Calcutta High Court (Appellete Side)
Sk. Mainul vs The Oriental Insurance Co. Ltd on 11 September, 2024
11.09.2024
Piya
ct no. 30 FMA 805 of 2006
sl no. 6 With
CAN 2 of 2015
(Old No.: CAN 4462 of 2015)
With
CAN 3 of 2017
(Old No.: CAN 3876 of 2017)
With
CAN 4 of 2023
Sk. Mainul
Vs.
The Oriental Insurance Co. Ltd.
For the Appellant : Mr. Krishanu Banik.
For the Respondent/ : Ms. Gopa Das Mukherjee.
Insurance Company
Re : IA No.: CAN 4 of 2023
1. IA No.: CAN 4 of 2023 is not pressed by the learned
counsel for the appellant and is thus rejected being
not pressed.
2. The present appeal has been preferred by the claimant
against the Judgment and Award dated 6th day of
December, 2004 passed by the learned Judge, Motor
Accident Claims Tribunal (Fast Track, 2nd Court),
Asansol, Burdwan in MAC Case No.45/2002 &
78/2001, under Section 166 of the Motor Vehicles
Act.
3. Facts :-
"..........On 07.12.2000 the petitioner Sk. Mainul
was travelling in a dumper bearing No.WB-
37/6705 being Khalasi (worker) of the same. The
said dumper was proceeding towards Churulia
after unloading coal at Charanpur siding. At that
time the dumper over turned. In the said accident
four fingers of the petitioner cut down.
Accident was caused due to fault of the driver of
dumper. He was treated in the Nursing Home. He
used to earn Rs.1800/- as his remuneration. He is
now unable to do any work due to his injured
hand and operation of abdomen. He is not able to
do daily usual work. So the injured has filed this
case and prayed for compensation of Rs.3
lakhs................"
4. The case was contested by Oriental Insurance Co. Ltd.
By filing written statement denying all facts as made
in the plaint and contending inter alia, that the
petitioner has no cause of action and this case is not
maintainable. The specific defence of the opposite
party/Insurance Company is that the petitioner
sustained no injury in his hand due to any accident
on 07.12.2000 near Charanpur. He was not admitted
in any Hospital namely Asansol Medical Centre
Private Ltd. The alleged accident had not taken place
due to fault of the driver. The petitioner is able to do
his usual work with his right hand. The driver of the
offending vehicle had no valid driving licence. So, the
O.P/Insurance Co. is not liable to make any payment
to the petitioner. So, this case is liable to be
dismissed.
5. The claimants examined two witnesses and proved
relevant documents which were marked as Exhibit-1
to 2 series.
6. Considering the materials on record the learned
tribunal held as follows:-
".......... MAC Case No. 45/2002 and 78/2001
Dated 06.12.2004
............Considering evidence and the injury of the
petitioner, I find that the petitioner sustained
grievous injuries. As his four fingers were amputed.
So, I like to award Rs.5,000/- as compensation for
pain and sufferings. Accordingly, the victim is
entitled to compensation of Rs.65,000/-. The
amount, if any, paid in any case under Section 140
of the M.V. Act over the self same incident, that shall
be deducted from the total awarded amount...........
Sd/-
Judge, MACT
(Fast Track 2nd Court)
Asansol......"
7. From the materials including evidence on record,
the following is evident:-
i) The claimant in the present case is the injured
and admittedly he lost his four fingers of his left
hand (Exhibit-3).
ii) The disability certificate of the medical board is
prima facie valid and has been marked as
exhibit-3 by the tribunal. The said certificate
shows that the claimant injured had suffered
permanent disability to the extent of 25%. The
certificate was issued in July, 2001. The accident
in this case occurred in December, 2000.
iii) Age of the injured in 2001 is shown as 20 years,
so multiplier 18 will be applicable.
iv) Motor Accident case no.3 of 2000 dated
07.12.2000 of Barabali Police Station has been
proved by appellant/claimant (Exhibit-6 series).
The said document proved the accident in the
present case and also that the offending vehicle
is a dumper. The said offending dumper caused
the accident in the present case in which the
victim suffered the injuries.
v) Exhibit-4 is the copy of the Insurance certificate
showing that the offending vehicle had valid
insurance at the relevant time.
vi) The victim in this case has claimed that he was
the 'Khalasi' of the offending dumper and used to
get monthly salary of Rs.1800/- per month. No
documents were produced in support of the said
income.
vii) The learned Tribunal considering the said fact
held the income in respect of the victim as
notional income of Rs.1500/- (exhibit-2).
viii) As the accident occurred in year 2000, income is
taken as Rs. 3000/- per month.
ix) Exhibit-2, proves that the victim was aged 20
years old at the time of accident.
x) Exhibit-2 is the discharge certificate, which also
shows that the injured was admitted in Hospital
from 07.12.2000 to 18.12.2000 (10 days).
8. Accordingly, the "just compensation" in the present
case would be as follows:-
3000x12x18x25% Rs. 1,62,000/-
Towards Medical expenses Rs.50,000/-
Non-pecuniary damages Rs.50,000/-
Loss of earning Rs.50,000/-
Total amount Rs.3,12,000/-
9. Admittedly, the Claimant/Appellant has received the
amount of compensation of Rs. 65,000/- together
with interest in terms of order of the learned
Tribunal. Accordingly, the claimant is now entitled to
the balance amount of compensation of Rs.
2,47,000/- together with interest at the rate of
6% per annum from the date of filing of the claim
application till deposit.
10. Taking into consideration, the amount already
received by the Claimant/Appellant, the
Respondent No. 1/Insurance Company shall
deposit the balance amount, along with the interest,
with the learned Registrar General, High Court,
Calcutta, within a period of six weeks, who shall
release the amount in favour of the Claimant, upon
satisfaction of his identity and payment of ad-
valorem Court fees, if not already paid.
11. The appeal being FMA 805 of 2006 stands
disposed of. The impugned judgment and award
of the learned Tribunal under appeal is modified
to the above extent.
12. No order as to costs.
13. All connected applications, if any, stand disposed of.
14. Interim order, if any, stands vacated.
15. Copy of this Order be sent to the Learned
Tribunal, along with the trial court records, if
received.
16. Urgent Photostat certified copy of this order, if
applied for, be given to the parties on usual
undertaking.
(Shampa Dutt (Paul), J.)
