Gauhati High Court
MACApp./46/2018 on 5 December, 2022
Page No.# 1/8
GAHC010019992018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 46 of 2018
Sri Mahendra Nath @ Mohen Ch. Nath,
Son of late Birendra Nath,
Village - Rampur (Agia),
P.O.- Bardamal,
District - Goalpara, Assam
..................Appellant
-Versus-
1. The Divisional Manager,
New India Assurance Co. Ltd.,
Bongaigaon Division,
P.O. & District - Bongaigaon,
Assam.
2. Sri Bhupendra Kr. Singha,
Son of Late Kanki Kanta Singha,
Village - Churabandha,
P.S.-Chapar,
District- Dhubri, Assam.
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3. Rafiqul Islam,
Son of Md. A Gaffur,
Village - Chokapara,
P.S.- Bilasipara,
District - Dhubri, Assam.
....................Respondents.
Advocates for the appellant : Mr H Das.
Advocate for the respondent : Mrs M Choudhury
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Judgment : 05.12.2022
JUDGEMENT AND ORDER (CAV)
Heard Mr H Das, learned counsel appearing for the appellant and Mrs M Choudhury,
learned counsel appearing on behalf of the respondents.
2. The injured claimant as appellant has filed this appeal under Section 173 of the Motor
Vehicles Act, 1988, challenging the judgment and order dated 22.02.2013, in MAC Case No.
118 of 2005, passed by the learned Member, MACT, Goalpara, awarding compensation of an
amount of Rs. 1,04,250/- (Rupees One Lakh Four Thousand Two Hundred Fifty) Only, in
favour of the claimant.
3. The brief facts of the case is that on 13.11.2004, at about 9:00 am, while the claimant
was proceeding towards his house from Makri vegetable Market in his bicycle through PWD
Road and when he approached NH-37, one vehicle bearing No. AS-01-E-5639 (Bus) coming in
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a rash and negligent manner knocked down the claimant from his back side, as a result of
which, he sustained grievous injuries on his person including head injury.
4. On receipt of an information regarding accident one GD Entry was recorded vide
Kharmuja OP GDE No. 290 dated 13.11.2004 and subsequently a case was registered vide
Goalpara PS Case No. 278/2004, under Sections 279/338/427 IPC. At the relevant time of
accident, the alleged vehicle was duly insured with New India Assurance Company Limited.
5. The driver of the vehicle as opposite party No. 3, had submitted his written statement
before the Tribunal and it is alleged that the accident took place due to negligence of the
injured, who was riding his cycle in a negligent manner and dashed against the involved
vehicle. The Insurance Company by filing its written statement denied that there was any
permanent disability caused to the injured/ claimant. The factum of accident has not been
challenged in this case.
6. It is submitted by the learned counsel for the appellant that the impugned award of Rs.
1,04,250/- Rupees One Lakh Four Thousand Two Hundred Fifty) Only, awarded by the
learned Tribunal is very low and inadequate, that too, calculation of the same was made from
the date of evidence. The learned Member MACT has erred in law in determining the
quantum of compensation on correct principle and the same is based on speculation only.
7. It is also the submission of the learned counsel for the appellant that prior to the
accident, the appellant was earning Rs. 7,000/- per month by selling vegetables in the
market, but the learned Member, MACT, Goalpara wrongly considered the income of the
victim as Rs. 15,000/- per annum, as per Second Schedule to Section 163 A of the MV Act.
Hence, the judgment and order dated 22.02.2013, passed by the learned Member, MACT,
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Goalpara in MAC Case No. 118 of 2005, needs to be interfered by this Court.
8. On the other hand, learned counsel for the Insurance Company has submitted that the
award passed by the learned Member, MACT, Goalpara, is not just and proper as there was no
permanent disability caused to the injured claimant and as such, compensation cannot be
calculated on the basis of multiplier method. At best, the injury sustained by the
appellant/claimant was grievous in nature and the compensation would be considered on that
count only.
9. I have considered the arguments of both the learned counsel for the parties. I have also
gone through the judgment of the learned Tribunal and also the documents, which are
available in the record of MAC Case No. 118 of 2005.
10. Before proceeding further, it would be necessary to have a look at the judgment of the
Apex Court on permanent disablement in the case of Rajkumar v. Ajay Kumar, reported in
(2011) 1 SCC 343, wherein, the following principles have been enunciated.:
1. All injuries or permanent disabilities arising from injuries do not result in loss of earning
capacity.
2. The percentage of permanent disability with reference to a whole body of a person
cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the
percentrage of loss of earning capacity is not the same as the percentage of permanent
disability.
3. The doctor who treated the injured claimant or subsequently who examined to assess the
extent of his permanent disability can give evidence only in regard to the extent of
permanent disability. The loss of earning capacity is something, that will have to be assessed
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by the Tribunal with reference to the evidence in entirety.
4. The same permanent disability may result in different percentage of loss of earning
capacity in different persons, depending upon the nature of profession, occupation or job,
age, education and other factors.
11. Only two witnesses were examined before the Tribunal, i.e., the victim/claimant and the
Medical Officer.
