Sri Arun Chanda vs The Branch Manager
2023 Latest Caselaw 2016 Gua

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GAHC010172212017




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : MACApp./269/2018

            SRI ARUN CHANDA
            S/O LATE NARENDRA CHANDA, R/O G.S. ROAD, COLONY, FATASIL, P.S.
            BHARALUMUKH, P.O. GUWAHATI-9, DIST. KAMRUP (M), ASSAM.



            VERSUS

            THE BRANCH MANAGER,
            CHOLEMENDELAM M.S. GENERAL INS. CO. LTD. , SHANKAR COMPLEX
            2ND FLOOR, CHRISTIAN BASTI, G.S. ROAD, P.O. GUWAHATI 6, DIST.
            KAMRUP (M), ASSAM.

            2:SRI SUNIL SAHU (OWNER)
             S/O SRI KAMAL (OWNER)
            ALOK BAWAN
             NARAYANNAGAL
             P.O. BHARALUMUKH
             P. GUWAHATI-9
             DIST. KAMRUP (M)
            ASSAM.

            3:SRI SURAJ ROY
             S/O LATE NARESH ROY
             R/O G.S. COLONY
             FATASIL
             P.S. BHARALUMUKH
             P.O. GUWAHATI-9
             DIST. KAMRUP (M)
            ASSAM

Advocate for the Petitioner   : MR. J P SARMA

Advocate for the Respondent : MR. K K BHATTA
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                                   BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                        JUDGMENT

Date : 17.05.2023

Heard Mr. J.P. Sarma, learned counsel for the appellant/claimant. Also heard Mr. K.K. Bhatta, learned counsel for the respondents.

2. The claimant is on appeal challenging the judgment and order dated 21.06.2017 passed by the learned Member, MACT No.3, Kamrup(M), Guwahati in connection with MAC Case No. 1136/2010 awarding compensation of Rs.55,510/- in favour of the claimant/appellant.

3. The case of the claimant is that on 26.11.2009 at about 8.30 p.m, the claimant/appellant along with family members were travelling in a Tempo bearing Regd. AS- 01-AA-3618, while proceeding towards Fatasil to Dhirenpara, they met with an accident near Dhirenpara Tila when a Pick-up Van bearing Regd. No. AS-01-BC-9490 coming from opposite direction in a rash and negligent manner collided with the tempo, as a result of which, the claimant and his family members sustained grievous injuries on their person. Immediately after the accident, the injured persons were taken to Guwahati Medical College and Hospital. As the claimant had suffered fracture on his shoulder joint and other injuries on his head, chest and other parts of his body, he had undergone treatment at Patna.

4. The claimant also stated that he had incurred huge expenditure for his treatment. The claimant has filed a claim petition before the learned tribunal claiming compensation of Rs.10,65,000/- for his injuries sustained in motor vehicle accident. It appears from the record that after filing of evidence on affidavit, the claimant did not appear before the court and no cross-examination was done and accordingly the judgment was delivered by the learned tribunal. According to the claimant, the case was posted for cross-examination on 17.04.2017 but on that day, the presiding officer was on leave. Subsequently, the date was fixed on 26.04.2017 and the claimant was absent on the said date and on subsequent date also i.e. Page No.# 3/5

28.04.2017 and fixed on 21.06.2017 for judgment and accordingly, the judgment was delivered awarding compensation of Rs. 55,510/- without hearing the claimant side.

5. Being highly aggrieved and dissatisfied with the judgment and order of the learned tribunal, the claimant has preferred this appeal.

6. The learned counsel for the appellant has argued that the learned tribunal did not consider the grievous injuries sustained by the claimant. The principles for determination of just compensation contemplated under the MV Act are well settled. The claimant is entitled for loss of earning, medical expenses, transportation, special diet, attendant charges etc. Apart from injury, the claimant has to be compensated for consequential loses also.

7. It is also submitted by the learned counsel for the claimant that due to the alleged accident, the claimant sustained grievous injuries due to dislocation of right shoulder bone. He was a glass painting worker, owner of a workshop M/S Assam Handicraft. As his left shoulder was fractured, after the accident, he became disable to perform glass work as earlier. The fact of disability has not been considered by the learned tribunal and no amount was awarded on the head of loss of income.

8. According to the learned counsel for the appellant/claimant, the judgment and award passed by the learned tribunal is not as per provision of law. It is a well settled principle of law that any motor accident claim cases, court must award just compensation and which is lacking in this case. According to the learned counsel for the petitioner, the claimant has filed this claim case for enhancement of the compensation.

9. The learned counsel for the appellant/claimant in support of his submission has relied on a case law- (2020) vol.4 SCC 413 Kajal vs Jagdish Chand & Ors.

10. I have gone through the record of the learned trial court as well as the judgment. The claimant stated that due to the alleged accident, he sustained fracture injuries on his shoulder Page No.# 4/5

joint along with head and chest. Ext. 3 is the OPD slip of GMCH, which reveals that the claimant had attended GMCH on the date of the incident i.e. on 26.11.2009. On examination, the doctor diagnosed acromioclavicular dislocation, shoulder strapping done. The claimant was advised to do CT scan head and x-ray of knee joint. Ext.4 is the CT brain report which shows scalp swelling in the frontal region. One x-ray report of right shoulder joint of the claimant found in the record dated 01.12.2009 which did not say anything regarding dislocation of shoulder joint. The claimant also did not submit any discharge certificate showing that he had to confine in bed for a long time and he was treated in any hospital as an indoor patient for which his income has been affected. No any disability certificate is also available in the record showing any disability on the person of the claimant.

11. Under such scenario, I have come to the conclusion that due to the alleged accident, the claimant sustained injuries on his shoulder joint and shoulder strapping was done by the doctor. It transpires that the injuries sustained by the claimant was simple in nature as nowhere including any prescription it was mentioned that the claimant sustained fracture injury on his shoulder joint.

12. The factum of accident has not been challenged in the case. Hence, claimant is entitled for compensation on the head of pain and suffering and loss of amenities. The claimant nowhere stated that due to the alleged accident, there was loss of earning. However, the claimant is also entitled to get the amount of medical expenditure incurred for his treatment. The claimant has failed to produce any document that he was treated in any hospital as an indoor patient. As such, the question of awarding compensation on the head of attendant charges, special diet and transportation does not arise. The claimant also stated that he had undergone treatment in a hospital at Patna and some zerox copies of documents regarding his treatment at Patna are available in the record. But the said documents were not exhibited before the learned tribunal.

13. In view of above, the appellant/claimant is entitled to Rs. 30,000/- for pain and suffering and another Rs. 30,000/- for loss of amenities. The medical expenditure i.e. Page No.# 5/5

Rs.25,510/- as assessed by the learned tribunal will remain as same.

14. In the result, appeal is partly allowed. The Judgment and Award dated 21.06.2017, passed by the learned Member, MACT No.3, Kamrup(M), Guwahati, in MAC Case No. 1136/2010, is modified to the extent indicated above. The Insurance Company is directed to deposit the amount of Rs. 85,510/-(Rupees Eighty Fife Thousand Five Hundred Ten Only), in the savings account of the claimant/appellant, through NEFT. The claimant/appellant is directed to produce his bank details of any nationalized bank to the Insurance Company for necessary payment. The amount of Award shall carry an interest @ 6% per annum from the date of filing of the case till realization. Any amount paid earlier shall be adjusted accordingly.

15. Return the LCR.

JUDGE

Comparing Assistant