Calcutta High Court (Appellete Side)
National Insurance Company ... vs Sarbeswar Ghosh Alias Noton Ghosh ... on 17 January, 2023
1
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 915 of 2015
With
CAN 3 of 2016 (CAN 7346 of 2016)
(Application not in the file)
National Insurance Company Limited
Vs.
Sarbeswar Ghosh alias Noton Ghosh & Anr.
For the Appellant/ :Mr. Parimal Kumar Pahari, Advocate
Insurance Company
For the Respondent :Mr. Uday Sankar Chattoadhyay, Advocate
no. 1/ Claimant Ms. Trisha Rakshit, Advocate
Ms. Rajashree Tah, Advocate
Mr. Gourab Das, Advocate
Heard on : January 10, 2023
Judgment on : January17, 2023
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Bibhas Ranjan De, J.
1. In this appeal, I am dealing with an application under Section
166 of the Motor Vehicles Act, which was filed by the claimant/
injured on account of injury sustained by him in a motor
accident on 08.11.2009 at about 19.00 hours over National
Highway Number 2 near Chandulmore under PS Burdwan. On
the relevant date injured was travelling by a Tata Indica Car
bearing no. WB-42J /2752 and at that time a truck bearing no.
WB-61/2177 coming with high speed and in rash and negligent
manner dashed against the said Tata Indica Car. In effect,
claimants sustained severe injuries on his head and face and
one of the passenger died on spot. Said truck was duly insured
with Naitonal Insurnace Company Ltd. Claimant was shifted to
Burdwan Medical College and Hospital and thereafter to Apolo
Gleneagles at Kolkata. Ultimately he suffered 50% disability.
2. Owner did not contest this case but National Insurance
Company contested this case by filing written statement
denying all averments of the claim petition contending, inter
alia, that alleged vehicle was not responsible for the accident
and the claim petition was bad for non joinder of said Tata
Indica Car bearing no. WB42J/2752 and accordingly claimant
is not entitled to any compensation from the National Insurance
Company Ltd.
3. To prove the case claimant examined himself as PW-1. He
corroborated the entire case of the claim petition. In course of
his cross -examination, several suggestions were thrown to him
by the Insurance Company. He has further stated in cross-
examination that he was a 20% partner of a Rice Mill and
earned Rs. 30,000/- per month.
4. One Tritha Pati Roy, being executive Medical records of Apolo
gleneglanes Hospital, was examined as PW-2. He was authorizes
by Dr. Pratha Bhattacharya, Medical Superintendent (Clinical).
He testified that patient Sarbeswar Ghosh was admitted in their
hospital on two occasions 8th November 2009 to 24th December
2009 and 3rd Mach 2010 to 12th March 2010. Through his
evidence discharge certificate were admitted in evidence as
exhibit 10 and 11 and bill raised for said treatment for the 1st
round admission was admitted in evidence as exhibit 12 and
also a bill for 2nd round treatment was admitted as exhibit 13.
Cross-examination of this witness was not so significant to be
mentioned.
5. Subhasis Bhattacharjee, an employee of Calcutta Institute of
Maxillofacial surgery & Research, was examined as PW-3. He
was authorized by Dr. Sujan Mukherjee, director of the
Institution. He testified that Sarbeswar Ghosh was admitted in
their hospital. He proved discharge certificate and bill for the
treatment as exhibit 15 and 16. In cross-examination he said
that the patient was admitted for correction of pain, bleeding,
fractures and other problems.
6. Dr. Kamalesh Das the then Professor of Neurology attached to
Burdwan Medical College and Hospital was examined as PW-4.
He treated the patient at O.P.D. He proved the O.P.D Card dated
25.11.2010 marked as exhibit 17 and 17/1. In cross-
examination he deposed that injury was due to road traffic
accident.
