note the issuance of disability in

respect of any person. I also perused the LCR wherein

I find the Exhibit-10 in original it appears to me that

the disability certificate issued in favour of the

claimant Goutam Roy on 14.02.2014 cannot raise

any doubt. The Register of such disability certificate

i.e. Exhibit-9 also appears to me proper.

Considering the re-examination and review of

the Superintendent, District Hospital it appears to me

that the review and re-examination was itself create

doubt by virtue of evidence of PW-5. Thus, I find no

illegality in the observation of the learned tribunal to

raise a doubt in respect of the review of the present

appellant-claimant by the Superintendent on

27.02.2015. In this case Rs.50,000/- lumpsum

amount was awarded in favour of the claimant. The

claimant is suffering the disability which is partial in

nature. The evidence of claimant itself shows he can

walk independently without any physical hinderance.

Considering the same, I find the disability as

appears to be partial is now must have cured. The

dislocation of right angle may not create such

disability which can prohibit the present claimant do

his duties.

In considering the view of the Hon'ble Supreme

Court in R.D. Hattangadi I think the claimant was

suffered pain and suffering for more than 10 days. He

must have faced numerous mental and physical

oppression throughout the period of his recovery.

Considering the same, the claimant is also entitled to

get compensation towards the non-pecuniary

damages as observed by the Hon'ble Supreme Court

in R.D. Hattangadi. Thus in my view, the claimants

are also entitled to get Rs. 50,000/- more towards the

non pecuniary damages. The claimant has already

received Rs. 50,000/- from the office of the learned

tribunal. The insurance company is directed to pay

the balance compensation amounting to Rs. 50,000/-

to the claimant alongwith interest @ 6% per annum

from the date filing of this application i.e. from

30.11.2013 through the office of the learned Registrar

General, High Court, Calcutta within eight weeks

from the date of passing of this order.

LCR are returned back immediately.

The instant FMA is disposed of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)