Gauhati High Court
MACApp./40/2015 on 19 January, 2022
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GAHC010198042015
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 40/2015
1. The Oriental Insurance Company Ltd.
having its Registered Office at Assaf Ali Road, New Delhi and Regional Office at G.S.
Road, Ulubari, Guwahati, represented by its Regional Manager, Regional Office,
Guwahati.
...... Appellant
-Versus-
1. Md. Wahidul Islam @ Ohidul Islam
S/o Late Sattar Ali @Abdus Sattar
R/o Village Milan Nagar, Santipur
P.O. Baladmari, P.S.Goalpara,
Dist. Goalpara, Assam
(Claimant)
2. Md. Monser Ali Mondal
S/o Okumuddin Mondal
R/o Vill. Barpahar Priya Nagar
P.O., P.S. & Dist. Goalpara, Assam.
(Owner of Truck bearing Registration No. AS-18A-2814)
3. Raham Ali,
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S/o Buddiuzzamal,
R/o Vill. Borpahar, P.O. Baladmari
District. Goalpara, Assam.
(Driver of Truck bearing Registration No. AS-18A-2814)
......Respondents
Before
HON'BLE MRS. JUSTICE MALASRI NANDI
Advocate for the Appellant: Mr. A. Dutta
Advocate for the Respondents: Mr. I. Hussain
Date of Hearing : 09.12.2021.
Date of Judgment : 19.01.2022
JUDGMENT AND ORDER
1. The Insurance Company has preferred this appeal challenging the award dated
04.09.2013 in MAC Case No. 417/2009 passed by learned Member, MACT, Goalpara. The
respondent No. 1 in this appeal is the claimant.
2. The brief facts of the case is that on 09.03.2009 at about 7:00 A.M. while the
claimant/respondent No. 1 Wahidul Islam was going towards Goalpara Civil Hospital on foot
from Bapuji Nagar, he met with an accident due to rash and negligent driving by the driver of
the vehicle bearing Registration No. AS-18A/2814(Truck) in front of the office of DTO,
Goalpara. Due to the alleged accident, he sustained grievous injuries on his person. He was
immediately taken to Goalpara Civil Hospital. Subsequently, he took treatment at Life Care
Hospital and Research Co-operative Society, Goalpara. As a result of the accident, the
claimant suffered Communated fracture of right Tibia and both bones of left legs and multiple
injuries all over his bodies. The vehicle in question was insured with Oriental Insurance
Company Ltd. at the relevant time of accident. Subsequently, the claimant attended the
District Standing Medical Board and extent of damage sustained by him as a result of the
accident was assessed by the Board and it was assessed that he suffered about 60 %
permanent disability.
3. After completion of trial, learned Tribunal has agreed with the assessment report of the
Medical Board on disability of the claimant as 60% and also income of the injured as Rs.
9,000 at the time of accident as vegetable vendor and calculated the award of compensation
on different heads amounting to Rs. 10,72,757/-(Rupees Ten Lakhs Seventy-Two Thousand
and Seven Hundred Fifty-Seven) only in favour of the claimant/respondent No. 1.
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4. Being highly aggrieved and dissatisfied with the judgment and order, the Insurance
Company has preferred this appeal with a prayer to reduce the amount of compensation.
5. Learned counsel for the appellant argued that there is no loss of future income as a
result of injuries sustained by the claimant in the accident. He was a vegetable vendor. For
proving the loss of future earning capacity, the claimant should have produced the document
to show that there was reduction in his income after the occurrence of accident. If really the
injuries that he suffered affected his earning capacity and thereby there was reduction in his
income in the years subsequent to accident, he should have produced medical documents of
subsequent years. The burden was on the claimant to prove loss of earning capacity. It is also
submitted that the Tribunal should have drawn adverse inference. Learned counsel have also
pointed out that nature of injuries sustained by the claimant did not affect his earning
capacity. The Tribunal should not have granted any amount towards loss of future earning
capacity.
6. Learned counsel for the appellant also contended that in absence of prove of income,
the learned Tribunal committed a series error in law in accepting Rs. 9000/- as income of the
respondent No. 1/claimant while assessing future loss of income in the instant case. The
learned Tribunal ought to have followed the 2 nd schedule which provides for notional income
in such a situation such irregularities have vitiated the impugned judgment and award and
accordingly, the same is liable to be interfered. In support of his submission, learned counsel
has placed reliance on the following case laws:-
(2014) 2 SCC 735 (Syed Sadiq and Others v. Divisional Manager, United India Insurance
Company Ltd.)
