Calcutta High Court (Appellete Side)

T Jayanta Jash vs N on 2 February, 2023

                  C
 S/L No.12
02.02.2023   o               FMA 641 of 2011
Ct-237
             u
                                  in
(PA.RD)           IA No. CAN/3/2015 (Old No: CAN/6193/2015)
             r
             t                     Jayanta Jash
                                       Vs
             N
                            New India Assurance Co. Ltd & Anr.
             .

Mr. Uday Sankar Chattopadhayay, Adv.

S Mr. Suman Sankar Chattopadhayay, Adv.

             l        Mr. Santanu Maj, Adv.
                      Ms. Singdha Saha, Adv.
                      Mr. Rajashree Tah, Adv.

                      Mr. Gourab Das, Adv.

             1                             ... for the Appellant
             /
                      Mr. Saibalendu Bhowmik, Adv.
             C
                      Mr. Rajsekhar Basu, Adv.
             L
                                   ............for the Respondent

This appeal is directed against the judgment and

award passed by the Ld. Motor Accident Claims

Tribunal, 2nd Court, Burdwan in connection with Motor

Accident Claim Case no.77 of 2009 previously registered

as 7 of 2006 and 15 of 2006 under Section 166 of the

Motor Vehicles Act, whereby, Ld. Tribunal awarded

compensation to the tune of Rs. 25,000/- along with

interest @ 6% per annum from the date of filing of the

application till payment.

The claim petition under Section 166 of the Motor

vehicles Act, filed by Jayanta Jash/ injured/ claimant

on account of injury sustained in a Motor Accident on

28.09.2005 by the involvement of one bus bearing no.

WMH-1886. On that day at about 8.30 hours claimant

was proceeding towards Katwa through S.T.K.K. Road

and the said bus made an accident near Pachghara

More while driving with high speed and in negligent

manner. As a result said bus capsized and passengers

including the claimant of this case sustained injury and

admitted in Katwa Sub Divisional Hospital. At the time

of accident, the injured appellant /injured being a

Secretary under 'Maa Engineers' Co-operative &

construction society limited and also contractor, civil,

mechanical and electrical contractors and general order

supplier, used to earn Rs. 7,000/- per month. That is

why the claim petition under Section 166 of the Motor

Vehicles Act, was filed with a prayer for compensation to

the tune of Rs. 5,00,000/-.

Respondent/Insurance Company contested the

claim petition by filing a written statement denying all

averments of the claim petition contending, inter alia,

that the claimant is not entitled to any compensation as

prayed for.

Ld. Tribunal framed 8 (eight) issues and took up all

the issues conjointly for decision. Ld. Tribunal did not

consider the disability certificate on the ground that

disability certificate was issued without doing any

clinical test or taking a fresh X-ray. Ld. Tribunal also did

not consider the document showing expenditures

towards treatment as those documents were not proved

according to the Rule of Evidence Act albeit Ld. Tribunal

could not ignore the injury sustained by the claimant in

a motor accident claimed to have been occurred on

28.09.2005 by the involvement of a bus bearing no.

WMH-1886 which was insured with the New India

Assurance Company at the relevant point of time. That

is why Ld. Tribunal awarded a lump sum amount of Rs.

25,000/-.

To prove the case, claimant examined himself as

PW-1, one Doctor Prabhas Nath Mitra as PW-2, member

of the Medical Board issuing disability certificate & one

Bipattaran Bandhu as PW-3 Secretary of 'Maa

Engineers' Co-operative & Constriction Society limited.

In course of evidence a good number of documents

including FIR, charge sheet, seizure lists, salary

certificate & disability certificate were admitted in

evidence.

In course of argument, Ld. Advocate Uday Sankar

Chattopadhayay appearing on behalf of the appellant /

claimant has submitted that PW-2 one of the Doctor of

the Medical Board testified in this case that all five

doctors examined the injured and issued the disability

certificate and therefore, that disability certificate issued

by the medical Board can not be ignored.

Mr. Chattopadhayay also referred to the evidence of

the claimant himself and that of the PW-3 and

submitted that after the accident claimant lost his

ability to work. He also referred to the bunches of

medical bills kept in the record in support of prolonged

treatment of the claimant.

