Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Sri Palash Prasun Giri & Anr on 1 October, 2024
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
FMA 2047 of 2015
(FMAT 214 of 2015)
National Insurance Company Limited
Vs.
Sri Palash Prasun Giri & Anr.
For the Appellant/ : Ms. Sucharita Paul.
Insurance company
For the Respondent No.1/ : Mr. Pratip Kr. Chatterjee,
Claimant Mr. Arijit Dey.
For the Respondent No.2/ : None.
Owner
Hearing concluded on : 01.10.2024
Judgment on : 01.10.2024
2
Shampa Dutt (Paul), J.:
1. The present claim appeal has been preferred by Appellant/Insurance
Company against the judgment and award dated 26th August, 2014
passed by the learned Additional District Judge, redesignated Court,
Paschim Medinipur, in MAC Case No. 259 of 2011, under Section 166
of the Motor Vehicles Act, 1988.
2. FACTS :-
"........The petitioner Palas Prasun Giri, Doctor by
profession, aged 34 years having income of
Rs.35,000/- per month was subjected to victimize
on road by the motor accident with the offending
vehicle bearing No. WB-29/0499 while he was
standing along with one Surojit Singha on the
morum road by the side of the pitch road along
with NH-6 at Chandi more under P.S. Jhargram, at
that time such offending vehicle rashly and
negligently dashed against both of them and in
consequence of such accident they fell down on the
road and sustained severe injury on their person.
The local people came forward and admitted the
other companion namely Surojit Singh in Jhargram
S.D. Hospital wherein he was declared dead and
the present claimant after getting primary
treatment in that hospital, was shifted to Calcutta
for his better treatment. Thereafter, he was
medically treated from 04.05.2011 to 11.05.2011
on admitting himself in Apollo Gleneagles Hospital
at Calcutta and thereafter, at different hospitals
and nursing home with a view to recover from ill
health and spent Rs.4,50,000/- towards the
expenses of medical treatment and other incidental
cost. The accident occurred on 04.05.2011 due to
rash and negligence of the driver of the offending
vehicle and thereby he suffered to a great extent
financially along with his family members........"
3. O.P. 2/National Insurance Company Ltd., contested the case by filing
written statement and denied the positive case of the claimant. The rash
and negligence of the driver of the offending vehicle as alleged was totally
denied by this answering O.P. The Insurance Company is however,
taking defence in view of Sec. 170 of M.V. Act as available to the owner of
the vehicle, though the owner of the vehicle did not contest the case in
spite of summons served.
4. The Claimant examined four witnesses. They were cross-examined by
the insurance company. Relevant documents were proved and marked as
Exhibits 1 to 19 series.
5. The Insurance Company has proved the original salary statement of the
Respondent No. 1/Claimant which has been marked as Exhibit A (on
admission).
6. On conclusion of the hearing the learned Tribunal granted
compensation as follows :-
".......MAC Case No. 259 of 2011
Dated: 26th August, 2014
On meticulous and earnest consideration of the
entire materials on record, as available keeping in
view of the said observation, I find that the
petitioner being the injured person of the accident
in issue on road is entitled to have compensation
from this tribunal. The following calculation is thus
made to determine the actual compensation in this
case. The factual matrix and documentary prove I
assessed that the medical expenses of
Rs.3,57,187/- was actually incurred for receiving
treatment of the petitioner from different hospitals
along with Apollo Hospital and he is entitled to
receive the same as medical expenses. The
petitioner being a doctor due to such injury not
only suffered financial loss since he stated by his
deposition in cross examination that he was not
without pay for 13 months but also he suffered
loss owing to disbursement of his costly medical
treatment which was required for recovery of his ill
health. He being a doctor also suffered mental pain
and agony for his recovery from his injured
condition to a better position so that he can
continue his profession either to maintain his
family or to render service to the locality where he
comes. Considering such aspect, I am inclined to
award Rs.3,00,000/- towards mental pain and
agony to the petitioner. The income as comes into
existence on proving the competent authority that
the petitioner used to earn at least Rs.35,000/- at
the time of incident. On calculating such monthly
income his yearly income comes into existence
Rs.4,20,000/- at the time of such incident. Due to
accident he was badly injured and incapable to
perform his work as doctor and as such I am
inclined to award Rs.3,00,000/- for loss of his
future income though I am not inclined to make
any observation or payment of award on the basis
of extent of disablement as of the petitioner in view
of the certificate produced as I have already
observed. From the medical document i.e.