(2011) 1 SCC 343 (Raj Kumar v. Ajay Kumar & Anr.)
7. Learned counsel for the appellant also submitted that the appeal should be allowed and
quantum of compensation be reduced by awarding certain amounts towards loss of
amenities, medical expenses, pain and sufferings and attendant's charges.
8. On the contrary, learned counsel for the respondent/claimant argued that the injuries
sustained by the claimant did effect his working capacity. There was loss of income.
According to P.W. 2 disability factor was 60%. The judgment of the Tribunal is well reasoned.
There was no ground to interfere with and appeal should be dismissed.
9. In the case of Raj Kumar v. Ajay Kumar & Anr. (supra) following principles were laid
down by the Hon'ble S.C. for determining compensation payable to road traffic accident
victims:-
(a) The compensation payable to the claimant who is a victim of road traffic accident should,
to the extent possible, fully and adequately restore the claimant to the position prior to the
accident. The object of awarding damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair, reasonable and equitable manner.
(b) Compensation payable in injury cases is payable under two heads. They are pecuniary
damages (special damages) and non-pecuniary damages. Pecuniary damages have three
such heads which are (i) expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food and miscellaneous expenditure. (ii)(a) loss of earning which
the injured would have made had he not being injured, comprising of loss of earning during
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the period of treatment and (b) loss of future earning on account of permanent disability (iii)
future medical expenses. Non pecuniary damages (General damages) are (iv) damages for
pain, suffering and trauma as a consequence of injuries, (v)loss of amenities or loss of
prospects of marriage and (vi)loss of expectation of life.
(C) In routine personal injury cases compensation is awarded only under heads (i) (ii) (a) and
(iv). It is only in serious cases of injuries where there is specific medical evidence
corroborating the evidence of the claimant that compensation is granted under any of the
heads ii(b), iii and vi relating to loss of future earnings on account of permanent disability,
future medical expenses, loss of amenities (or loss of prospectus of marriage) and loss of
expectation of life.
10. In the instant case, the respondent No. 1/claimant, after the accident, was first shifted
to Goalpara Civil Hospital for his treatment and subsequently he was referred to Gauhati
Medical College and Hospital for better treatment but he was treated at Goalpara Life Hospital
and Research Co-operative Society, Goalpara as a indoor patient. In support of his treatment
the claimant has Exhibited one document vide Exhibit 3 which shows that the respondent was
treated at Goalpara Civil Hospital. He was admitted to Goalpara Civil Hospital on the date of
accident i.e. on 09.03.2009 and discharged on the next date on 10.03.2009. On examination
doctor found fracture of right Tibia and both bones of left legs and he was referred to Gauhati
Medical College and Hospital for needful. Exhibit 5 is the discharge certificate of the
claimant/respondent No. 1 which shows that the claimant/respondent No. 1 was admitted to
Life Care Hospital and Research Co-operative Society, Goalpara on 11.03.2009 and discharged
on 12.03.2009. On examination doctor found Comminuted fracture both bones left legs and
he was treated, operation was done on 11.03.2009
11. Doctor Sahidur Rahman was examined as D.W.2 to prove the report of Medical Board
who examined the claimant to assess his disability. He deposed in his evidence that he was
one of the members of Goalpara Standing Medical Board and on 07.01.2010, he along with
other members of the Board, examined the claimant Wahidul Islam and on examination they
had assessed 60% disability on his person.
12. The report of Medical Board vide Exhibit 27 is available in the record from which it
reveals that meeting of District Medical Board, Goalpara held on 07.01.2010 at the office of
Joint Director Health Services, Goalpara wherein they examined Wahidul Islam, 20 years son
of Late Sattar Ali resident of Milannagar, Shantipur, Goalpara Assam and found the following-
"Mr. Wahidul Islam sustained injuries like comminuted fracture shaft of left Tibia & Fibula.
Comminuted fracture shaft of right Tibia following RTA on 09.03.2009. At present his both
legs are deformed, weak with restricted movement of knee and ankle joint. The Board comes
to the conclusion that the person becomes permanently disabled amounting to 60 %."
