Gauhati High Court
MACApp./503/2018 on 9 November, 2022
Page No.# 1/12
GAHC010103082018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
MAC Appeal No. 503 of 2018
New India Assurance Company Limited,
Having its registered office at New India
Assurance Building 87, Mahatma Gandhi Road,
Mumbai and one of the Regional Office at
G.S. Road, ABC, Guwahati.
..................Appellant
-Versus-
1. Sri Kailash Kalita,
Son of Lt. Gopi Kalita,
Resident of Village : Mairandanga,
P.O.-Chengnoi, District - Nalbari (Assam)
Pin - 781337.
Represented by:
Smt. Manisha Kalita, wife of
Kailash Kalita.
....Respondent(s)/Claimant(s)
2. Sri Dipjyoti Bhattacharjya,
Son of Kamala Kt. Bhattacharjya,
Resident of Village & P.O.- Janigog,
P.S. & District: Nalbari (Assam).
....Respondent
Owner cum driver
Page No.# 2/12
Advocates for the appellant : Mr R K Bhatra
Ms R Gangawat.
Advocate for the respondent : Mr A Acharya
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of Judgment : 09.11.2022
JUDGEMENT AND ORDER (CAV)
Heard Mr R K Bhatra, learned counsel appearing for the appellant/Insurance Company
and Mr J Islam, learned counsel appearing on behalf of the respondents.
2. This appeal is directed under Section 173 of the Motor Vehicles Act, 1988, against the
Judgment and Award dated 13.03.2018, passed by the learned Member, MACT, Nalbari, in
MAC Case No. 80 (Injury) of 2016, awarding a sum of Rs, 3,24,000/- (Rupees Three Lacs
Twenty-Four Thousand) only in favour of the claimant.
3. The brief facts of the case is that on 01.01.2016, at about 12:00 pm, when the claimant
Kailash Kalita was walking by the side of the road and when he reached near Satra M V
School, Nalbari, one motor cycle bearing Registration No. AS-14F-0793, coming in a rash and
negligent manner knocked him down from his backside, as a result of which, he sustained
grievous injuries on his person. Due to the alleged accident, both bones of his left leg were
fractured.
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After the accident, the claimant was admitted to Nalbari Civil Hospital for one day. Thereafter,
he was referred to GMCH, Guwahati, and took treatment there till 08.01.2016, during which
period, his operation was done by inserting tubular plate, external fixator + ORIF & K-wire at
Emergency O.T. on 06.01.2016. It is also alleged that due to the alleged accident, the
claimant became permanently disabled. In connection with the accident, one case was
registered vide Nalbari PS Case No. 36/2016 under Section 279/338 IPC. At the relevant time
of accident, the alleged offending vehicle was duly insured with New India Assurance
Company Limited.
4. It was urged by learned counsel for the appellant/Insurance Company that the
impugned judgment and award passed by the learned Member, MACT, Nalbari, suffers from
serious infirmity since the finding on loss of earning at 40% is perverse and unjustifiable, as
because the doctor examined in the case had categorically admitted in his cross-examination
that the injured could carry out other works and may recover to some extent after treatment.
As such, assessing of 40% loss of future earning, based on the disability of 40% on fracture
of both bones on his left leg was uncalled for and requires interference by this Court.
5. It is also the submission of the learned counsel for the appellant that as per Schedule 1
of the Employees Compensation Act, 1923, 40% loss of earning is assessed and computed
when there is "loss of thumb and its metacarpal bone, loss of both toes of both feet through
the metatarso phalangeal joint, loss of one eye without complications or disfigurement of
eye-ball, the other being normal." As such, assessment of loss of 40% earning for mere
fracture injuries on both bones on the left leg is not as per provision of law, and the same is
liable to be reduced and modified.
