Sri Pintu Mohanta vs Divisional Manager
2023 Latest Caselaw 5704 Cal

30.08. 2023
 item No.3
n.b.
ct. no. 551           FMA 480 of 2007
     with
     IA No. CAN 1 of 2018(Old No. CAN 6682 of 2018)

                        Sri Pintu Mohanta.
                                 Vs.
                  Divisional Manager, Oriental Insurance Co. Ltd.


              Mr. Saidur Rehaman,
                               .....for the appellant.
              Ms. Sayanti Santra,
                               .... For the respondent.

This appeal has been preferred against the

judgment and award dated 29.7.3006 passed by the

learned Judge, 2nd Court, Dakshin Dinajpur at Balurghat

in M.A.C. case No.314 of 2003 under Section 166 of the

Motor Vehicles Act.

The brief fact of the case is that the present

appellant being the claimant filed an application under

Section 166 of the M.V. Act before the learned Tribunal for

getting compensation on the ground that he sustained

severe injury and he became permanent disable by an

accident happened due to rash and negligent driving of

the driver of the offending vehicle duly insured under the

policy of the Insurance Company. The Insurance

Company contested the matter before the learned Tribunal

After hearing the parties and after receiving the

evidences from the claimants, the learned Tribunal has

awarded a sum of Rs.20,000/- towards the mental pain

and agony suffered by the claimant during his stay at

hospital.

Being aggrieved by and dissatisfied with the

impugned award, the claimant has preferred this appeal.

Learned advocate for the appellant submitted before

this Court that the learned Tribunal has committed an

error in passing the impugned award. Learned Tribunal

must have considered the injuries sustained by the

claimant/appellant during such accident. He also argued

that the claimant was admitted to the Government

hospital for more than three months after such accident.

The Board of doctors in government hospital issued a

certificate of disablement in favour of the claimant to be

50%. The learned Tribunal has not considered the

disability certificate. The observation of the learned

Tribunal regarding the physical disability of the present

appellant is erroneous. He also argued that the present

appellant has suffered severe bodily injury by the

accident. The income of the present appellant has been

diminished by such accident. So, he prayed for just and

proper compensation according to the structure.

Learned advocate appearing on behalf of the

Insurance Company submitted before this Court that the

learned Tribunal has committed an error in passing the

impugned award. It was observed by the learned Tribunal

correctly that the claimant appeared before this Court

through a bus without any assistance of any person or

without the help of stick on crutch. Learned Tribunal has

personally observed that claimant is not suffering any

permanent disability. He also argued that the disability

certificate issued by the concerned doctors, who deposed

as P.W. 2 before the learned Tribunal and has specifically

stated that there were no circular to hold such camp to

issue handicapped certificate wherein the certificate was

issued in favour of the claimant. He argued that the

certificate issued by the doctors is not beyond doubt.

Learned Tribunal is categorically observed that such

findings regarding the loopholes of issuance of the said

certificate and the award was passed in favour of the

claimant only for his long stay at the government hospital.

On such submissions he prayed for dismissal of the

appeal.

Heard the learned advocates. Perused the impugned

award and also perused the LCR and the exhibited

document therein. It appears to me that the accident was

happened on December 10, 2002. The discharge

certificate issued by the North Bengal Medical College and

Hospital. The claimant was admitted hospital after such

accident from 13.12.2002 to 4.4.2003. It was mentioned

in the discharge certificate; the nature of injury, which

was specifically mentioned therein that suffering from

fractue(H) at Left Femur shaft and left tebial shaft &

subluxation and heap joint. The X-ray was held at the

said hospital on 30.3.2012 wherein the fracture was

located. The X-ray requisition of the hospital is marked as

exhibit 3. For his long stay at hospital, he had paid to the

government different amount which was calculated to be

Rs.2,934/-. So, the injury sustained by the appellant for

such accident is not simple injury. The both leg including

the Left femur shaft and tebial shaft were broken and

recovered after four months and discharge from the

hospital. He was advised to consult on OPD but there is

no document that he had consulted. In perusing the

disability certificate, it appears to me that the P.W. 2 has

identified his signature over the disability certificate

including the signature of Superintendent and other

doctors. He is of opinion that they hold a camp and such

camp the person of disability appears and the certificate

was issued. It is true that the P.W. 2 never examined or

treated the appellant. In the disability certificate they

observed the disability to be weakness of shoulder and

lower limbs. On the basis of such observation, they

issued a certificate of 50% disability. The learned

Tribunal who hold the trial of this case is the person who

observes that the appellant appeared at court through the

bus and without any assistance. On such observation,

learned Tribunal is of the view that the appellant is not

suffering any permanent disability. In considering the

discharge certificate including the disability certificate, it

appears to me that the person is suffering shorten left

lower limb. If the accident was not happened the

appellant would not have suffered such disability. Let me

considered whether the percentage of disability is

sufficient to assess the functional disability of a person. It

appears to me that the claimant/appellant was engage in

a business of betel leaves and betel nuts. No document of

income or his business was produced. No income proof

certificate was produced. However, considering the nature

of job, he is performing, it appears to me that the

permanent functional disability of a person would be 25%.

The income of the claimant was stated Rs.3,000/- per

month but as there is no certificate. So, at this juncture,

the income of the deceased is taken to be Rs.2,000/- per

month.

Considering the entire facts and circumstances of

the case, it appears to me that the impugned award

passed by the learned Tribunal is liable to modified.

For just and proper compensation of this case, the

income of the claimant was assessed to Rs.2,000/- per

month. The yearly income comes to Rs.24,000/-. The

claimant is entitled to get the future prospect of 40% of

his established income according to the Hon'ble Supreme

Court passed in Pranay Shetty. After adding the 40%,

the yearly income comes to Rs.24,000/-+9,600/-

=Rs.33,600/-. The applicable multiplier is 17.

Considering the age of the claimant to be 26 to 30 years at

the time of accident. After multiplying the multiplier the

total compensation is Rs.5,71,200/-. The claimant is 25%

permanent functional disable, so, he is entitled to get 25%

of the said compensation. Therefore, he is entitled to get

1,42,800/-. Claimant is also entitled to get of Rs.20,000/-

towards the pain sufferings which was already awarded by

the learned Tribunal. The claimant has already received

the awarded amount of Rs.20,000/- from the learned

Tribunal, so, the balance amount comes to Rs.1,42,800/-.

The Insurance Company is directed to pay the

compensation to the claimant along with 6% interest per

annum form the date of filing of this case i.e. 28 th August,

2003 with the office of the Learned Registrar General,

High Court, Calcutta within eight weeks from the date of

passing of this order. On such deposit the claimant is at

liberty to receive the same from the officer of the learned

Registrar General, High Court, Calcutta on usual terms

and condition.

Accordingly, FMA 480 of 2007 is disposed of.

Connected 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.)