Calcutta High Court (Appellete Side)
Bapi Biswas vs The National Insurance Company ... on 2 January, 2023
02
02.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
IA No. CAN 1 of 2014 (CAN 3844 of 2014)
in
FMAT 959 of 2013
Bapi Biswas
Vs.
The National Insurance Company Limited & Ors.
Mr. Amit Ranjan Roy
... For the appellant/claimant
Mr. Sanjay Paul
... For the respondent no.1/Insurance Co.
In re: IA No. CAN 1 of 2014 (CAN 3844 of 2014)
This application has been filed for condonation of
delay in filing the Motor Accident Claim Appeal after 449
days.
Heard both sides.
Considering the reasons assigned in the
application itself and also keeping an eye to the beneficial
legislation, the prayer for condonation of delay is allowed
and the delay is condoned.
The application stands disposed of.
In re: FMAT 959 of 2013
The appeal is admitted.
Service of notice to the respondent no.1/Insurance
Company is dispensed with as the Insurance Company is
represented by the learned advocate.
2
Copy of the informal paper book is served upon the
respondents. The owner did not contest the case.
The appeal is taken up for hearing.
This appeal is directed against the judgment and
award dated 13th February, 2012 passed by the learned
Motor Accident Claims Tribunal, Additional District Judge,
4th Court, Nadia, in connection with MAC Case No.97 of
2005.
The case arose out of an application under Section
163A of the Motor Vehicles Act, 1988 by the
claimant/injured himself on account of an accident which
took place on 2nd January, 2001 at about 2.30 a.m. while
the victim was sleeping at his own tyre repairing shop
along with his two staff. One Truck, bearing registration
no.WB-03-A/3995, driving in rash and negligent manner,
dashed the said tyre repairing shop. thereby the claimant
sustained grievous multiple injuries all over his person. He
was taken to Nadia District Hospital and admitted therein
from 2nd January, 2001 to 17th February, 2001. The
Medical Board of the hospital issued Disability Certificate
in favour of the claimant/injured. Victim used to earn
Rs.3,000/- per month from his tyre repairing shop and
prayed for compensation to the tune of Rs.3,40,000/-.
Learned Judge of the Tribunal after considering
the evidence of the claimant (PW-1) came to his opinion
regarding monthly income of the claimant/injured as
3
Rs.2,000/- as the claimant miserably failed to provide his
income by adducing any documentary evidence in support
of his business. On that assessment of monthly income,
learned Tribunal returned his findings towards
compensation to the tune of Rs.1,03,800/-.
Here, in this case, the appellant/claimant/injured
himself examined as PW-1 and one of the members of the
Medical Board, i.e., Dr. Tarunjit Dutta Roy, was examined
as PW-2 to prove the Disability Certificate.
Being aggrieved by and dissatisfied with the
judgment passed by the learned Tribunal, this appeal has
been preferred by the appellant/claimant/injured.
Learned advocates appearing on behalf of the
parties to this appeal only argued on the point of monthly
income and the Disability Certificate issued by the Medical
Board.
Mr. Amit Ranjan Roy, learned advocate appearing
on behalf of the appellant/claimant has submitted that the
learned Judge of the Tribunal assessed the monthly
income as Rs.2,000/- per month as the learned Judge
found the claim of Rs.3,000/- per month as inflated. It has
been further submitted on behalf of the appellant/
claimant that the reason given by the learned Tribunal
regarding reduction of percentage of disability cannot be
accepted in terms of evidence of the doctor himself (PW-2)
who was the member of the Board and an Ortho Surgeon.
4
On the other hand, Mr. Sanjay Paul, learned
advocate appearing on behalf of the respondent
no.1/Insuraqnce Company has submitted that monthly
income of the appellant/claimant was rightly assessed by
the learned Tribunal as the appellant/claimant could not
prove his tyre repairing business by any substantive piece
of evidence either documentary or oral. With regard to the
Disability Certificate, Mr. Paul did not argue much but
supported the observation passed by the learned Tribunal.
From the evidence of PW-1, I find that he has filed
both the trade licence and income certificate but those
were not admitted in evidence as exhibit and in cross-
examination, he has specifically stated that "I was running
the said business 3 years prior to the said accident. I have
got only one trade licence. I cannot file any trade licence
prior to the said accident or after the said accident. I have
no papers excepting the commissioner's certificate to show
that I used to earn Rs.3000/- per month."
In the aforesaid view of the matter as well as
keeping an eye to the notional income, I am unable to
come to any conclusion that the income of Rs.3,000/- per
month by the claimant was inflated.
Considering all the facts and circumstances as well
as in terms of evidence on record, I find that it would be
justified to assess the income of the appellant/claimant as
Rs.3,000/- per month instead of Rs.2,000/- per month.
5
So far as the Disability Certificate issued by the
Medical Board is concerned, I find the reason assigned by
the learned Judge of the Tribunal in his judgment is not
acceptable on the ground that one of the members of the
Medical Board, i.e., Dr. Tarunjit Dutta Roy, who was an
Ortho Surgeon in the Nadia District Hospital, testified in
this case and it appears from his evidence that the entire
Medical Board after examining the patient issued the
Handicap Certificate declaring him 50% permanent
disabled. He also proved the certificate signed by the other
members of the Board. Therefore, in that view of the
matter, I am unable to hold that the learned Tribunal was
justified in reducing the percentage of disability from 50%
to 25%.
Therefore, I determine the compensation as
follows:-
Monthly Income Rs. 3,000/-
Annual Income (Rs.3,000/- x 12) Rs. 36,000/-
Less: 50% disability (Rs.36,000/- x 50%) Rs. 18,000/-
Multiplier by 17 (as per age of the deceased) x 17
------------------
Total Rs.3,06,000/-
Less - Awarded by ld. Tribunal Rs.1,03,800/-
-------------------
ENHANCEMENT Rs.2,02,200/-
For the reasons, it is seen that the
appellant/claimant/injured is entitled to the total
compensation to the tune of Rs.3,06,000/- along with
interest @ 6% per annum from the date of filing of the
claim petition, i.e. on 28th February, 2005 till the deposit
of the amount.
It is reported that the appellant/claimant/injured
has already received Rs.1,03,800/- as awarded by the
learned Tribunal.
Therefore, the appellant/claimant is entitled to the
balance amount of Rs.2,02,200/- along with interest @ 6%
per annum from the date of filing of the claim petition, i.e.,
on 28th February, 2005, till the deposit of the amount.
Accordingly, the respondent no.1/National
Insurance Company Limited is directed to deposit the
enhanced amount of Rs.2,02,200/- along with interest @
6% per annum from the date of filing of the claim petition,
i.e. on 28th February, 2005, till the deposit of the amount
before the office of the learned Registrar General of this
Court, within six weeks from the date of this order.
The appellant/claimant/injured is entitled to
withdraw the balance award amount with interest.
The learned Registrar General is requested to
disburse the amount to the appellant/claimant on proper
identification.
With the above observation, the appeal, being
FMAT 959 of 2013, stands disposed of.
All pending applications, if there be any, stand
disposed of.
A copy of this order be forwarded to the learned
Tribunal 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.)
