Calcutta High Court (Appellete Side)
Ahammed @ Mir Md. Mobin Ahmed vs Modan Gopal Chatterjee & Anr on 4 January, 2023
IN THE HIGH COURT AT CALCUTTA
(Civil Appellate Jurisdiction)
Appellate Side
Present:
The Hon'ble Justice Bibhas Ranjan De
F.M.A 152 of 2012
With
CAN 1 of 2011 (CAN 6515 of 2011)
(Application not in the file)
Mir. Md. Mobin Ahammed @ Mir Mobin
Ahammed @ Mir Md. Mobin Ahmed
Vs.
Modan Gopal Chatterjee & Anr.
For the Appellant/ :Mr. Subrata Bhattacharjua, Advocate
Claimant Mr. Indranuj Dutta
For the Respondent No. 2/ :Ms. Rajesh Singh, Advocate
Insurance Co.
Hearing concluded on : December 05, 2022
Judgment on : January 04, 2023
2
Bibhas Ranjan De, J.
1. This appeal involved in a Motor Accident Claim Case under
Section 166 of the Motor Vehicles Act, arising out of the claim
petition filed by the injured himself.
2. In the accident which occurred on 04.03.2006, Mir Md. Mabin
Ahamad @ Mir Mobin Ahamad, aged about 51 years, claimed
to have worked as driver of the Bus bearing no. WB11A/2846
owned by one Mujibur Rahaman, earned Rs. 6,000/-. Injured
further claimed that on the alleged date of accident at about
2.50 p.m. injured was travelling by a bus bearing 37A/6666
from Suri towards his house and the said bus was running
with high speed and due to rash driving said bus capsized. As
a result, claimants sustained injury on person and was sent to
Dubrajpur Hospital wherefrom he was shifted different
hospital one after another. After the accident Khairashole PS
case No. 8 of 2006 dated 04.03.2006 was started and after
investigation charge sheet was filed against the driver of the
bus no. WB 37A/6666.
3. New India Assurance Company/ respondent of this appeal
entered appearance and contested the claim petition by filing a
written statement. Specific case of the Insurance Company
that there was no negligence on the part of the driver of the
bus bearing no. WB 37A/6666 and claimant did not suffer any
injury hereby.
4. To prove the case claimant/appellant examined himself as
PW-1 who corroborated all the statements made in the claim
petition with a prayer for compensation to the tune of
Rs.6,64,400/-.
5. In cross-examination injured testified that he came to Court to
depose after travelling 30 k.m.by a mini bus. He denied the all
suggestions thrown to him during cross examination.
6. PW-2, Ranjit Mukherji, claimed himself to be an eye-witness to
the accident due to rash and negligent driving of the bus no.
WB37A/6666 and as a result many passengers including
claimant sustained injury. He also supported treatment of
claimant in different medical institutions.
7. PW-3, Sukur Khan, also claiming himself to be an eye witness
to that accident corroborated the same.
8. PW-4, Dr. Abir Banerjee, Block Medical Officer, Dubrajpur
Primary Health Centre, District Birbhum has deposed that on
04.03.2006 he treated claimant in the emergency department
of the hospital. He submitted injury report which was
admitted as exhibit 10 and 10/1. He referred the claimant to
Sub Divisional Hospital Suri for better management. Cross-
examination of this witness reveals that he had no knowledge
about the accident. But, he stated that injured passengers
came to his health centre after the accident.
9. PW-5, Mujibar Rahaman, claimed himself as owner of the bus
bearing no. WB11A/2846 and claimant was the driver of the
bus. He issued income certificate marked as exhibit 12.
10. PW-6, Rabindranath Singha, a panel investigator of New
Indian Assurance Company Ltd. who sated as follows
" .......Md. Mobin Ahamad was the victim of the case. On
investigation I found that he was the driver of bus
bearing no. WB 37A/6666 who was coming from Suri to
Haripur. The bus was capsized near Pandra Gita Bhavan
Patharkuchi village at about 2.50 p.m. the injured (sic)
handed over to me medical papers including disability
certificate. I investigate into the matter and found the
disability certificate as genuine......" The report of the
investigator was admitted as exhibit 13.
11. PW-7, Samir Mukherji , claimed himself to be an upper
division assistant attached to Asansol SD Hospital, testified
that on 28.12.2006 one Medical Board was constituted to
issue handicapped certificate which was filed and marked as
exhibit 14.
12. In course of their evidence a good number of documents
were marked as exhibit 1 to 14 including FIR, Charge sheet,
seizure list, treatment sheet, injury report, investigation report
of, panel investigator by Insurance Company, disability
certificate etc.
13. Ld. Tribunal after considering all evidence on record,
assessed monthly income of the injured as Rs. 3,500/- i.e.
42,000/- per annum. After applying multiplier 11 he assessed
compensation at Rs. 2,34,800/- after reducing the percentage
of disability from 70% to 40%, including Rs. 50,000/- as non-
pecuniary damages.
14. Not satisfied with the quantum of compensation,
claimant has filed the present appeal.
15. Both the Ld. Advocates appearing on behalf of the
contesting parties to this appeal were adi dem with the
observation of the Ld. Tribunal regarding following issues:-
A. Accident occurred on 04.03.2006 due to rash and negligent
driving of the bus bearing no. WB37A/6666
B. Income of the injured
C. Age of the injured
16. Therefore, I find hardly any scope to discuss on the
aforementioned issues. In this appeal entire argument was
revolving around the disability certificate and authority of the
tribunal to reduce the percentage of disability.
17. Ld. Advocate, Mr. Subrata Bhattacharjya, appearing on
behalf of the appellant has submitted that Ld. Tribunal
reduced the percentage of disability without any reason. Mr.
