Calcutta High Court (Appellete Side)
Sujit Khetua @ Khatua vs National Insurance Company Ltd. & ... on 6 February, 2023
21
06.02.2023
Ct. No.237
sb.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 201 of 2007
Sujit Khetua @ Khatua
Vs.
National Insurance Company Ltd. & Anr.
Mr. Krishanu Banik
... For the appellant/claimant
Mr. Rajesh Singh
... For the respondent no.1/Insurance Co.
This appeal is directed against the judgment and
award dated 23rd June, 2006 passed by the learned Judge,
Motor Accident Claims Tribunal, Paschim Medinipur, in
connection with MAC Case No.157 of 2005 under Section
166 of the Motor Vehicles Act, 1988, whereby the learned
Judge awarded a sum of Rs.1,00,000/- as compensation.
The claim petition was filed by Mantu Khatua, the
father of the injured, under Section 166 of the Motor
Vehicles Act, on account of injury sustained by his son,
Sujit Khatua, by the involvement of vehicle bearing
registration no.WB-33/2261 (Bus).
On 29th October, 2004, the claimant, sujit Khatua,
was coming from Negui to Midinipore by the offending bus
bearing registration no.WB-33/2261. The driver of the
vehicle was driving in excessive speed endangering the
human life and safety. As a result, the drive lost control
over the bus and it capsized. The claimant, sujit Khatua
sustained injury all over his person, especially, on both his
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hands. He was taken to Jhargram Hospital wherefrom he
was shifted to NRS Medical College and Hospital, Kolkata,
for treatment. At the time of accident, injured Sujit Khatua
was a student and aged about 17 years.
The Insurance Company contested this application
by filing written statement, denying material averments of
the claim petition contending, inter alia, that the claimant
is not entitled to any compensation as prayed for.
In course of hearing of the case four (4) witnesses
were examined. Smt. Pratima Khatua, the mother of the
injured as PW-1, Sri Rabindra Khatua, as PW-2, Sri Bejoy
Singha, as PW-3 and Sri Abhijit Biswas, S.I. of Police, as
PW-4.
PW-1 has corroborated the entire contents of the
claim petition though she did not witness the incident. She
testified about the accidental injury sustained by her son
and age of her son.
PW-2 is a relative of the injured has testified about
the accident by the involvement of the bus bearing No.WB-
33/2261, though in his cross-examination he stated that
he was not travelling with the bus. He only received
information about the accident and had been to Jhargram
Hospital.
PW-3, testified that he was the passenger of the
offending bus at the relevant point of time which was
driving with high and excessive speed and as a result the
driver lost control over the bus and the same capsized. He
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also testified that Sujit Khatua, being the passenger of the
same bus, sustained injury.
PW-4, Abhijit Biswas, S. I. has proved the initiation
of Jhargram Police Station Case No. 184 of 2004 dated
29th October, 2004 under Sections 279/337/338 of the
Indian Penal Code, on receipt of FIR.
In course of evidence, a good number of document
was admitted in evidence as Exhibit 1 to 7, including the
certified copy of the FIR, charge-sheet, discharge certificate
from NRS Hospital, injury report, assessment report,
disability certificate etc. That apart, bed-head ticket is also
admitted as exhibit-A series. In course of hearing huge
number of medical papers including bill vouchers and
insurance police were placed before the Tribunal.
After analyzing the entire evidence on record, the
learned Tribunal recorded as follows:-
"It has appeared from Exts. 3 and 3/1 that
Sujit Khatua was admitted at N.R.S. Medical
College & Hospital on 30.10.04 and on 4.1.05 he
was discharged. It has also appeared that he
underwent an operation there on 27.1.05 and for
undergoing operation he was again admitted on
25.1.05 and to repair would over left elbow there
has bee skin grafting and having considered all
these it is quite apparent that the petitioner-Sujit
Khatua received grievous injury and was under
medical treatment more than two months. Ext. 7 is
the handicapped certificate and it was marked as
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exhibit under the provision of Section 32 of the
Evidence Act and the decision reported in AIR 1989
SC 702. The doctors of the medical board did not
adduce evidence to prove the certificate. The
medical evidence available on record of the
petitioner does inspire confidence to hold that the
petitioner sustained permanent partial disablement
which arose due to motor vehicular accident".
I failed to make me understand that what
prevented the learned Tribunal from assessing the
compensation in terms of pecuniary loss. The learned
Tribunal took the disability of the injured into
consideration but did not assess the compensation
accordingly.
So far as the disability certificate is concerned, it is
seen that it was filed on behalf of the injured and it was
admitted in evidence as Exhibit-7, but I do not find any
contrary evidence on behalf of the Insurance Company to
disregard the said certificate.
From Exhibit-7, it is found that the disability
certificate was issued by board of doctors including
orthopaedic surgeon of S.D. Hospital, Jhargram and it was
admitted in evidence. On careful scrutiny of the disability
certificate further I find that the disability certificate was
issued as purely temporary certificate, subject to review
after two years. From the evidence I do not find any such
review on behalf of the injured ever done after two years as
the learned Tribunal passed the judgment and award in
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the year 2006. However, considering the nature of
beneficial legislation and the huge expenditure towards the
treatment as well as the evidence of PW-1, the mother of
the injured to the effect that her son was still under
medical treatment, I am of the opinion that though no
review was done after two years, that percentage of
disability may be considered as 30 per cent.
In the aforesaid view of the matter, keeping an eye
to the date of accident and other circumstances, I propose
to determine compensation as follows:-
Annual Income (Rs.2500/-x 12) Rs. 30,000/-
Less: Deduction 70% (since the claimant Rs. 21,000/-
was disabled to the extent of 30%) -------------------
Rs. 9,000/-
Multiplier by 18 (as per age of the victim) X 18
-------------------
Rs.1,62,000/-
Add: Non-Pecuniary Damages Rs. 1,00,000/-
-------------------
Total Rs.2,62,000/-
Less - Awarded by ld. Tribunal Rs. 1,00,000/-
-------------------
ENHANCEMENT Rs. 1,62,000/-
-------------------
Therefore, appellant/claimant Sujit Khatua is
entitled to the total compensation to the tune of
Rs.2,62,000/-. It is reported that the appellant/claimant
has already received Rs.1,00,000/- as awarded by the
learned Tribunal.
Therefore, the appellant/claimant is entitled to the
enhanced compensation to the tune of Rs.1,62,000/-
along with interest 6 per cent per annum from the date of
filing of the application till deposit of the amount before
the office of the learned Registrar General.
The respondent/National Insurance Company
Limited is directed to deposit a sum of Rs.1,62,000/- along
with interest @ 6 per cent per annum from the date of
filing of the application i.e, from 5th February, 2005 till the
deposit of the same before the office of the learned
Registrar General of this Court, within six weeks from
date.
The appellant/claimant is entitled to withdraw the
amount with interest.
The learned Registrar General is requested to
disburse the total amount with interest to the appellant/
claimant, Sujit Khatua, who has already attained the age
of majority in the meantime, on proper identification.
With the above observation, the appeal, being FMA
201 of 2007, is disposed of.
All pending applications, if there be any, stand
disposed of.
Records of the learned Tribunal along with a copy
of this order be transmitted back immediately.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
