Appellant vs Bikram Sing Phangcho
2022 Latest Caselaw 2294 Gua

                                                                                       Page No.# 1/12


GAHC010187212014




                        THE GAUHATI HIGH COURT
       (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
                            Case No: MACApp. 266/2014

     Kishore Talukdar
     S/O Sri Debabrata Talukdar, Vill. and P.O. Loregthepi,
     P.S. Howraghat, Dist. Karbi Anglong.

                                              .............................Appellant



                                     VERSUS
     1. Bikram Sing Phangcho
     S/O Shri Khagendra ,
     Vill. Agriculture Colony, Taradong,
     P.O. & P.S. Diphu, Dist. Karbi Anglong
     (Owner Cum Driver of the vehicle bearing no. AS-09-B-1079)
     2. Bajaj Alliance General Insurance Co. Ltd.
     2b, 2nd Floor
     NH Centre Point,
     Opposite Bora Service Station
     G.S. Road
     Ulubari
     Guwahati-7
     Dist. Kamrup
     (Insurer of the vehicle bearing no. AS-09-B-1079)

                                            ................................Respondents

Page No.# 2/12

:: BEFORE ::

            HON'BLE MRS. JUSTICE MALASRI NANDI

            For the Appellant               : Mr. N.C. Das

            For the Respondents             : Mr. H. Buragohain (Sr. Advocate, R-2)
                                              Mr. A.I. Kathar (respondent no.1)

            Date of Hearing                 : 31.05.2022
            Date of delivery of
            Judgment and Order              : 30.06.2022




                  JUDGMENT & ORDER (CAV)

1. Heard Mr. N.C. Das, learned counsel appearing for the appellant and Mr. A.I.

Kathar, learned counsel appearing for the respondent no. 1. Also heard Mr. H.

Buragohain, learned counsel appearing for the respondent no. 2.

2. The claimant as appellant has filed the instant appeal challenging the order of

dismissal passed by the member, MACT, Shankardevnagar, Hojai, dated 17/05/2014

in MAC case no 468(N) 2012.

3. The brief facts of the case is that on 12/01/2012 at about 4 PM while the

claimant was proceeding towards Tarabasa under Howraghat police station from

Loringthepi by riding his motorcycle bearing no AS09/7725 through National Highway,

at that time one vehicle (Scorpio Hawk) bearing no AS09B/1079 coming in a rash and

negligent manner knocked down the claimant from his behind as a result he fell from

the motorcycle and sustained grievous injuries on his person. Due to the alleged Page No.# 3/12

accident, his right leg had been fractured. Immediately after the accident he was

shifted to B.P. Civil Hospital, Nagaon and then he was referred to GNRC, Guwahati.

He was admitted to GNRC, Guwahati on the date of incident wherein he was

treated as an indoor patient. Subsequently, the claimant also had undergone

treatment at Guwahati Medical College and Hospital and medical centre at Patna.

As per the claim petition the claimant had incurred expenditure of Rs. 10, 000, 00/-

(Rs. Ten Lakhs) for his treatment. At the relevant time of accident, the alleged

offending vehicle was duly insured with Bajaj Allianz General Insurance Company.

4. It is pertinent to say here that on the first occasion none of the respondent

including the insurance company did not turn up before the Tribunal as such the case

was proceeded ex-parte against them. After hearing the claimant side, ex-parte

judgment was delivered on 19/08/2013 awarding compensation of Rs. 5, 53,949/-

(Rupees Five Lakhs Fifty Three Thousand Nine Hundred Forty Nine only) in favour of the

claimant/appellant. Subsequently insurance company filed a petition before the

Tribunal under order 9 Rule 13 of CPC praying to vacate the ex-parte order and allow

them to contest the case. Accordingly, prayer of the insurance company was

allowed by vacating the ex-parte order. The insurance company had submitted their

written statement before the Tribunal and thereafter, P.W-1 was cross examined. After

hearing both sides, the Tribunal had dismissed the appeals on the ground that there

was delay of more than one month in lodging the FIR and the claimant had failed to

produce any document for his treatment at B.P Hospital Nagaon wherein he was

initially treated after the accident. The Tribunal also took note of the fact that the

claimant did not produce any witness who had lifted him from the place of accident Page No.# 4/12

to the hospital and also failed to produce any of the witnesses who had seen the

accident. Thus, the claim of the claimant was dismissed. Hence, this appeal.

