Jahirul Islam Laskar @ Jahirul ... vs Md. Eadi Mia Choudhury And Anr
2022 Latest Caselaw 3298 Gua

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GAHC010225892014




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

                                Case No. : MACApp./149/2014

            JAHIRUL ISLAM LASKAR @ JAHIRUL HAQUE,
            S/O MD. ABDUL TAHIR LASKAR, VILL. and P.O. KAZIDAHAR, P.S. SONAI,
            DIST. CACHAR, ASSAM.

                               VERSUS

            MD. EADI MIA CHOUDHURY and ANR,
            S/O LATE GIA UDDIN CHOUDHURY OF SONAI, DIST. CACHAR, ASSAM,
            OWNER OF THE VEHICLE NO. AS-11/0587

            2:THE NATIONAL INSURANCE CO.LTD.
             REPRESENTED BY THE DIVISIONAL MANAGER
             CLUB ROAD, CAPITAL TRAVELS BUILDING
             P.O. SILCHAR-1, DIST. CACHAR, ASSAM.

Advocate for the Appellant        :    MR. S. DUTTA, SENIOR ADVOCATE,
                                       MS. S. MOCHAHARI, ADVOCATE.
Advocate for the Respondent No. 2 :    MR. R.K. BHATRA, ADVOCATE,
                                       MS. P. HUJURI, ADVOCATE.


                                      BEFORE
                             HONOURABLE THE CHIEF JUSTICE

                                         ORDER

Date : 31-08-2022

Feeling aggrieved and dissatisfied by the judgment and award dated 14.09.2006, passed by the Motor Accident Claims Tribunal, Hailakandi, in MACT Case No. 378/2005, the original claimant has preferred this appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "Act of 1988").

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2. The following facts emerge from the record of the appeal:

(i) The appellant/original claimant was travelling in a bus on 14.04.2005 from Dowarbond to Silchar in the district of Cachar. It is the case of the appellant/original claimant that while he was travelling in the bus bearing registration No. AS-11-0587, when the bus reached the Silcoori Telephone Exchange on PWD Road, it met with an accident because of which the appellant/original claimant received grievous injuries on different parts of his body. An FIR was lodged with the jurisdicational police station and the present Claim Petition was filed by the appellant/original claimant under section 166 of the Act of 1988 claiming compensation to the tune of Rs. 4,10,000/-. It was the case of the appellant/original claimant that he was 31 years old on the date of the accident and was doing his business out of which he had an income of Rs. 6,000/- per month. It is the further case of the appellant/original claimant that he received multiple fracture injuries such as (i) fracture of the shaft of left humerus, (ii) fracture of the shaft of left femur with ipsilateral trochanteric fracture, (iii) fracture of the both patella, (iv) grievous injuries on the face resulting in fracture of the mandible, (v) fracture on the right hand and (vi) multiple injuries all over the body. Due to such injuries sustained he was hospitalized and had to undergo operation twice at Silchar Medical College and Hospital and also by other private doctors. It is the further case of the appellant/original claimant that he had to incur medical expenses and other expenses to the tune of Rs. 40,000/-. It is the further case of the appellant/original claimant that his treatment is still continuing and that he has become permanently disabled and is facing financial hardships. According to the appellant/original claimant all the respondents are vicariously liable to compensate the appellant/original claimant either jointly or severally. It is the specific case of the appellant/original claimant that the accident occurred due to the rash and negligence of the driver of the vehicle involved in the accident.

(ii) On notice issued by the Claims Tribunal, the insurance company appeared and filed its written statement. The owner of the vehicle also filed his written Page No.# 3/7

statement. The appellant/original claimant examined himself under Order 18 Rule 4 of the CPC and also relied upon the documentary evidence, more particularly, the medical certificates including discharge certificate issued from the Silchar Medical College and Hospital. The appellant/original claimant also relied upon the photographs to exhibit the degree of injuries sustained by him in the accident. However, the claimant did not examine the doctor who had treated him to prove the degree of disability and has not adduced any evidence to prove the claim of income of Rs. 6,000/- per month.