13. The learned Tribunal Goalpara has calculated the amount of compensation on the basis
of 60 % disability as assessed by the Standing Medical Board of Goalpara. It is difficult to
ascertain in exact terms as to how much the disability in right and left lower limbs has
affected the whole body of the claimant. According to the injured/claimant, he was the
vegetable vendor prior to the accident and he was earning Rs. 9,000/- per month. However,
no proof regarding the occupation and income of the injured has been produced though it
was stated that he was vegetable vendor.
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14. As per the judgment cited by the learned counsel for the appellant in Syed Sadiq and
Others (supra) the compensation of the vegetable vendor was determined as Rs. 6,500/- per
month. It was held in the said case that the said employee labour in unorganized sector i.e.
the claimant vegetable vendor sustaining disability cannot be expected to produce documents
of his monthly income. Considering present state of economy in agricultural products
reasonably capable of earning of Rs. 6,500/- per month and compensation was awarded
accordingly. On the basis of the judgment of Hon'ble Supreme Court regarding income of the
vegetable vendor, in the case in hand also, the income of the injured be considered as Rs.
6,500/- per month. .
15. As per the disability certificate the age of the injured was 20 years at the relevant time
of accident. Though the claimant has stated that he could not work and attend his duties due
to the injury resulting from the accident, however no such documentary evidence is available
in record. But as he suffered grievous injuries i.e. fracture of both bones of his legs, he must
have confined to bed for some time. Therefore, he is entitled to the loss of income.
16. Keeping in view the nature of injuries suffered by the claimant and the fact that he was
under constant treatment, he would definitely needed an attendant to look after him and the
claimant is therefore entitled to attendant charges. The claimant has not filed any record to
show that he had received help of special attendant. However, some family members must
have been attending with him.
17. In the case of Delhi Transport Corporation and Anr. v. Lalita reported in AIR 1981 Delhi
558 it was held that a victim cannot be deprived of compensation towards gratuitous services
referred by some of the family members for the benefit of the tortfeasor. Looking to the
nature of injuries of the injured, it is deemed fit that a lumpsum of Rs. 30,000/- be awarded
as compensation towards attendant charges. The claimant has not shown anything for
spending money on special diet and conveyance, but he must have gone for follow up check-
ups and must have been given special diet for speedy recovery. Thus Rs. 10,000/-is awarded
for special diets and another Rs. 10,000/- towards conveyance charges.
18. Considering the age and occupation of the claimant, I am of the opinion that 40 % of
the disability can be considered in relation to whole body for the charges of future loss of
income. As per disability certificate the age of the injured was 20 years. So the multiplier
would be 18.
Loss of income due to disability comes to 6,500X12=78,000/- X40% =31,200/- X 18=5,
61,600/-(Rupees Five Lakhs Sixty-one Thousand and Six Hundred) only.
Attendant charges =30,000/-
Special diet=10,000/-
Conveyance charges=10,000/-
19. As per the judgment of Tribunal the amount of 10,957/- given on the basis of medical
bills and vouchers and on the head pain and sufferings Rs. 10,000/- and future treatment
Rs.10, 000/- and cost of litigation Rs.5, 000/- are upheld. Hence, total amount comes to Rs.
6, 47,557/-(Rupees Six Lakhs Forty-Seven Thousand and Five Hundred Fifty-Seven) only.
20. In the result appeal is partly allowed with aforesaid modification awarding of Rs. 6,
47,557/-(Rupees Six Lakhs Forty-Seven Thousand and Five Hundred Fifty-Seven) only as
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compensation to the claimant. The compensation so awarded will carry an interest @ 6% per
annum from the date of filing of the case till full and final realization.
21. The Oriental Insurance Company is directed to pay the aforesaid amount to the Savings
Account of the claimant/respondent No. 1 through NEFT within two months from the date of
receipt of this order. The claimant/ respondent No. 1 is directed to furnish her bank details of
any nationalized bank to the Insurance Company for necessary payment.
21. Any amount of compensation if paid earlier be adjusted accordingly.
22. Statutory amount in deposit be returned accordingly.
23. LCR be returned.
JUDGE
Comparing Assistant