5. Learned counsel for the appellant has argued that the Tribunal erred in

dismissing the claim petition on the ground of genuineness of the accident which

occurred on 12/01/2012. It is also the submission of the learned counsel for the

appellant that the Trial court has committed grave error in not considering the

accident information report and discharge report of the hospitals which were

exhibited during trial.

6. Learned counsel for the claimant has also contended that the tribunal

appears to have been hyper technical in looking for a document of B.P. Civil Hospital,

Nagaon where the claimant was initially treated. Noticing the serious condition of the

claimant he was immediately referred to higher authority for better treatment and at

that critical moment saving the life of the claimant was much more important for his

family members than to procure any document from the said B.P Civil Hospital,

Nagaon.

7. Learned counsel for the claimant also submitted that the tribunal has

completely lost sight of the object of the Motor Vehicles Act which is a beneficial

legislation and took a hyper technical approach in deciding the case. Hence, the

Judgment and Order passed by the Member, MACT, Hojai needs to be interfered.

Alternatively, the learned counsel for the appellant also prayed to remand the case

to the Trial Court so as to enable the appellant/claimant to produce the necessary

documents for his treatment at B.P Civil hospital, Nagaon.

Page No.# 5/12

8. In reply, learned counsel for the respondent/insurance company has

submitted that he has no objection if the case is remanded back to the trial court for

necessary adjudication.

9. I have considered the submissions for the learned counsel of the parties and

also perused the MAC case no 468 (N) 2012 and the documents available thereon.

10. The injured was examined in the case as PW1. He deposed in his evidence that

on 12/01/2012 while he was travelling from Lorengthepi towards Tarabasa in his motor

cycle AS09/7725, he met with an accident when a Scorpio vehicle bearing no

AS09B/1079 coming in a rash and negligent manner knocked down his vehicle from

backside as a result he fell down and sustained grievous injuries on his person. He took

treatment in different hospitals at Guwahati and Patna.

11. According to the claimant, immediately after the accident he was taken to

B.P. Civil Hospital, Nagaon and subsequently, he was shifted to GNRC, Guwahati,

wherein he was treated as an indoor patient and thereafter due to paucity of funds

he was compelled to shift from GNRC to GMCH. It is alleged that the claimant has

failed to produce any document for his initial treatment at B.P. Civil Hospital, Nagaon

but there is no cross examination on the point nor even a suggestion was given to the

PW-1 during cross examination that he was not treated at B.P. Civil Hospital, Nagaon.

Though the claimant has failed to produce any document regarding his treatment at

B.P. Civil Hospital, Nagaon but it appears from the evidence of PW1 that though he

was taken to B.P. Civil Hospital, Nagaon but as his condition was critical, he was

immediately shifted to GNRC, Guwahati. One Xerox copy of discharge certificate is Page No.# 6/12

available in the record which shows that the claimant/appellant was admitted to

GNRC hospital on 12/01/2012 i.e. on the date of accident. From the said document

vide exhibit-30, it reveals that the claimant was brought to GNRC on 12/01/2012 at

9:30 PM with alleged history of head injury following RTA on the same day at 3:30 PM

at Tarabasa, Karbi Anglong while riding a two wheeler got hit by a Bolero and was

injured. He was initially treated at Civil hospital, Nagoan and then was brought to

GNRC.

12. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a

trial for petition preferred u/s 166 of the Act. U/s 168 of the Act, a Claims Tribunal holds

an enquiry to determine compensation which must appears to it to be just. Strict rules

of evidence are not applicable in an enquiry conducted by the Claims Tribunal as

was held in State of Mysore vs. S.S. Makapur reported in (1993) 2 SCR 943 by the

Hon'ble Apex court.

