Gauhati High Court
MACApp./38/2016 on 1 November, 2022
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GAHC010008232016
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 38 of 2016
Smt Pinki Chouhan,
D/o Sri Mohan Chouhan,
R/o Vill. No. 1, Kalaigaon,
P.S.:- Kalaigaon,
District:- Udalguri, BTAD, Assam.
...............Appellant
-Versus-
1. & 2. Achyut Baishya,
Son of Sri Ananta Baishya,
R/o-Vill:-Kacharipara,
P.S.-Mongaldoi,
Dist.:-Darrang, Assam.
........ Owner/Driver of the offending
Vehicle No. AS-13D/6199,
Hero Honda Glamour Motor Cycle.
3. National Insurance Company Limited,
DOX, Hero Moto Corp. Vertical, 101-106,
BMC House, Connaught Place,
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New Delhi - 110001.
....Insurer of the offending
Vehicle No. AS-13D/6199,
Hero Honda Glamour Motor Cycle.
.........Respondents/Opp. Parties.
Advocates for the appellant : Mr R S Chouhan.
Advocate for the respondent : Ms R D Mozumdar.
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Judgment : 01.11.2022.
JUDGEMENT AND ORDER (CAV)
Heard Mr R S Chouhan, learned counsel appearing for the appellant and Ms R D
Mozumdar learned counsel appearing on behalf of the respondent No. 3/Insurance Company.
2. This appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988,
against the Judgment and Order dated 14.10.2015, for enhancement of the awarded amount,
passed by the learned Member, MACT, Udalguri, Assam, in MAC Case No. 03/2015.
3. The brief facts of the case is that on 25.01.2014, at about 03:30 pm, while the claimant
was proceeding to attend her tuition class towards Kalaigaon, a motor cycle bearing
Registration No. AS-13D- 6199, coming in a rash and negligent manner, knocked her down,
as a result of which, she sustained grievous injuries on her person. She was immediately
shifted to Kalaigaon State Dispensary and after receiving preliminary treatment, the injured
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was referred to Mangaldoi Civil Hospital for better treatment. Due to the alleged accident,
three teeth of the claimant were lost. In this connection, FIR was lodged at Kalaigaon Police
Station and a case was registered as Kalaigaon PS Case No. 11/2014, under 279/338/427
IPC. At the relevant time of the accident, the alleged vehicle was insured with National
Insurance Company Limited.
4. Learned counsel for the appellant has argued that the learned MACT, Udalguri, has
failed to consider the seriousness of the injuries of the appellant and awarded a meager
amount of Rs. 85,000/- only. While the injured sustained grievous injuries by loosing her
three teeth and she has also suffered from mental agony and sufferings as well as monetary
loss of Rs. 4 lacs, while undergoing treatment in different hospitals, as such the award is
liable to be enhanced.
5. It is also the submission of the learned counsel for the appellant that on the date of
accident, the appellant was proceeding towards Kalaigaon Higher Secondary School, to attend
Higher Secondary Examination, but due to the alleged accident, she could not appear in the
examination, for which one year has been lost, which can be taken into consideration at the
time of awarding compensation.
6. On the other hand, learned counsel for the Insurance Company has submitted that the
learned Member, MACT, after considering factual matrix of the case had come to the
conclusion that the claimant sustained grievous injuries, due to dislocation of teeth, but there
is no disability on the part of the claimant, as submitted by the learned counsel for the
appellant. Learned counsel for the Insurance Company has also argued that in the instant
case, no doctor has been examined to prove the injuries of the claimant. Apart from that, the
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victim was not examined by the doctor on the date of accident. Exhibit-12 shows that the
victim was examined by doctor. From Exhibits- 12 and 13, it cannot be ascertained that teeth
of the victim had been lost due to the alleged accident, as such, there is no question of
enhancement of the compensation amount awarded by the learned Tribunal and the prayer of
the claimant is accordingly liable to be dismissed.
