Calcutta High Court (Appellete Side)
The Oriental Insurance Company ... vs Dipu Mandal @ Dipak Mandal & Anr on 29 March, 2023
13
29.03.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FMA 294 of 2006
with
IA No. CAN 1 of 2005 (CAN 152 of 2005)
(Application is not in the file)
The Oriental Insurance Company Limited
Vs.
Dipu Mandal @ Dipak Mandal & Anr.
Mr. Sanjay Paul
... For the appellant/Insurance Company
None appears on behalf of the respondent/
claimant in spite of service of administrative notice issued
by this Court. This appeal is pending since 2004.
Learned advocate appearing on behalf of the
appellant/Insurance Company submitted that the appeal
may be disposed of due to long pendency.
In such circumstances, the appeal is taken up for
disposal on merit.
This appeal is directed against the judgment and
award dated 23rd September, 2004 passed by the learned
Judge, Motor Accident Claims Tribunal, Durgapur, in
connection with MAC Case No.113 of 2001 under Section
166 of the Motor Vehicles Act, 1988 whereby the learned
Tribunal awarded compensation to the tune of
Rs.2,55,000/-.
The claim petition was filed by the claimant/
injured Dipu @ Dipak Mondal in a motor accident
happened on 21st August, 2001 at about 1 p.m. while the
claimant/injured was going on a motor cycle as pillion
rider towards City Centre, Durgapur. At the time, one
Dumper, bearing registration no.WB-37/7819, took a turn
all on a sudden towards EPIP More in a rash and negligent
manner and knocked down the motor cycle. As a result,
the victim fell down from the motor cycle and received
severe injuries on his person, particularly, in his hands
and legs. He was taken to Durgapur Sub-Divisional
Hospital for treatment and he was also treated at CMC
Hospital, Vellore. At the time of accident, the injured was a
man of 34 years having income of Rs.5,000/- per month
as a two-wheeler mechanic. The said dumper, bearing
registration no.WB-37/7819, was duly insured with the
Oriental Insurance Company Limited.
The Oriental Insurance Company Limited
contested the case by filing written objection denying all
material averments of the claim petition contending, inter
alia, that the claimant is not entitled to any compensation,
as prayed for.
To prove the case, the claimant examined himself
as PW-1 and in course of his evidence he corroborated the
entire averments in the claim petition. He testified in his
evidence that he was engaged in a cycle repairing works
when he met with the accident and he used to earn
Rs.5,000/- to Rs.6,000/- per month. The income stated by
the claimant/injured was denied in course of his cross-
examination.
One Samaresh Kesh was examined as PW-2 who
stated in his evidence that the claimant had a motor
garage at Rajbandh where he used to repair cycles. He also
claimed himself to be an eyewitness to the accident. In
cross-examination, PW-2 has specifically stated as
follows:-
"Dipu Mondal at present somehow works in
the garage."
In course of evidence, a good number of medical
documents along with insurance policy and written
complaint were admitted in evidence.
After analyzing the entire evidence along with the
materials on record, the learned Tribunal assessed
compensation to the tune of Rs.50,000/- towards medical
expenses, Rs.40,000/- towards pain and suffering,
Rs.1,20,000/- towards pecuniary loss and a sum of
Rs.1,00,000/- towards future pecuniary loss totaling
Rs.3,10,000/-. But after deducting Rs.55,000/-, the
learned Tribunal awarded compensation to the tune of
Rs.2,55,000/-.
After careful scrutiny of the evidence on record, I
do not find anything to disbelieve the injury sustained by
the respondent/claimant by the involvement of one
dumper, bearing registration no.WB-37/7819, due to its
rash driving. I also find from the record that the said
dumper was duly insured with the Oriental Insurance
Company Limited.
Mr. Sanjay Paul, learned advocate, appearing on
behalf of the appellant/Insurance Company did not argue
on the issue of injury sustained by the claimant/
respondent in the motor accident by the involvement of the
dumper, bearing registration no.WB-37/7819, which was
duly insured with the Oriental Insurance Company
Limited. Mr. Paul only contended in respect of assessment
of quantum of compensation. It is submitted by Mr. Paul
that the learned Judge did not calculate pecuniary loss of
Rs.1,20,000/- and future pecuniary loss to the tune of
Rs.1,00,000/- properly.
It is needless to mention that the claimant/
respondent did not take any plea on disability either in the
claim petition or in the evidence and it also appears from
the record that no disability certificate was also filed on
behalf of the claimant.
From the evidence of witnesses, it is not intelligible
whether the claimant had any garage of his own or work in
a garage. Be that as it may, it is not disputed that he was
a mechanic of a cycle and not motor cycle. PW-2 in his
evidence and also in cross-examination has testified that
after the accident the claimant was working in a garage
presently.
Considering the materials on record, particularly,
the medical documents, I propose to modify the
compensation as follows:
Towards pain and suffering Rs.50,000/-
Towards Medical Expenses Rs.50,000/-
With regard to the pecuniary loss, if I come to the
claim petition, I find that the income of the claimant was
Rs.5,000/- per month, though in his evidence, he claimed
Rs.5,000/- to Rs.6,000/- per month. However, no
document has been filed in this case in support of
ownership of the garage. Even if I take Rs.5,000/- per
month, I find that the claimant was engaged in treatment
not more than a year and it is evident from the record that
he is working in the garage presently. However, after
calculating the pecuniary loss for a year after considering
the monthly income of Rs.5,000/-, it comes to Rs.60,000/-.
Thereby the claimant is entitled to compensation to
the tune of Rs.1,60,000/- (Rs.50,000/- + Rs.50,000/- +
Rs.60,000/-).
Accordingly, the appellant/Oriental Insurance
Company Limited is directed to deposit the entire awarded
amount of Rs.1,60,000/- along with interest @ 6% per
annum from the date of filing of the claim petition, i.e., on
11th December, 2001 till the actual deposit of the amount
after adjustment of statutory amount of Rs.25,000/-
before the office of the learned Registrar General of this
Court, within six weeks from the date of this order.
The claimant/respondent is entitled to withdraw
the entire compensation amount with interest.
The learned Registrar General is requested to
disburse the amount with interest and accrued interest to
the claimant/respondent on proper identification and
proof.
In the result, the appeal, being FMA 294 of 2006,
succeeds and stands disposed of on merit along with the
application, being CAN 1 of 2005 (CAN 152 of 2005).
All pending applications, if there be any, stand
disposed of.
Department is directed to inform the claimant
regarding disposal of this appeal, forthwith.
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.)