7. Dr. Shankar Prosad Mallick, attached to Neurology Department
of Burdwan Medical College and Hospital has stated that
Sarbeswar Ghosh/claimant appeared before the Medical Board
constituted of several doctors including he himself. Medical
Board after analysis issued a disablement certificate. Though he
identified his signature marked as exhibit18/1 but he was not
aware of other signature. Disability certificate was admitted as
exhibit 18. In cross-examination he denied the suggestion that
assessment of 50% disability was not proper.
8. That apart, a good number of document was also admitted in
evidence viz. FIR, charge sheet, seizure list, Insurance Policy,
Driving Licence, Voter ID Card of claimant, school living
certificate, document of partnership deed etc.
9. Learned Tribunal after considering all oral and documentary
evidence returned his findings with the award of Rs.
25,52,320/- towards pecuniary and non pecuniary damages.
10. Insurance Company challenged the award passed by the
Tribunal by filing the instant appeal on the ground that injured
being a partner of a Rice Mill business did not suffer any
pecuniary loss.
11. In course of hearing, Ld. Advocate Mr. Parmal Kr. Pahari,
appearing on behalf of the Insurance Company did not raise any
issue regarding injury sustained by the claimant in the accident
by the involvement of the truck bearing no. WB 61/2177.
However, on careful scrutiny of the evidence of PW-1 together
with the admitted documents like certified copy of FIR, charge
sheet and seizure list, I find hardly any scope to disbelieve the
factum of accident whereby claimant sustained severe injury for
which he had to undergo prolong treatment in different medical
institutions.
12. Only issue in this appeal whether claimant suffered any
pecuniary loss after the accident.
13. Ld. Advocate, Mr. Uday Shankar Chattopadhay appearing on
behalf of the claimants/ respondent has contended that after
the accident he was not supposed to work as partner with full
vigoure and energy and he has further contended that such
issue was neither taken in the written statement filed by the
Insurance Company nor any specific cross-examination was
made at the time of deposition of claimant (PW-1).
14. In support of his contention, Mr. Pahari relied on the
following authorities:-
A. Jagdish Vs Mohon and other Reported in AIR 2018
Supreme Court 1347
B. Syed Sadiq Vs Divisional Manger United India Insurance
Company reported in AIR 2014 SC (Civil) 840
15. Ratio of Jagdish (supra) and Syed Sadiq (supra) is not at all
applicable in our case as I am dealing with an appeal preferred
on behalf of the Insurance Company.
16. Coming to the issue of this appeal, I find that Mr. Pahari has
tried to focus on 'no pecuniary loss' after the accident by
referring to few lines of cross-examination of claimant which
runs as follows:-
" Haripada Ghosh, Dhaneswar Ghosh,
Biswanath Ghosh and I are the partners of
Kalimata Modern Rice Mill. I am 20% partner
from the inception of the rice mill.In that
partnership business I earn Rs. 30,000/- per
month from the said rice mill."
17. The aforesaid evidence, in my humble opinion, can not lead to
any inference as to 'no loss of income' even after the accident.
Nowhere, in those lines a word 'still' is missing. From the entire
evidence on record, I find that after the accident claimant has to
suffer a lot through prolong treatment in different medical
institutions and finally suffered disability to the extent of 50%.
Therefore, by no stretch of imagination, I can hold that claimant
was able to earn as before. It is needless to mention that a
partner of a business is able to receive his share in every month
without any participation. That being so, I am unable to agree
with Mr. Pahari that claimant did not suffer any pecuniary loss
even after the accident wherein claimant suffered severe bodily
injury.
18. With the aforesaid observation, I find no other option but to
affirm the judgment and award passed by the Ld. Tribunal in
Motor Accident Claim Case No. 32 of 2010.
19. Accordingly, the appeal being FMA 915 of 2015 stands
dismissed.
20. Claimant is at liberty to withdraw the entire awarded amount
deposited by the appellant/ Insurance Company on 06.01.2014
vide OD Challan no. 2666 with all accrued interest.
21. Learned Registrar General is requested to disburse the
amount to the claimant on proper verification and identification.
22. Let a copy of this judgment along with Tribunal record be
transmitted back immediately.
23. 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.]