7. The factum of accident has not been challenged in this case. Exhibit-12 is the discharge
slip of Mangaldoi Civil Hospital, which shows that the victim was admitted to Mangaldoi Civil
Hospital, on 25.01.2014, i.e., on the date of accident and discharged on 29.01.2014. She was
treated as an indoor patient for 5 (five) days in Mangaldoi Civil Hospital, but Exhibit-12 is
silent about the injuries sustained by the victim as well as loss of teeth. However, victim has
produced Exhibit-8 and Exhibit-9, which were issued by one dental surgeon of Mangaldoi,
dated 31.03.2014 and 27.04.2014, by stating that on examination of the victim, he found
fracture of the victim. Though it is not reflected in Exhibit-12, that due to the accident three
numbers of teeth of the victim have been lost, however, as the victim was treated in
Mangaldoi Civil Hospital, as an indoor patient for 5 (five) days, it can be presumed that as she
sustained grievous injuries, for loss of her teeth, she had to take treatment for 5 (five) days
in the hospital as an indoor patient. The victim has not complained of any other injuries
sustained by her due to the alleged accident. However, the doctor who examined the victim
has not stepped into the witness box, to face cross-examination.
8. Regarding loss of academic year, it is revealed that the claimant has produced two
documents, i.e., Exhibit-19, Admit Card of Higher Secondary Examination and Exhibit-20,
Registration Certificate, from which, the date of commencement of examination could not be
ascertained. The claimant has not produced any other document to show that on the date of
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accident, the victim had to appear in any HS Examination. The claimant has also failed to
submit any documents that as she had failed to appear in the examination, she had lost one
year. Under such backdrop, the claimant/victim is not entitled for any compensation on the
head of loss of academic year.
9. The Tribunal is required to pass an award under Section 168 of the Motor Vehicles Act,
which appears to be just and proper in the facts and circumstances of the present case.
Hon'ble Supreme Court in the case of Divisional Controller KSRTC -Vs- Mahadeva
Shetty & Anr.; reported in (2003) Vol. 7 SCC 197, has observed that every method or
more adopted for assessing the compensation, has to be considered in the background of just
compensation, which is the pivotal compensation and the Judgment reads as follows:-
"It has to be kept in view that the Tribunal constituted under the Act as provided in Section
168 is required to make an award determining the amount of compensation which to it
appears to be 'just'. It has to be borne in mind that compensation for loss of limbs or life can
hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles
the claimant to damages. The quantum of damages fixed should be in accordance to the
injury. An injury may bring about many consequences like loss of earning capacity, loss of
mental pleasure and many such consequential losses. A person becomes entitled to damages
for the mental and physical loss, his or her life may have been shortened or that he or she
cannot enjoy life which has been curtailed because of physical handicap. The normal
expectation of life is impaired. But at the same time it has be to be borne in mind that the
compensation is not expected to be a wind fall for the victim. Statutory provisions clearly
indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit
but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the
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various factors and quantify the amount of compensation, which should be just. What would
be "just" compensation is a vexed question. There can be no golden rule applicable to all
cases for measuring the value of human life or a limb. Measure of damages cannot be arrived
at by precise mathematical calculations. It would depend upon the particular facts and
circumstances, and attending peculiar or special features, if any. Every method or mode
adopted for assessing compensation has to be considered in the background of "just"
compensation which is the pivotal consideration. Though by use of the expression "which
appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to
be rational, to be done by a judicious approach and not the outcome of whims, wild guesses
and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness,
and non arbitrary. If it is not so, it cannot be just."
10. I have considered the submission of l earned counsel for the parties and perused the
impugned judgment and award passed by the learned Tribunal and documents available in
MAC Case No. 03/2015.
11. I have gone through the findings of the learned MACT, Udalguri and I have an
agreement with the same. Learned Member, MACT, Udalguri has rightly awarded the
compensation amount of Rs. 85,000/-. In the facts and circumstances of the case, there is no
further scope to award any further amount to the claimant/victim. The learned counsel for
the appellant has not been able to point out any illegality so as to award further
compensation to the claimant.
12. Looking to the number and nature of injuries, I find that the amount of compensation
awarded in the present case is just, fair and reasonable and as such, no interference by this
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court is called for.
13. In view of above discussion, I do not find any merit in this appeal and accordingly, the
same is dismissed. There is no order as to cost(s).
14. Send down the LCR.
JUDGE
Comparing Assistant