12. In this case, the Tribunal has proceeded on the basis that permanent disability of the
injured appellant was 40% and the loss of his future earning capacity was considered on
multiplier method. But the Tribunal overlooked the fact that the disability certificate, vide
Exhibit-1, is silent whether disability referred to 70% with reference to the whole body or in
any particular area. As per disability certificate, vide Exhibit-1, it reveals that the District
Standing Medical Board, Goalpara, which was held on 14.05.2008, at the office chamber of
Joint Director, Health Services, Goalpara, examined Mahendra Chandra Nath, Son of Late
Biren Nath of Village-Rampur, P.O.- Bardomal in district Goalpara and found that Mr Mahendra
Chandra Nath sustained injuries like
1) Head injury.
2) Haemorrhagic contusion right frontal lobe.
3) Fracture right clavicle and
4) Aversion of lower left first and second molar teeth, following RTA on 13.11.2004.
At present, he complained of repeated headache, dismissed memory and tender over right
clavicle.
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The Board assessed 70% of permanent disability to the claimant.
13. From Exhibit-1, it cannot be ascertained, on what basis, the Medical Board, Goalpara
had assessed the disability of the claimant, either on headache or injury over the clavicle. The
injury report given by the GMCH, vide Exhibit-4, discloses suspected head injury and fracture
of clavicle. CT Scan report, vide Exhibit-6 shows haemorrhagic contusion in right frontal lobe
and other parameters are normal.
14. The Medical Board examined the victim on 14.05.2008, when the injured complained of
headache. The accident occurred on 13.11.2004. The CT Scan was done on 19.11.2004. After
4 years, when the Medical Board examined the injured on 14.05.2008, no fresh CT Scan was
done. It transpires that the disability certificate was issued on the basis of oral submission of
the injured, i.e., headache, dismissed memory, as pointed out by the claimant. Hence, the
Exhibit-1 is not considered in this case, but it is true that the right clavicle of the victim was
fractured due to the alleged accident, which appears to be grievous in nature and the victim
is entitled for compensation on receiving the grievous injuries on his person.
15. From Exhibit -4, which is the discharge certificate reveals that the claimant was
admitted to Gauhati Medical College Hospital on 14.11.2004 and discharged on 19.11.2004.
On examination, doctor found suspected head injury and fracture of right clavicle. Initially,
the claimant was treated at Goalpara Civil Hospital, vide Exhibit-2, i.e., on the date of
accident on 13.11.2004 and he was referred to the Gauhati Medical College and Hospital.
16. As the injured claimant was hospitalized for five days due to fracture of his clavicle,
definitely he was not in a position to do his normal work in proper way as he has stated his
profession as vegetable vendor, earning Rs. 7,000/- per month. The Tribunal held that as
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there was no acceptable evidence regarding income of the injured claimant, it was assessed
at Rs. 15,000/- per annum. It would be very difficult to expect from a vegetable vendor or
cultivator to have accounts or other documents regarding income. As the accident occurred in
the year 2004, the Tribunal ought to have assumed the income of the injured/claimant as Rs.
3,000/- per month (@ Rs. 100/- per day), even in absence of any specific documentary
evidence regarding income.
17. As it appears that the right clavicle of the injured was fractured, as a result of which, he
had to confine on bed for 5/6 months, hence, loss of income can be calculated as Rs. 3000/-
x 6 = Rs. 18,000/-. The claimant is entitled for medical expenses, as per cash memo
vouchers submitted by the injured/claimant, amounting to Rs. 3,945.80/-.
18. Further an amount of Rs. 30,000/- is awarded for pain and suffering and another Rs.
30,000/- for loss of amenities of life. An amount of Rs. 20,000/- is awarded for meeting
travelling expenses for taking treatment at different hospitals at Guwahati and Goalpara. Rs.
10,000/- for attendant charges and Rs. 30,000/- towards diet, food and nourishment charges.
19. After computation of compensation, the award would come as follows:-
A. Loss of Income- Rs. 3,000/- x 6 = Rs. 18,000/-
B. Pain and Suffering = Rs. 30,000/-
C. Towards medical treatment = Rs. 3,945.80/-.
D. Loss of amenities of life = Rs. 30,000/-
E. Towards diet, food and nourishment charges
= Rs. 20,000/-
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F. Transportation and Attendant Charges
Rs. 20,000/- + Rs. 10,000/- = Rs. 30,000/-
_________________________________________________
Total - Rs. 1,31,945.80/- (Rupees One Lac Thirty One Thousand Nine Hundred and Forty Five
and Eighty Paise) only.
20. In the result, the appeal is partly allowed. The Insurance Company is directed to
deposit the amount of Rs. 1,31,945.80/- (Rupees One Lac Thirty One Thousand Nine
Hundred and Forty Five and Eighty Paise) only in the savings account of the appellant, Sri
Mahendra Nath @ Mohen Ch. Nath, through NEFT. The amount of compensation shall carry
an interest @ 6% per annum, from the date of filing of the case till full and final realization.
The Insurance Company is directed to discharge the liability of the award within a period of
30 days from the date of receipt of the order. The appellant, Sri Mahendra Nath @ Mohen Ch.
Nath is directed to furnish his bank details of any nationalized bank to the Insurance
Company for necessary payment. The amount of compensation, if any, paid earlier, be
adjusted accordingly.
21. Send down the LCR.
JUDGE
Comparing Assistant