Bhattacharjya referred to the observation of the Ld. Tribunal
on that issue.
18. In opposition to that, Ld. Advocate Mr. Rajesh Singh,
appearing on behalf of the respondent has contended that
there is no evidence on record that claimant was to too unable
to do any other work. Mr. Singh also referred to cross-
examination of the injured wherefrom it would reveal that
claimant undertook a journey of 30 kms to attend Court to
depose. According to Mr. Singh it was not possible for a person
having 70 % disability to undertake a journey of 30 kms that
too by a mini bus.
19. However, before going into the contention of the parties,
I find it profitable to reproduce the observation of the Ld.
Tribunal on this issues, as follows:-
" Immediately after the accident the claimant, victim was
taken to Dubrajpur B.P.H.C P.W. 4 treated the claimant
on 4.3.06 at about 3.00 P.M. and on examination he
found injury on the right chest wall including ribs and
including ribs and right shoulder of the claimant. Ext. 10
is the ticket of such treatment and ext. 10/1 is a
Certificate as to injury of the claimant. It is articulated
by the claimant that after first aid treatment at
Dubrajpur B.P.H.c he was taken to S.D. Hospital at
Asansol and therefrom was shifted to Kedarnathji
Memorial Hospital, Raniganj and therefrom to New
Florance Nurshing Home, Asansol and therefrom he was
shifted to Nightingale Diagnostic Centre Pvt. Ltd.,
Kolkata and also so many Hospitals and Doctors.
Excepting the Doctor of Dubrajpur B.P.H.C no doctor of
any Hospital has come forward to substantive the nature
of the injuries sustained by the claimant. P.W. 7 is a U.D.
Assistant of Asansol S.D. Hospital has proved the
physical Handicapped Certificate issued by the Medical
Board of Asansol Sub-Division Hospital. The said
certificate (Ext. 14) speaks that the claimant sustained
multiple fracture of 6th 7th and 8th ribs of right chest
wall injuries and has become a permanently disabled
person to the extent of 70% Ld. Advocate appearing the
Insurance Company has drawn my attention to a decision
of our parent High Court reported in 2005 (1) T.A.C. 66
(Sudhir Bhuiya vs. National Insurance Co. Ltd.) and
submitted that when neither of the Doctor of Medical
Board have come forward to substantiate the nature of
disability, the contests of the document (Ext. 14) has
become a worst piece of hear-say evidence. According to
the observation of the Hon'ble Court, Handicapped
Certificate cannot be considered as sacrosanct because
the Insurance Company did not get opportunity to cross-
examine the Doctor to ascertain the nature of disability
whether due to such disability the claimant being driver
would not be able to drive the vehicle. Ld. Advocate for
the claimant has placed reliance to a decision reported
in AIR 1976 S.C. 222 (P.N. Singh Deo- vs. Sri Nivas Subata
and another) and submitted that when in that decision
the loss of left hand of the carpenter was considered as
100% loss of his earning capacity such principle may
also be applied here. The decision referred by the Ld.
Advocate for the claimant could not inspite me because in
case of carpenter loss of one hand means, loss of his
earning capacity because a carpenter cannot perform his
job any single hand. But in our case hands and legs of
the claimant were not affected in any way and, therefore,
being a driver it cannot be said that both the case are
identifical in nature. There is no evidence whatsoever
that due to such injuries suffered by the claimant in the
said accident, he is not position to continue his
profession as driver.
Therefore, percentage of disability assessed by the
Medical Board showing disability of the claimant to the
extent of 70% appears to be exaggerated. However,
taking into consideration of the fact that the claimant
had sustained injuries of fracture of 3 ribs of his right
of his right chest wall, I assess the disability to the
extent of 40% for the purpose of this case."
20. The entire evidence on record together with the
observation of the Ld. Tribunal boils down to the following
results:-
A. appellant injured was treated in different medical
institutions. Immediately after the accident injured was taken
to Dubrajpur Primary Health Centre and the doctor attached
to the said Health Centre (PW-4) treated him on the alleged
date of accident. He testified before the Tribunal and explained
the injury on the right chest wall and right shoulder. He
referred the injured to Asansol, Sub Divisional Hospital for
better management. Unfortunately, claimant/injured failed to
examined any other doctor from any other hospital or nursing
home to prove the severity of the injury.
B. Disability certificate was proved by one UD Assistant of
Asansol SD Hospital. Naturally, no doctor of the Medical Board
was examined by the Tribunal with a view to provide an
opportunity to the respondent/ Insurance Company to cross
examine any of the doctors of the Medical Board to ascertain
the ability of the claimant to continue with his job of driving.
In this regard, Ld. Tribunal rightly relied on the authority of
Sudhir Bhuiya v. National Insurance Company Ltd.
Reported in 2005 (1) TAC 66 where Hon'ble Court held that
handicap certificate can not be considered as sacrosanct as
Insurance Company did not get opportunity to cross-examine
the doctor to ascertain the nature of disability.
C. Admittedly, claimants did not receive any injury on his
hands and legs.
D. From the cross examination claimant/injured it appears
that he undertook a journey of 30 kms. by a mini bus to
attend Court to depose.
21. In terms of aforesaid reasons, I am unable to disagree
with the Ld. Tribunal with regard to reduction of percentage of
disability from 70% to 40%.
22. In the result appeal fails. The judgement and award
passed in MAC Case No. 45 of 2007 stands affirmed.
23. All pending applications, if any, stand disposed of.
24. Let a copy of this judgement along with the Tribunal
record be transmitted back at once.
25. 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.]
