Calcutta High Court (Appellete Side)
Sk. Jiarul vs New India Assurance Company Ltd. & ... on 9 February, 2023
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 1191 of 2007
Sk. Jiarul
Vs.
New India Assurance Company Ltd. & Anr.
For the Claimant/Appellant :Mr. Krishanu Banik, Advocate
For the Insurance Company/ :Mr. Parimal Kumar Pahari, Advocate
Respondent no. 1
Heard on : January 31, 2023
Judgment on : February 09, 2023
Bibhas Ranjan De, J.
1. Claim petition under Section 166 of the Motor Vehicles Act was
filed by one Sk. Jiarul, who reported to have sustained injury in
an accident happened on 17.03.2005 at about 7.00 a.m. by the
involvement of one truck bearing no. WB 41B/5536 proceeding
towards Burdwan through Burdwan-Arambagh Road, near
Uchalan Amtala said truck dashed another stationary truck due
to break fail. As a result, victim sustained severe injury on his
right leg, he was admitted in Burdwan Hospital for treatment
and became unemployed. At the time of accident, he was
Khalashi of truck and aged about 19 years.
2. After the accident Madhabdihi Police Station Case No. 17 of
2005 dated 17.03.2005 under Section 279/338/427 IPC was
started and ended with Charge sheet.
3. Owner of the truck contested the claim petition by filing a
written statement admitting the accident alleged in this case
contending, inter alia, that amount of claim is excessive.
Insurance Company also contested the case by filing written
statement denying all material averments of the claim petition
contending, inter alia, that injured did not sustain injury in any
accident by the involvement of the truck being no. WB
412B/5536 on the alleged date and time and claimant is not
entitled to any compensation.
4. In course of hearing, claimant himself examined as PW-1. He
claimed compensation of Rs. 3,00,000/- and corroborated the
claim petition. In cross examination he has stated that one
Doctor Dulal Chowdhury treated him and he filed prescription
and other documents. He specifically stated that he has not filed
any document regarding his psychical disability.
5. In course of his evidence, certified copy of FIR, charge sheet,
handicapped certificate issued by the Medical Board, Insurance
Policy and a good number of medical vouchers etc., were filed.
6. Ld. Tribunal did not rely on the disability certificate on the
ground of that it was not admitted in evidence and that is why
did not allow any compensation as per second schedule of the
Motor vehicles Act. Ld. Tribunal allowed compensation to the
tune of Rs. 28,975/- only towards expenditure for treatment.
7. Not satisfied with the award claimant preferred this appeal on
the ground that injured being a khalashi of the offending truck
is entitled to compensation toward pecuniary loss which was
not assessed by the Ld. Tribunal.
8. In course of argument, Ld. Advocate, Mr. Krishanu Banik,
appearing on behalf of the claimant has submitted that evidence
of this case clearly reflected that claimant being a khalashi by
profession, sustained pecuniary loss which was not assessed by
the ld. Tribunal. He relied on a case of Bajaj Allianz General
Insurance Company Pvt. Lt. Vs. Union of India and other
reported in 2021(4) TAC667(SC).
9. Per contra, Ld. Advocate, Mr. Parimal Kumar Pahari, relied on a
case of Rajkuma Vs. Ajay Kumar and another reported in
(2011) 1 Supreme Court Cases 343 and submitted that
disability certificate was not proved even by any employee of the
Hospital let alone by the member of the Medical Board.
10. From the evidence of injured himself together with the certified
copy of Charge Sheet and FIR, I find no scope to disbelieve the
accidental injury sustained by the claimant on 17.03.2005 at
about 7.00 a.m. by the involvement of one truck bearing no.
WB 41B/5536 insured with New India Assurance Company
Limited.
11. Now, I propose to come to the disability certificate issued by
the Medical Board constituted in Burdwan Medical College &
Hospital.
12. From the report, I find that the disability certificate was filed
on behalf of the claimant but claimant did not take any effort
by summoning any witness to prove the disability certificate, for
the reason best known to him.
13. In Bajaj Alliance General Insurance Company Ltd. (supra)
Hon'ble Apex Court held in Para IV:-
" IV. As far as the aspect of the
issuance of certificate on disability of
victim is concerned, it is reiterated that
the guidelines laid down by this Court
in Raj kumar V. Ajay Kumar and Anr.
(2011) 1 SCC 343 mandatorily must be
followed by the Macts, in respect of loss
of income due to injury/disablement.
The District Medical Board is also
directed to follow the guideliens issued
by the Ministry of Social Justice and
Empowerment, Government of India
vide Gazette Notification s. No. 61,
dated 05.01.2018, for issuance of
disability certificate in order to bring
Pan India Uniformity. The consequence
is that the MACT would ascertain that
permanent disability certificate issued
by the District Medical Board or body
authorized by it is in accordance with
the Gazette Notification alone. Once the
certificate is issued in this manner, the
same can be marked for purposes of
being taken into consideration as
evidence without the necessity of
summoning the concerned witness to
give formal proof of the documents
unless there is some reason for
suspicion on the document:"
14. Therefore, considering the entire materials on record, I can
not rely on the disability certificate on the following two
grounds:-
a. Disability certificate was not even admitted in evidence as
exhibit with or without objection.
b. No Gazette Notification was ever filed in view of the guideline
prescribed in Bajaj Alliance General Insurance Company
PVT. Ltd. (supra).
15. But, from the evidence of the claimant himself together with a
good number of medical vouchers and also sufferings for a
prolonged period, I am of the view that claimant is entitled to
compensation to the tune of Rs. 1,50,000/- towards non-
pecuniary loss.
16. It is found from the Tribunal record that claimant already
received Rs. 28,975/- from the Tribunal. Therefore,
claimant/appellant is entitled to balance compensation of Rs.
1,21,025/- along with interest @ 6% per annum from the date of
filing (28.04.2005) till the date of deposit of the sum before the
office of the Ld. Registrar General.
17. Respondent/ Insurance Company is directed to deposit the
balance amount of Rs. 1,21,025/- along with interest as stated
above, before the office of the Ld. Registrar General, within
6(six) weeks from date.
18. Ld. Registrar General is requested to disburse the amount in
favour of appellant/ claimant on proper identification and proof.
19. With the aforesaid observation this appeal being FMA 1191 of
2007 stands disposed of.
20. Let the records of Tribunal along with copy of the judgement
be transmitted back immediately.
21. Pending applications, if there be any, stand disposed of.
22. Urgent Photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance with all requisite
formalities.
[BIBHAS RANJAN DE, J.]