(iii) The Tribunal after consider the evidence on record, while partly allowing the claim petition, awarded Rs. 40,000/- as compensation with 7% interest from the date of the judgment and, being aggrieved by the same, the claimant has filed this appeal.

3. I have heard Mr. S. Dutta, learned senior counsel assisted by Ms. S. Mochahari, appearing for the appellant. I have also heard Mr. R. K. Bhatra, learned counsel assisted by Ms. P. Hujuri, learned counsel, appearing for the respondent no. 2/insurance company. Non for other respondents.

4. Mr. S. Dutta, learned senior counsel for the appellant/original claimant has taken this court through the impugned judgment and award passed by the learned Tribunal and has contended as under:

(i) That the Tribunal has awarded a meager amount of Rs. 5,000/- as pains and sufferings even though the evidence clearly establishes the fact the appellant sustained serious inquires and had to undergo major operations in the hospital and was out of business for about four months.

(ii) That the Tribunal has granted only Rs. 6,000/- as loss of income for two months even though the evidence adduced by the appellant/original claimant which has remained un-rebutted, clearly shows that the appellant/original claimant was out of his business for about more than four months.

(iii) That the Tribunal has erred in not considering the disability sustained by the Page No.# 4/7

appellant/original claimant even though the medical documents relied upon the appellant/original claimant clearly speaks of permanent disability to the extent of 40%.

(iv) The Tribunal also erred in considering the income of the appellant/original claimant at Rs. 3,000/- per month even though it has come from the evidence that he was a businessman. It was also contended that the appellant was 31 years old on the date of the accident and the Tribunal has neither awarded any amount towards loss of amenity nor any amount towards future medical expenses.

On the aforesaid grounds Mr. S. Dutta, learned senior counsel for the appellant contended that the impugned judgment and award deserves to the modified and the appellant is entitled to compensation of at least Rs. 4,00,000/- as claimed by the appellant/original claimant in the claim petition filed before the Tribunal.

5. Per contra, Mr. R. K. Bhatra, learned counsel for the respondent no. 2/insurance company has opposed the appeal. Mr. Bhatra contended that the appellant has not proved the income and, therefore, the Tribunal has committed no error in considering the compensation at Rs. 40,000/- as the accident occurred in the year 2005. Mr. Bhatra further contended that the Tribunal has not committed any error in granting Rs. 5,000/- as pains and sufferings as well as Rs. 6,000/- as the loss of income for two months. It is contended by Mr. Bhatra that the appellant miserably filed to prove any permanent disability of the body as a whole and has not examined any doctor to prove the same. Mr. Bhatra further contended that the appeal is bereft of any merits and deserves to be dismissed while confirming the impugned judgment and award passed by the Tribunal as the compensation granted by the Tribunal is just and adequate and no interference is called for by this court in exercise of appellate jurisdiction under section 173 of the Act.

6. No other or further submissions or contentions have been raised by the learned counsel appearing for the parties.

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7. I have heard the learned counsel for the respective parties and also have perused the original records of the proceeding before the Tribunal.

8. Upon hearing the learned counsel for the parties and on perusal of the original records and upon re-appreciating the evidence on record, it appears that in examination-in-chief the appellant has also clearly averred that his income was Rs. 6,000-6,5000/- per month at the time of the accident. However, he has not produced any documentary evidence in this regard. The medical papers which are relied upon by the appellant clearly indicate that the appellant was admitted to the hospital firstly on 14.04.2005 and was discharged on 25.04.2005 and thereafter again he was admitted on 11.05.2002 and was discharged on 03.08.2005. The other medical papers clearly indicate that the appellant had to undergo extensive treatment at the Silchar Medical College and Hospital at Silchar. Thus, the appellant has been able to prove that the appellant sustained serious injuries because of the accident and was out of business for almost four months. In addition to that, the medical papers also establish that the appellant had to undergo two major operations. Upon re-appreciating such evidence on record, it clearly transpires that the Tribunal has considered the same. Upon re-appreciating the evidence as a whole, it clearly transpires that the appellant has not prove his income and the appellant has also not examined any of the doctors who treated him at the Silchar Medical College and Hospital to prove his permanent disability.