13. In the case of Bimla Devi and others vs. Himachal Road Transport Corporation

and others reported in (2009) 13 SC 530, Hon'ble Supreme Court held that claims

tribunals should not insist on strict proof of an accident caused by a particular vehicle

in a particular manner and that taking holistic view of the manner, evidence should

be examined on the touch stone of preponderance of probability and not beyond

reasonable doubt.

14. The Judgment in Bimla Devi (Supra) was relied on by the Hon'ble Supreme

court in its latest Judgments in Parmeswari vs. Amirchand reported in (2011) 11 SCC

635 and Kusum Lata vs. Satbir (2011) 3 SCC 646.

Page No.# 7/12

15. In the case of N.K. V. Brothers (P) Ltd vs. M. Karumal Ammal, AIR 1980 SC 1354

Hon'ble Apex Court observed:

"Road accidents are one of the top killers in our country, especially when truck and

bus driver operate nocturnally. This proverbial recklessness often persuades the courts

as has been observed by us earlier in other cases to draw an initial presumption in

several cases based on the Doctrine of Res Ipsa Loquitor. Accident tribunals must

take special care to see that innocent victims do not suffer and drivers and owners

do not escape liability merely because of some doubt here and some obscurity

there. Save in plain cases, culpability must be inferred from the circumstances where

it is fairly reasonable."

16. Regarding delay of lodging FIR, according to the leaned counsel for the

insurance company, the accident took place on 12/01/2012 but the FIR was lodged

on 16/02/2012 i.e. after more than one month of the accident. Therefore, it is doubtful

whether the injured has sustained such injury in the accident in question.

17. It is no doubt true that there was delay in lodging the FIR but in the FIR it is

mentioned that as the family members of the injured was busy for his treatment, there

was delay in lodging the FIR. Moreover, there was no cross examination on the point

of delay in lodging the FIR. The respondent insurance company has also not proved

that there was deliberate and intentional delay in lodging the FIR. Reference may be

made to the case of Sumitra Kaur and another vs. New India Assurance Company Ltd

reported in (2012) 4 TAC 799 (Allahabad) in which there was no FIR at all and even

then it was held that even if no FIR is lodged and even if no post mortem report is Page No.# 8/12

available, Tribunal may award compensation if it is satisfied that accident occurred

and victim had suffered injuries.

18. Similarly, in New India Assurance Company Ltd vs. Smt. Gurubari and another

reported in (2013) 1 TAC 227 (Jharkhand) there was inordinate delay of about 11

years in filling claim petition. Maintainability of the claim petition was challenged. It

was held that Motor Vehicles Act being a beneficial/benevolent legislation aimed at

providing relief to the victims and their families, technicalities of limitation should not

come in the way of claimants.

19. In view of the aforesaid discussions and unchallenged testimony of PW1 in the

instant case, it is held that accident took place due to rash and negligent driving of

the driver of the offending Bolero vehicle. Admittedly, the said Bolero vehicle bearing

no AS09B/1079 was duly insured with Bajaj Allianz General Insurance Company Ltd at

the relevant time of accident. Hence, the insurance company is liable to pay

compensation to the claimant.

20. Regarding quantum of compensation, section 166 of the Act mandates

payment of just compensation. In the case of Arvind Kumar Mishra vs. New India

Assurance Company Ltd. Reported in (2010) 10 SCC 254, Hon'ble Supreme Court

observed that while awarding compensation in personal injury cases, an attempt

should be made to put the injured in the same position as far as money can do,

which is reproduced as follows:-

"9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that Page No.# 9/12

the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered."

21. In the case of Kavita vs. Deepak and others (Civil Appeal No 5945/2012

decided on 22/08/2012), Hon'ble Supreme Court held that an attempt should always

be made to award adequate compensation not only for the physical disability but

also for the loss of earning and inability to lead a normal life and enjoy usual

amenities of life.

