Sarwan @ Sarban Kumar Roy vs National Insurance Co. Ltd. & Anr
2023 Latest Caselaw 5625 Cal

28.8. 2023
 item No.2
n.b.
ct. no. 551               FMA 1340 of 2008
     with
                           CAN 2 of 2022

                    Sarwan @ Sarban Kumar Roy
                                Vs.
                National Insurance Co. Ltd. & Anr.


              Mr. Krishanu Banik,
              Mr. Uday Sankar Chattopadhyay,
              Ms. Trisha Rakshit,
              Ms. Aishwarya Datta,
                               .....for the appellant.

              Mr. Rejesh Singh,
                                  .... For the respondent.

In Re. CAN 2 of 2022

This is an application for substitution filed by the

claimants. It is the submission of the learned advocate for

the appellant that the sole appellant has expired during

the pendency of the instant appeal. The present

claimants being the son and daughter of the appellant

filed this application for substitution.

Heard the learned advocate for the appellant.

Accordingly, the application being CAN 2 of 2022 is

disposed of with a direction that the applicant of CAN 2 of

2022 be made party as appellant at the place of sole

appellant of this appeal.

Department to do the necessary correction for Memo

of the Cause Title of the appeal accordingly.

FMA 1340 of 2008

This instant appeal has been preferred against the

judgment and award dated 5th day of December 2007

passed by the learned judge, Motor Accident Claims

Tribunal, 14th Court, Alipore, South 24 Parganas in M.A.C.

case no.49 of 2006.

The brief fact of the case is that the present

appellant being the claimant has suffered the accident on

September 21, 2005 whereby a Taxi dashed him near Kala

Mandir at Santoshpur Budge Budge Road. After such

accident, he admitted to the hospital for two days. The

fracture was repaired by plastering at the Medical College

and Hospital and after two days he was discharged from

the hospital.

The insurance Company contested the case by filing

the written statement. Learned Tribunal after hearing the

parties has awarded a sum Rs.5000/- only in favour of the

claimant.

Being aggrieved by and dissatisfied with the said

award, the present appeal has been preferred.

Learned advocate for the appellant submitted before

this Court that the impugned award passed by the learned

advocate is erroneous. Learned Tribunal has failed to

appreciate the facts and circumstances of the case and

come to an erroneous finding.

He argued that the disability certificate was issued

by the Doctor, who deposed before the learned Tribunal as

P.W.2. The disability as assessed by the Doctor (P.W.2) to

be 36%. Learned Tribunal has not considered the fact but

only allowed a sum of Rs.5000/- for the grievous injury as

sustained by the appellant. He again argued that the

claimant has suffered huge mental pain and agony due to

such accident. Thus, the impugned award need be

modified and enhanced.

Learned advocate appearing on behalf of the

Insurance Company submitted before this Court that the

learned Tribunal has considered the facts and

circumstances of this case and passed the reasonable

order. He argued that the observation of learned Tribunal

has very many specifics to the effect that the injured

sustained no financial loss. The claimant has also not

produced any document for his medical treatment. The

injured was treated before the Government Hospital, so,

no medical expense was incurred to that effect. There is

no loss of income. It is the deposition of the appellant

before the learned Tribunal that he used to perform his

duty naturally without any assistance. Thus, actually,

there is no disability of the present claimant. The

impugned award passed by the learned Tribunal is not at

all perverse. Thus, there are no points to entertain the

instant appeal. He prayed the appeal be dismissed.

Heard the learned advocate and perused the

materials on record, learned Tribunal is of the opinion

that the injured/appellant is not suffered any loss of

income. Learned Tribunal has considered the evidence of

P.W. 1 i.e. claimant wherein he has deposed that his

income was regularly enhanced and he suffered no loss of

income during his duty as peon of this Hon'ble Court. It is

also the decision of Learned Tribunal that the medical

treatment which the victim was received for two days in

the Government Hospital. There is no sufficient medical

document to substantiate his claim to the tune of

Rs.20,000/- towards the Medical expenses. Thus, the

learned Tribunal on the basis of such observation only

awarded Rs.5,000/- for the injury of grievous hurt. It is

true, that the observation of learned Tribunal suffered no

illegality but it appears to me that due to such accident

the insured must have suffered some mental pain and

agony, which was not actually considered by the learned

Tribunal.

According, to the direction of the Hon'ble Supreme

Court in Ajoy Kumar Vs. Raj Kumar the non-pecuniary

damages has to be awarded in favour of the appellants.

Considering the two days admission of the present

appellant in the hospital, I think it necessary that the

claimant is entertained to get Rs.10,000/-more towards

the pain and suffering.

Accordingly, the Insurance Company is directed to

pay the rest amount of Rs.10,000/- in favour of the

appellants along with 6% interest per annum from the

date of filing of this case 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 claimants are at liberty to withdraw the same in equal

shares subject to the ascertainment of payment of

requisite Court Fees.

Connected all applications, if any, are also disposed

of.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

( Subhendu Samanta, J.)