Apurba Bhowmick vs Oriental Insurance Co. Ltd. & Anr
2023 Latest Caselaw 5560 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 25.08.2023
  SL No.5
Court No. 551
    Ali


                              FMA 678 of 2011

                          Apurba Bhowmick
                                 Vs.
                  Oriental Insurance Co. Ltd. & Anr.

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

                 Ms. Gopa Das Mukherjee
                                    ........for the Insurance Co.

                          The instant appeal is preferred against the

                judgment and award dated 23rd June, 2010 passed

                by the learned Judge, Motor Accident Claims

                Tribunal, 7th Court, Alipore in MAC Case No. 465 of

                2003.

                          The brief fact of the case is that the present

                appellant filed one application before the learned

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

                getting    compensation    on   the   ground   that   he

                sustained bodily injury on 6th of February 2001 by a

                road traffic accident due to rash and negligent

                driving of the driver of the offending vehicle duly

                insured under the policy of the insurance company-

                respondent.

The insurance company has contested the

matter before the learned tribunal and after hearing

both the parties. The learned tribunal has awarded

a sum of Rs. 2,46,549/- in favour of the claimant.

Being aggrieved by and dissatisfied with the

impugned award the claimant has preferred this

appeal for enhancement of the award.

       Learned           advocate      for    the   appellant

submitted        that    there   are    three   grounds    for

enhancement of the award. Firstly; the learned

tribunal has only awarded Rs. 5,000/-towards the

pain and suffering it is erroneous. The

compensation towards the pain and suffering should

be at least Rs.1,00,000/-. Secondly, the learned

tribunal has failed to appreciate the damages

suffered by the claimant/appellant on non-

pecuniary head. At least Rs.1,00,000/- can be

awarded on such heads. Thirdly, he also submitted

that the claimant is entitled to get the future

prospect according to the direction of the Hon'ble

Apex Court passed in Pranay Sethi.

Learned advocate for the insurance company

submitted before this court that the impugned

award passed by the learned tribunal regarding the

pain and suffering is correct. There is no error by

the learned tribunal in passing the impugned award.

It would be revealed from the evidences on record

that the injury suffered by the claimant is multiple

facture at his left leg. The said facture was duly

treated by the Doctor and now the claimant is a fit

person. Initially, it was advised for working with the

help of the crutch. Subsequently, when the claimant

appeared before the Doctor i.e. PW-3 there is no

such indication of using such crutch, that is why,

the claimant is not entitled to get any further

compensation towards the pain and suffering. He

specifically argued that the learned tribunal has

considered the functional disability of the claimant

to be 30% on the basis of the physical disability but

considering the present physical condition of the

claimant the percentage for disability should be less

than 30%.

Heard the learned advocate perused the LCR

as well as the paper books it appears to me that the

insurance company has not filed any cross objection

nor preferred any appeal against the award that is

why the point raised by the learned advocate for the

insurance company regarding the functional

disability of the claimant cannot be entertained at

this stage.

It is true, that the claimant has suffered an

accident for which he was admitted in the Hospital.

Operation was done and he was discharged from the

Hospital after 7 days of the admission. After such

accident it is proved that he has suffered some

degradation of his service and he was posted to the

Calcutta wherein he was provided a job of less

laborious. It is the submission of the learned

advocate for the claimant that due to such loss of

quality of job he used to earn less. The loss of job

and its prosperity is within the pecuniary damages

which was properly calculated by the learned

tribunal and which was not made a ground in this

appeal. Thus, this cannot be considered at this

stage.

In considering the future prospects,

according to the direction of the Hon'ble Apex Court

in Pranay Sethi. The present appellant was within

the age group of 50-60 years. Thus 15% of his

actual salary shall be added towards the future

prospects. According to the direction of the Hon'ble

Apex Court passed in R.D.Hattangadi the pain and

suffering includes the head of non pecuniary

damages. The non pecuniary damages includes the

damages to compensate for loss of amenities of life

including the damages for mental and physical

shock. Thus, in my view, the pain and suffering

would come under the head of non pecuniary

damages.

In this case the learned tribunal has

awarded Rs. 5,000/- towards the pain and suffering.

After considering the submission of the learned

advocate for the appellant also after considering the

submission of learned advocate for the respondent

insurance company. It appears to me that the pain

and suffering awarded by the learned tribunal is

not appears to be justified. The learned tribunal

should have awarded at least Rs.50,000/-towards

the non-pecuniary damages including pain and

suffering. Considering the same the award passed

by the learned tribunal need be modified.

Thus, the just and proper compensation of

this case is as follows:-

Calculation of compensation

1.Monthly Income ...............................Rs.6,226/-

2.Annual Income ...(Rs.6,226/- X 12)......... Rs.74,712,/-

3. 30% Gross Income.......................Rs.22,413.60/-

4. 15% future prospect..............................Rs.3,362/-

Total Rs. 25,775.60/-

5. Multiplier apply 11 ( Rs.25,775.60/-X 11)...Total Rs.............Rs.2,83,531.60/-

6. Pain and suffering including other's non-pecuniary heads...............Rs.50,000/-

6. Add: Medical Exp. .............................Rs.15,000/- Loss of income...................................Rs.5,000/-

Rs. 3,53,531.60/-

7. Less Tribunal already awarded... Rs.2,71,549.00/-

....Rs.81,982.60/-

The insurance company is directed to pay

the balance amount of compensation to

Rs.81,982.60/-to the claimant alongwith interest @

6% per annum from the date of filing of the claim

application i.e. from 9.9.2003.

The insurance company is further directed

to pay the 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 claimant is at liberty to receive the

same according to the prevalent Rules .

The instant FMA 678 of 2011 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.)