22. Now, turning to evidence in this case, according to the appellant/claimant,

due to the alleged accident he sustained head injuries, spine fracture and fracture of

right leg both bones and soft tissue injury on right leg. On the date of accident, he

had admitted to GNRC hospital i.e. on 12/01/2012 and discharged on 10/02/2012

vide exhibit 30. Exhibit 31 i.e. discharge certificate of Guwahati Medical College

Hospital shows that the claimant/applicant admitted to GMCH on 12/02/2012 and

discharged on 13/03/2012. On examination, doctor found head injury and urethral

injury and fracture of both bone right leg. From exhibit-31, it also appears that skin

grafting done over raw area of right leg. From exhibit 30 and 31, it reveals that the

appellant sustained grievous injuries on his person due to the alleged accident and

there is no dispute that the injured remained hospitalized at GNRC, Guwahati and

GMCH, Guwahati for more than two months and thereafter, he was also treated as

an outdoor patient on subsequent period. Under such backdrop, it can reasonably Page No.# 10/12

be inferred that due to the injuries sustained by the appellant, he was not in a position

to do any work for about 6(six) months.

23. The claimant/appellant has also produced one disability certificate vide

exhibit-32 from which it reveals that the appellant/claimant was examined by the

District Medical Board, Nagaon, Assam on 07/10/2013 and after examination it was

assessed that the clamant is physically handicapped due to fracture of right leg both

bone, fracture spine, urethral injury having 75% permanent disability.

24. To prove the disability certificate i.e. exhibit-32, no witness was examined. One

initial endorsed in exhibit 32 above the seal Chairman, District Medical Board,

Nagaon, Assam from which it cannot be ascertained who was the doctor put his

signature (initial) on exhibit 32. It is also not clear from Ext.32 who were the other

members of District Medical Board, Nagaon (Assam) at the relevant time of

examination of the injured. Hence, exhibit-32 is not considered in this case. However,

it is true that the claimant/appellant has sustained grievous injuries on his person due

to the alleged accident, as such, he is entitled to get the amount of expenditure

incurred by him for his treatment.

25. Regarding income of the injured, as per claim petition, the appellant was a

businessman earning Rs. 15,000/- per month from his pharmaceutical business and Rs.

15,000/- from government contracts and incidental works. In support of the fact, the

claimant has produced some documents i.e. exhibit 26 which is a license for running

a pharmacy M/s Pranab Medical Hall at Loringthepi, Karbi Anglong and tax

clearance certificates vide exhibit 27,28 and 29 of his business establishment. The Page No.# 11/12

insurance company has made no objection regarding income of the claimant

through pharmaceutical business. Hence, Rs. 15,000/- be considered as monthly

income of the injured. Due to the alleged injuries the claimant had to confine in bed

for six months, as such, his loss of income be calculated as Rs. 15,000/- X 6 = Rs.

90,000/-. As per Judgment dated 19/08/2013 passed by the Learned Trial court that

on careful scrutiny of the cash memos, vouchers, prescriptions etc it is culled out that

the claimant incurred medical expenditure amounting to Rs. 4,88,949/- . The said

amount has also not been disputed by the insurance company at any stage. Hence,

the claimant/appellant is entitled to get the aforesaid amount as his medical

expenditure.

26. As the claimant/appellant had sustained grievous injuries at the age of 45/46

years, as such, he is entitled to Rs. 50,000/- for pain and suffering and Rs. 50,000/- for

loss of amenities. Total amount of compensation comes to Rs. 6, 78,949 (Rupees Six

Lakhs Seventy Eight Thousand Nine Hundred and Forty Nine only).

27. In the result, appeal is allowed. The Judgment in MAC Case No. 468(N)/12

dated 17/05/2014 passed by the learned Member, MACT, Shankardevnagar, Hojai is

set aside. The insurance company i.e. Bajaj Allianz General Insurance Company is

directed to deposit the amount of Rs. 6, 78,949 (Rupees Six Lakhs Seventy Eight

Thousand Nine Hundred and Forty Nine only) in the savings account of the

claimant/apellant through NEFT. The claimant/appellant is directed to produce his

bank details of any nationalised bank to the insurance company for necessary

payment. The amount of award shall carry an interest @6% per annum.

Page No.# 12/12

25. Return the LCR.

JUDGE

Comparing Assistant