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6. Another contention argued by the learned counsel for the appellant that the Tribunal
failed to appreciate the defence evidences of the respondent No. 2, i.e., (DW-1) the owner
cum driver who was the sole eye witness to the entire happening of the accident and
overlooked the categorical admission of the said witness that suddenly, the claimant who
tried to cross the road came in front of his motor cycle and as the distance between the
injured/claimant was less, he could not stop the motor cycle to avoid the accident, though he
applied brakes. In view of such clinching evidence of the eyewitness, the learned Tribunal
ought to have apportioned the compensation holding contributory negligence of the injured
himself and ought not have saddled the entire liability on the insurer of the vehicle.
7. Learned counsel for the appellant also argued that the respondent No. 2, i.e., owner
cum driver of the alleged offending vehicle was below the age of 18 years when his driving
licence was issued by the DTO and as the same was contrary to the provision of Motor
Vehicles Act and rules framed therein, the impugned Judgment and Order is liable to be set
aside and be made payable by the owner of the vehicle and/or for that matter, if made
payable by the appellant/Insurance Company at least recovery rights may be given to the
appellant.
In support of his submission, learned counsel for the appellant has placed reliance on the
following case-law-
(2018) 3 SCC 208; (Pappu & Ors. -Vs- Vinod Kumar Lamba & Ors.)
8. Per contra, learned counsel for the respondent/claimant has submitted that from the
pleadings as well as the evidence on record, it reveals that there was no evidence which
would suggest a contributory negligence of the driver or the claimmant himself, who tried to
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cross the road negligently, which resulted in the accident. The evidence on record is crystal
clear regarding responsibility of the motorcyclist, who was coming in a rash and negligent
manner, knocked down the claimant, as a result of which, he sustained grievous injuries on
his person. Under such backdrop, the Insurance Company is solely liable to pay the
compensation and the learned Tribunal has rightly passed the order, which needs no
interference.
9. Learned counsel also argued that due to the alleged accident, the claimant became
disabled and the doctor assessed his disability as 40% and in support of the fact, the
claimant has submitted disability certificate and the doctor was also examined to prove the
disability certificate and according to the doctor, on examination of the claimant, the Medical
Board assessed 40% of disability. Hence, the Tribunal has rightly calculated the compensation
on assessing the disability of the victim as 40%.
10. It is also submitted by the learned counsel for the claimant/respondent that the
accident occurred due to rash and negligent driving by the rider of the motorcycle, who was
above 18 years at the relevant time of accident. As such, there is no question of giving
recovery rights to the Insurance Company and the Insurance Company is solely responsible
as the vehicle was duly insured with the New India Assurance Company Limited at the
relevant time of accident. Hence, the appellant/Insurance Company is liable to pay the entire
amount of compensation.
In support of his submission the learned counsel for the claimant has cited the following case
laws:
1. Civil Appeal No. 19-20 of 2021 [arising out of SLP (C) 18728/29 of 2018];
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(Kirti & Anr. -Vs- Oriental Insurance Company Limited)
2. GHC Mac Appeal No. 202/2012; (Future Generali Insurance Company Limited
-Vs- Boby Bora & ors.)
3. AO No. 157/2009; (National Insurance Co. Ltd. -Vs-Suneeta Devi & Ors.)
11. I have considered the submissions of learned counsel for both the parties. I have also
perused the Judgment and the documents available in the record of MAC Case No. 80 (injury)
of 2016.
12. The learned Tribunal has awarded compensation amounting to Rs, 3,24,000/- (Rupees
Three Lacs Twenty-Four Thousand) in favour of the respondent/claimant, by considering the
income of the injured as Rs. 3,000/- in a month and future prospect to add 25%, by
considering his age as 47 ½ years at the relevant time of accident. Therefore, the calculation
of assessment of loss of future earning with respect to the disability of the injured of his
whole body was taken as 40%. Therefore, the calculation was considered by the learned
Tribunal as follows:-
A. Annual income before the accident; Rs. 3,750/- x 12 = Rs. 45,000/-
B. Loss of Future earning P.A. (40% of the prior annual income) Rs. 45000/- x 40%= Rs.
18000/-
C. Multiplier applicable with regard to age = 13
D.Loss of Future Earning - Rs. 18000/- x 13 = Rs. 2,34,000/-
13. The Tribunal also added further amount of Rs. 55,000/- as expenses incurred towards
medical treatment and Rs. 25,000/- was added on the head of pain and suffering and Rs.