Ld. Advocate, Mr. Saibalendu Bhowmik, appearing

on behalf of the respondent/ Insurance Company, has

supported the judgment passed by the Ld. Tribunal and

contended that the evidence of doctor (PW-2) clearly

reflects that disability certificate was issued by the

Board of Doctors without examining the claimant

clinically and also without taking any fresh X-ray of the

claimant and therefore, Ld. Tribunal righty ignored the

disability certificate.

In fact, no argument has been advanced before this

Court by either of the parties to this appeal with regard

to accident by the involvement of the bus bearing reg.

no.WMH-1886 on 28.09.2005 wherein claimant/Jayanta

Jash sustained injury. Be that as it may, I have gone

through the claim petition together with the evidence of

PW-1/ claimant, First Information Report, seizure list

and charge sheet and I find hardly any scope to re-enter

into the issue of injury sustained by the claimant on

account of a motor accident.

Dr. Prabhas Nath Mitra attached to Katwa Sub-

Divisional Hospital as Medical Officer testified in this

case. He deposed that Medical Board consists of the five

doctors of the hospital issued the disability certificate in

the name of Jayanta Jash. Doctors found disability to

the extent of 53%. He further testified that they

examined his wrist and joint, stuble and also found no

motion of movement of his hand and that is why they

found 53% disability. After careful perusal of the

evidence of doctor (PW-2) together with the disability

certificate, I find that before issuing disability certificate

surely Medical Board consists of five doctors examined

the injured/ claimant albeit not clinically or by taking

fresh X-ray. That apart, I find discrepancy in respect of

percentage of disability. Doctor (PW-2) testified 53% but

disability certificate shows 56% in figure and 55% in

words. However, I am not oblivious to the object behind

the enactment of the beneficial legislation i.e. Motor

Vehicles Act, 1988 and also to the settled principle that

in dealing with a case under this Act strict rule of

evidence should not be applied at the time analyzing the

evidence.

In this case, disability certificate was proved by the

doctor, who was the member of the Medical Board and I

am not inclined to ignore the disability of the claimant

only on the ground of few discrepancies but, considering

the injury on the left hand, I am not agreeable with the

percentage of disability in terms of certificate issued by

the Board.

Considering the evidence on record including the

evidence of losing job corroborated by the PW-3, who

has been substituted in place of claimant in the 'Maa

Engineers' Co-operative & Construction Society Limited,

after the accident alleged in this case, I am of the view

that 30% disability may be taken into account for

assessing compensation.

With regard to income claimant himself has

deposed that he used to earn Rs. 7,000/- per month

from that society as secretary and to substantiate his

evidence claimant examined one Bipttaran Bandhu,

Secretary of that Society, who testified that claimant

used to earn Rs. 7,000/- per month. PW-3 himself

issued the certificate showing income of claimant. But, I

am not inclined to rely on the evidence in support of

salary of the claimant of Rs. 7,000/- as no document

like salary register/ attendant register has been

produced before the Tribunal to prove the income. It is a

Co-operative Society having employees working therein

for which society is expected to maintain salary register

at least. Therefore, I find no other option but to go for

notional income of Rs. 3,000/- per month.

It appears from the record that claimant filed a good

number of medical vouchers in support of expenditure

towards treatment. Therefore, claimant is also entitled to

compensation towards non-pecuniary heads.

In the aforesaid view of the matter, I proposed to

assess the compensation as follows:-

        Monthly income                     Rs. 3000/-





   Annual income (3000X12)              Rs. 36,000/-



   40% future prospect of the income       Rs. 14.400/-
                                       ________________
             Total                       Rs. 50,400/-

 30% of income                            Rs. 15,120/-

Use of multiplier as per
injured person 37 (15,120X15)             Rs. 2,26,800/-

Non pecuniary damage

Medical expenses (Rs. 50,000/-)

Pain and Suffering (Rs. 50,000/-)       Rs. 1,00,000

                Total                  Rs. 3,26,800/-

Less awarded amount                     Rs. 25,000/-

It is reported that, claimant has already received

25,000/- and therefore, claimant is entitled to balance

amount of Rs. 3,01,800/- along with interest @ 6% per

annum from the date of the filing of the application till

the deposit of the amount.

Respondent/ Insurance Company is directed to

deposit balance amount of Rs. 3,01,800/- along with

interest @ 6% per annum from the date of the filing of

the application till the deposit of the sum before the

office of the Ld. Registrar General, within 6 weeks from

date.

Ld. Registrar General is requested to disburse the