National Insurance Company ... vs Md Ajizur Rahman @ Ajizul Hoque
2021 Latest Caselaw 3116 Gua

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GAHC010012162018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : MACApp./300/2018

         NATIONAL INSURANCE COMPANY LIMITED
         (SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA)
         REGISTERED HEAD OFFICE AT 3, MIDDLETON STREET, CALCUTTA 700071
         REPRESENTED BY THE ASSTT. MANAGER, GAUHATI REGIONAL OFFICE,
         BHANGAGARH, GUWAHATI-781005



         VERSUS

         MD AJIZUR RAHMAN @ AJIZUL HOQUE
         S/O MD. ALTAB ALI, VILL. JAPARI, P.O. TAPTOLA, P.S. BHURAGAON, DIST.
         MORIGAON, ASSAM, PIN 782121

         2:DIVISIONAL MANAGER
          UNITED INDIA INSURANCE CO. LTD. JAGIROAD BRANCH
          DIST. MORIGAON
         ASSAM
          PIN 782410

         3:MR. SUBUDH KR. BORA (OWNER)
          S/O LATE MOHAN CH. BORA
         VILL. SUKDAL BORBORI (MAJATI)
          P.O. SUKDAL SARUBORI
          P.S. MIKIRBHETA
          DIST. MORIGAON
         ASSAM
          PIN 782126

         4:MD. MAZIBUR RAHMAN
          S/O MD. ALTAB ALI
         VILL. JAPORI
          P.O. TAPTOLA
          P.S. BHURAGAON
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              DIST. MORIGAON
              ASSAM
              PIN 78212

Advocate for the Petitioner   : MS. R D MOZUMDAR

Advocate for the Respondent : MR. M TALUKDAR (R1)




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                        ORDER

25 .11.2021

Heard Ms. R.D. Mozumdar, learned counsel appearing for the appellant as well as Mr. M.Talukdar, learned counsel representing the respondents.

2. This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988 against the Judgment and Order dated 10.04.2017 passed by the learned Member, MACT, Morigaon in MAC Case No. 38/2014.

3. On 10.06.2014, in broad daylight, at about 7.15 AM, the claimant was travelling with his brother in a motorcycle bearing Registration No. AS-21-D-6618. The motorcycle was driven by the brother of the claimant as the claimant was the pillion rider. When they reached near Moinaguri L.P. School, one TATA Spacio vehicle bearing Registration No. AS-21-B-0134 which was coming from the opposite direction hit the motorcycle. The claimant as well as his brother sustained injuries. Since the claimant sustained grievous injuries, he was shifted to Dispur Hospital, Guwahati. The claimant had a fracture of bone on his right leg. At Guwahati, he took treatment from 10.06.2014 to 16.06.2014 and from 07.07.2014 to 02.07.2014 as indoor patient. Now, the claimant claims that because of the accident he became physically handicapped.

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4. The Tribunal assessed the claim as under:

      (a)    For permanent disability         :     Rs.7,65,000.00
      (b)    Medical expenses                :      Rs.3,32,334.00
      (c)    Pain and suffering              :     Rs. 25,000.00
      (d)    Conveyance                      :     Rs. 25,000.00
      (e)    Cost of litigation              :     Rs. 25,000.00
            Total                        :        Rs.11,72,334.00

5. The Tribunal held that both the vehicles were equally responsible for the accident and therefore asked the appellate Insurance Company to pay half of the said award.

6. On being aggrieved by the aforesaid judgment, the present appeal has been filed on the ground that the Doctor who was examined by the claimant as PW-2, did not assess the loss of earning capacity, even then the Tribunal on its own erroneously assessed the loss of earning capacity as 50%.

7. It may be stated that the other insurance company did not file any appeal.

8. I have given my anxious consideration to the submissions made by the learned counsels for both sides.

9. There is no denial that there was a head on collision between two vehicles on the middle of the road. The claimant said before the Tribunal that his monthly income before the accident, was Rs.9,500/-. The claimant could not produce any documents to prove his monthly income and, therefore, the Tribunal notionally held his monthly income to be Rs.7,500/-. The Tribunal held the permanent disability to be 50% and assessed the compensation for permanent disability at Rs.7,65,000/-.

10. For assessing permanent disability, there are several recognized means and one of them is the opinion of the Court. Considering the expenses incurred and the period of treatment, the Tribunal has assessed the permanent disability at 50%. At this juncture, this Court is of the opinion that being an appellate Court, it is difficult to have an opinion pertaining to factual matters to which the Tribunal had the opportunity to assess. The provisions for payment of compensation under the M.V. Act Page No.# 4/4

are beneficial legislation. This Court further opines that the learned Tribunal has committed no error while assessing the amount of disability of the claimant.

11. It is already mentioned that the accident took place when two vehicles collided with each other on the road. Therefore, this Court finds no error on the part of the Tribunal when it held both the vehicles equally responsible for the accident.

12. This Court is again of the opinion that the Tribunal has correctly asked the appellant to pay half of the total compensation of Rs. 11,72,334/-.

13. For the aforesaid premised reasons, the appeal is found to be devoid of merit. Therefore, the appeal is dismissed and disposed of accordingly.

14. Send back the LCR.

JUDGE

Comparing Assistant