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10,000/- on transportation and attendant charges with total compensation amounting to Rs.
3,24,000/-.
14. The task of adjudicating the quantum of compensation payable under the non-
pecuniary heads, like loss of amenities, loss of expectation of life, is not so easy though
appears to be easy. The task gets a bit more difficult, if the claimant suffers a permanent
disability while quantifying the compensation under the non-pecuniary heads. The court
needs to pause and ponder particularly in a situation when the claimant suffers disability.
15. Faced with a situation where the claimant who suffered 40% permanent disability in
fracture of both bones of his left leg and the claimant/respondent has claimed compensation
of Rs. 11,80,000/- and learned Tribunal after considering the evidence of the witnesses and
the relevant documents awarded compensation amounting to Rs. 3,24,000/-. The doctor who
treated the claimant assessed the permanent disability at 40%. He deposed in his evidence
as PW-2 before the Tribunal that a District Medical Board was conducted on 14.02.2017,
where Kailas Kalita was examined for post-operative open reduction with internal fixation
fracture of both bones of left leg. He had 40% loco motor disability in relation to his whole
body. Accordingly, disability certificate was issued on 10.03.2017, vide Exhibit-4.
16. In his cross-examination, PW-2 replied that at the District Medical Board, he (PW-2)was
also present. The claimant would be able to run and manage a shop and other works having
sedentary lifestyle. The claimant may recover to some extent after treatment.
17. From the evidence of PW-2, it can be said that the victim could recover after taking
proper treatment. The disability certificate was issued on 10.03.2017. After that, the claimant
has not furnished any medical report, showing his health condition. Under such
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circumstances, it cannot be said that he had 40% permanent disability in relation to his whole
body on subsequent period also. But it is true that due to the alleged accident, both bones of
the left leg of the claimant had been fractured. So definitely, he had suffered grievous injuries
on his left leg.
18. Under such backdrop, the claimant is not entitled to get compensation on the head of
loss of future earning by applying multiplier. But he is entitled to get compensation on the
basis of his injuries relating to his treatment.
19. Regarding evidence and age of the owner /driver of the offending vehicle, it appears
that the owner/driver, Dipjyoti Bhattacharjya was examined as DW-1, who deposed in his
evidence that the accident occurred at around 01:30 pm, about one and half years back, near
Satra M V School, Hajo Road, Nalbari. On the date of accident, he was riding his motorcycle
from Nalbari towards his residence at a slow/reasonable speed of 30-40 kms per hour.
Suddenly, the claimant who tried to cross the road, came in front of the vehicle. As the
distance between the motor cycle and the injured was less, he could not stop the motorcycle
and avoid the accident, though he applied brakes. He was also injured in the alleged
accident.
20. DW-1 also stated that he was not in physical possession of the driving licence at the
time of accident. However, he was having a valid and effective driving licence, which was
proved as Exhibit-A issued by DTO, Nalbari.
21. In his cross-examination, DW-1 replied that when he got his driving licence, he was
about 17 years of age. He got his driving licence in the year 2014. It was a private licence.
22. DW-2 is Junior Assistant in the office of the DTO Nalbari, who deposed in her evidence
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that as per the summons /notice, the DTO, Nalbari was directed to bring original records of
driving license of Dipjyoti Bhattacharjya on and from 19.06.2014.
As per report of the DTO, Nalbari, Dipjyoti Bhattacharjya was authorized to drive Non-
Transport LMV and motorcycle from 01.08.2016 to 31.07.2036 .The said driving licence was
issued on 19.06.2014.
23. From the evidence of the aforesaid witnesses, it reveals that DW-1 is the owner -cum-
driver of the alleged offending vehicle bearing No. AS-14-F-0793 and the driving licence was
issued to DW-1 on 19.06.2014 by DTO Nalbari. From the driving licence, it also appears that
the date of birth of DW-1 was 01.02.1996. It transpires that on the date when the driving
licence was issued to DW-1, he was above 18 years of age. Hence, as per provision of Motor
Vehicles Act, the DTO had issued driving licence to the claimant, after completion of 18 years
by the DW-1. Under such circumstances, the Insurance Company is liable to pay
compensation to the victim.