9. Upon considering the aforesaid, the following questions arise for determination by this court in this appeal:

(i) Whether the Tribunal has correctly assessed the income of the appellant at Rs. 3,000/- per month even though it has come from the record that the appellant is a businessman, or not ?

(ii) Whether the Tribunal has committed any error in granting the compensation at Rs. 5,000/- under the head of pains, shock and sufferings.

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(iii) Whether the Tribunal is correct in granting compensation under the head of "Loss of income" only for two months even though the evidence indicates that the appellants was out of his business for four months, or not ?

(iv) Whether the appellant/original claimant would be entitled to any further compensation under any other heads, or not ?

10. Upon considering the submissions made and the evidence on record and on its re-appreciation, it is a matter of fact that the appellant was a businessman. It is no doubt true that in absence of any evidence whatsoever to prove the income except the mere version in the claim petition and oral assertion in the examination-in-chief the appellant produced no evidence on record to prove his income. However, the fact remains that the appellant was doing his business and, therefore, he would naturally earn more that Rs. 100/- per day, i.e. Rs. 3,000/- per month. In absence of evidence, the Tribunal has committed no error in determining the income notionally. However, upon re-appreciating the evidence on record and considering the fact that the appellant was a businessman, the income of the injured can easily be determined at Rs. 5,000/- per months even though the income is fixed notionally, more particularly, as the appellant/original claimant was a businessman doing his own business.

11. As far as disability of the appellant is concerned, the appellant has not proved the same and it has come on record that his business has continued even after the accident. Upon re-appreciation of the medical evidence on record, the appellant has clearly proved that he sustained multiple serious injuries and had suffered fractures at two vital parts of the body, which, if not cured properly would hamper his working as a businessman. It has also come on record that the appellant/original claimant was admitted as an injured patient twice in the Silchar Medical College and Hospital and was operated upon by the doctors. Upon re-appreciating such evidence on record, the Tribunal has committed error in awarding a meager amount of Rs. 5,000/- towards pains, shock and sufferings, which deserves to be enhanced. The record indicates that Page No.# 7/7

the age of the claimant was just 31 years on the date of the accident and, hence he would be entitled to some amount under the head "Loss of amenities of life". It has also come on record that the appellant/original claimant had to undergo extensive treatment for almost four months and, therefore, he would be entitled to compensation for loss of income for four months instead of two months as granted by the Tribunal.

Hence, the questions raised in this appeal are answered accordingly.

12. In the light of the aforesaid, I am of the considered opinion that the appellant would be entitled to compensation as under:

      (i) Pain and sufferings                      -     Rs. 1,50,000.00

      (ii) Loss of amenities                   -         Rs. 1,50,000.00

       (iii) Loss of income for 4 months       -         Rs.   20,000.00
                                      Total    -        Rs. 3,20,000.00

As the Tribunal has awarded Rs. 40,000/-, the appellant would be entitled to an additional compensation of Rs. 2,80,000/- with interest @ 7% per annum. The appeal is, thus, partly allowed. The impugned judgment and award stands modified to the aforesaid extent. The insurance company shall deposit the additional amount of Rs. 2,80,000/- with 7% interest, per annum, with the Tribunal on such additional amount awarded by this court within a period of eight weeks from the date of receipt of a certified copy of this judgment and order. Parties to bear their own costs.

Registry is directed to remit the LCR back to the Tribunal forthwith.

CHIEF JUSTICE

Comparing Assistant