prescription and investigation report as submitted,
I find that the nature of injury as sustained by the
petitioner in this case is within the purview of
grievous injury and for that purpose I am inclined
to award Rs.50,000/-. On arithmetical calculation
the aggregate of compensation in this case as
awarded is Rs.10,07,187/- which will serve the
purpose in this case. However, the claim as
submitted in this case by the claimant is
Rs.8,00,000/-. But the tribunal enjoys unfettered
jurisdiction to pass award more than claim on the
basis of assigning reasons and factual materials.
In the instant case, I am inclined to award such
amount to the petitioner due to injury sustained in
the incident in issue.
Sd/-
Motor Accident Claim Tribunal
Additional District Judge,
Re designated Court,
Paschim Mednipur......... "
7. Being aggrieved, the Insurance Company has preferred the present
appeal on the ground :-
That the learned Tribunal granted excessive compensation which
is disproportionate to the injuries sustained by the claimant and
erroneously granted Rs.6,50,000/- as non-pecuniary
compensation.
8. Considering the materials including the evidence on record, this
Court finds that :-
(i) The injured Claimant is a doctor by profession and was aged
about 34 years at the time of the accident and has proved his
income as Rs.35,000/- per month.
(ii) The incident in this case which injured the claimant occurred due
to the rash and negligent driving by the offending vehicle which
had a valid insurance.
(iii) The claimant was medically treated from 04.05.2011 to
11.05.2011 and incurred medical expense to the tune of
Rs.4,50,000/-.
(iv) Though the insurance company tried to deny the said salary of
the Claimant by producing the document marked Exhibit A, the
Tribunal rightly did not accept the contention of the Insurance
Company.
(v) Medical papers produced before the Trial Court were duly proved.
The medical expenses have been rightly assessed by the
Tribunal to be Rs.3,57,187/-. The Tribunal also rightly assessed
that the claimant was entitled to Rs.3,00,000/- towards mental
agony and accepted the income of the claimant as
Rs.35,000/- per month at the time of accident. For grievous
injury, the learned Tribunal granted Rs.50,000/- and finally
granted a total compensation of Rs.10,07,187/-. Though the
claim was for Rs.8,00,000/-. Exhibit 9 is the disability
certificate. The said disability certificate has been issued by the
medical board of Uluberia Sub Divisional Hospital which is a
valid disability certificate and his disability has been
calculated at 40%. (Bajaj Allianz General Insurance
Company Pvt. Ltd. Vs Union of India and ors., 2021 (4)
T.A.C. 676 (S.C.))
9. Considering the amount of compensation granted by the learned
Tribunal, this Court finds that the Tribunal rightly assessed the
compensation and the compensation granted by the Tribunal is 'Just
Compensation' and the finding of the learned Tribunal requires no
interference by this Court.
10. The appeal being FMA 2047 of 2015/ FMAT 214 of 2015 is thus
disposed of. The impugned judgment and award of the learned
Tribunal under appeal is affirmed.
11. All connected applications, if any, stand disposed of.
12. Interim order, if any, stands vacated.
13. Copy of this Judgment be sent to the Learned Tribunal, along with the
trial court records, if received.
14. Urgent Photostat certified copy of this Judgment, if applied for, be given
to the parties on usual undertaking.
(Shampa Dutt (Paul), J.)