24. Though the Insurance Company alleged that the accident occurred due to the
negligence of the claimant himself, as he suddenly tried to cross the road and came in front
of the motorcycle and as the distance between the motorcycle and the claimant was less,
driver of the motor cycle could not stop the motorcycle, though he tried to avoid the accident
and applied brakes.
25. The owner/driver of the motor cycle also deposed in the same tune, while he was
examined before the Tribunal as DW-1, but it appears from the record of MAC Case No.
80/2016, wherein the owner/driver of the offending vehicle, Dipjyoti Bhattacharjya, had
submitted written statement, wherein he admitted that he was the owner- cum- driver of the
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Pulsar motorbike bearing No. AS-14-F-0793, at the relevant time of accident. In the written
statement, he denied the allegations of rash and negligent driving of the said motor cycle, but
he nowhere stated that the accident occurred due to the negligent act of the claimant
himself, while he tried to cross the road suddenly, the accident occurred. In view of the
above, it can easily be gathered that whatever stated by the owner/driver as DW-1 when
examined before the learned Tribunal, was an afterthought and cannot be taken into
consideration. So, there is no question of apportionment of liability on payment of
compensation by the claimant.
26. It appears from the record that the victim sustained grievous injuries on both bones of
his left leg and immediately after the accident, he was admitted to Nalbari Civil Hospital and
discharged on the next day. Thereafter, he was referred to GMCH, vide Exhibit-2. Exhibit-3 is
the discharge certificate of GMCH, Gauhati, which shows that the claimant was admitted to
GMCH, on 03.01.2016 and discharged on 08.01.2016. On examination, doctor found fracture
of both bones on the left leg and operation was done by inserting tubular plate. It transpires
that he had to confine on bed at least for nine/ten months. As per claim petition, monthly
income of the injured was shown as Rs. 15,000/- and occupation of the injured was private
service, but no documents are available in the record regarding service or income of the
injured. Learned Tribunal has considered the income of the claimant as Rs. 3,000/-, which is
on the lower side. However, as the incident occurred in the year 2016, I find that the income
of the deceased be considered a Rs. 5,000, which is found to be reasonable. Hence loss of
income appears to be Rs. 5,000/- x 10 = Rs. 50,000/-
27. Claimant is entitled to compensation under the head of pain and suffering as Rs.
70,000/-. Learned Tribunal has awarded amount of Rs. 55,000/- on the head of expenses,
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incurred towards medical treatment, which will remain as same. Loss of amenities of life =
Rs. 70,000/- be awarded. Towards diet, food and nourishment charges = Rs. 50,000/- is
awarded
28. It appears from the record that the claimant had undergone treatment at Nalbari Civil
Hospital and GMCH. So, further amount of Rs. 50,000/- is awarded on the head of
transportation and attendant charges.
29. After computation of compensation, the award would come as follows:-
A. Loss of Income- Rs. 5,000/- x 10 = Rs. 50,000/-
B. Pain and Suffering = Rs. 70,000/-
C. Towards medical treatment = Rs. 55,000/-
D. Loss of amenities of life = Rs. 70,000/-
E. Towards diet, food and nourishment charges
= Rs. 50,000/-
F. Transportation and Attendant Charges
= Rs. 50,000/-
_________________________________________________
Total - Rs. 3,45,000/- (Rupees Three Lacs Forty Five Thousand) only
30. In the result, the appeal is partly allowed with the aforesaid modification. The
Insurance Company is directed to deposit the amount of Rs. 3,45,000/- (Rupees Three Lacs
Forty Five Thousand) only, in the savings account of the claimant, Sri Kailash Kalita, through
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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 claimant/respondent, Sri Kailash Kalita 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.
31. Send down the LCR.
32. Statutory amount in deposit be refunded to the Insurance Company.
JUDGE
Comparing Assistant
