Gauhati High Court
Sri Subir Kumar Bose @ Subir Bose vs The Branch Manager And Anr on 25 July, 2024
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GAHC010234532017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./167/2017
SRI SUBIR KUMAR BOSE @ SUBIR BOSE
S/O SRI ASHOK BOSE, VILL NETAJI NAGAR, WARD NO.3, P.O. PS
KHARUPETIA, DIST. DARRANG, ASSAM, PIN-784115
VERSUS
THE BRANCH MANAGER and ANR
ORIENTAL INSURANCE COMPANY LTD., BRANCH OFFICE TEZPUR
INSURANCE OF THE VEHICLE NO.AS-12/E-3420
2:THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD.
PANBAZAR BRANCH
GUWAHATI INSURER OF THE VEHICLE NO.AS01-CC/447
Advocate for the Petitioner : MR.R DOWARAH
Advocate for the Respondent : MR.S BHUYAN
BEFORE
HONOURABLE MR. JUSTICE K. SEMA
JUDGMENT & ORDER (CAV)
Date : 25-07-2024
Heard Mr. D. Borah, learned counsel for the appellant, Ms. M. Choudhury,
learned counsel for the respondent No.3 and Ms. M. Saikia, learned counsel for
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the respondent No.4. The names of the respondent No.1 & 2 has been struck off
by the Court by the order dated 30/01/2017.
2. Facts of the case in brief is that on 29/06/2014 at about 2:10 A.M while the
appellant was travelling by a vehicle bearing Registration No. AS-12E-3420 and coming
towards Kharupetia from Paltan bazar, the vehicle on reaching near Punia petrol pump
developed mechanical defect and due to which the driver of the vehicle lost control of
the vehicle and dashed/hit the vehicle bearing Registration No. AS-01-CC-4471 (Truck)
from behind. As a result of the accident, the appellant sustained bodily injuries.
3. The appellant/injured thereafter filed the MAC Case No. (I)91/2014 u/s 166 &
140 (2) of the M.V Act 1988 (as amended upto date), before the learned Member
Motor Accident Claims Tribunal (MACT)/Addl. District Judge (FTC) Darrang, Mangaldai,
seeking compensation amounting to Rs. 20,00,000/- (Rupees Twenty lakhs) only for
the injury sustained in the motor vehicular accident.
4. In the claim petition, the owner of the vehicle bearing Registration No. AS-01-
CC-4471 was impleaded as the opposite party No.1, the owner of the vehicle bearing
Registration No. AS-12E-3420 was impleaded as the opposite party No.2, the insurer of
the vehicle bearing Registration No.AS-12E-3420 i.e. the Oriental Insurance Company
Ltd. was impleaded as the opposite party No.3 and the insurer of the vehicle bearing
Registration No. AS-01-CC-4471 i.e. United India Insurance Company Ltd. was
impleaded as the opposite party No.4. The opposite party No. 1, 2, 3 & 4 contested
the claim petition before the Tribunal by filing their written statement. In the present
appeal, however, the names of the opposite party No. 1 & 2 has been struck off by the
order dated 30/01/2017.
5. The learned Tribunal upon adjudication of the claim petition, by judgment dated
30/05/2016 awarded the compensation, to the appellant/injured under the following
heads;
a) Total loss of income : Rs. 7000.00x20%x12x16 =Rs. 2,68,800.00
b) Pecuniary damage : Rs. 90,000.00
c) Pain and suffering : Rs. 25,000.00
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Total=Rs. 3,83,800.00
6. The opposite party No. 3 i.e. the Oriental Insurance Company Ltd. was
accordingly directed to pay the awarded amount of Rs. 3,83,800/- (Rupees Three lakhs
eighty three thousand eight hundred) only with interest at the rate of 6% p.a. from the
date of filing of the petition till realization, within a period of 1(one) month from the
date of the order.
7. That being aggrieved by the judgment dated 30/05/2016 passed by the learned
Member MACT/Addl. District Judge (FTC), Darrang, Mangaldai in MAC Case No.
(I)91/2014, awarding only a sum of Rs. 3,83,800.00, the claimant/appellant has filed
the present appeal, seeking for enhancement of compensation on the following
grounds amongst others;
i) That the appellant at the time of the accident was working as Executive,
General Insurance, Brand New Day Firm, and was earning a monthly income of Rs.
16,000/- (Rupees Sixteen thousand) only and in support of the income, the appellant
had exhibited the pay slip for the month of April 2016, before the Tribunal as Ex-39.
The learned Tribunal however did not consider the monthly income of the petitioner
which was supported by documentary evidence, but unreasonably and without any
basis fixed the income of the appellant at Rs. 7,000/- (Rupees Seven thousand) only
per month.
ii) That in order to prove the bodily injury, the appellant had exhibited the
disability certificate issued by the Doctor treating the appellant as Ex-126 before the
Tribunal. The exhibit showed that the appellant had sustained 40% permanent
impairment of the right eye. The Tribunal however ignored the disability certificate
exhibited by the appellant and without any basis took only 20% as the permanent
disability of the whole body.
iii) That considering that the age of the appellant at the time of the accident was
31 years, 10 months and 23 days (DOB-06/08/1982), and considering that the
appellant had suffered 40% permanent physical impairment and also considering that
the monthly income of the appellant is Rs. 16,000/-, the actual loss of income of the
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appellant should have been Rs. 16,000x40%x12x16=Rs. 12,28,800/- (Rupees Twelve
lakhs twenty eight thousand eight hundred) only. However, the Tribunal by calculating
the total loss of income of the appellant as Rs. 7000x20%x12x16=Rs. 2,68,800/-
(Rupees Two lakh sixty eight thousand eight hundred) only committed a gross
illegality. The appeal therefore, has been filed for enhancement of the award, under
the head, loss of income, in accordance with law.
iv) That the Tribunal has also failed to award damages under the non-pecuniary
heads such as, future medical expenses, loss of marriage prospects, loss of future
enjoyment of life, loss of amenities of life etc., but has only awarded a meager amount
of Rs. 25,000/- (Rupees Twenty thousand) only under the head pain and suffering,
which cannot be treated as a just and fair compensation. Moreover, the award of Rs.
90,000/- (Rupees Ninety thousand) only under the head of pecuniary damage does not
commensurate with the actual expenditure incurred by the appellant for treatment.
v) That the Tribunal has also failed to take into consideration that the appellant
was undergoing treatment for one and half month without getting his monthly salary
and during this period the appellant had suffered a loss of Rs. 24,000/- (Rs. 16000
p.m+Rs.8000 half month salary).
vi) In sum and substance, by taking the various grounds cited above, the present
appeal has been filed by the appellant for enhancement of the compensation amount
of Rs. 3,83,800/- (Rupees Three lakh eighty three thousand eight hundred) only
awarded by the Tribunal.
8. In support of the grounds of appeal, Mr. D. Borah, the learned counsel for the
appellant, has referred to the letter dated 02/08/2010 issued by the authorized person
of the 'Brand New Day Firm' appointing the appellant as the Executive of the Firm and
also the pay slip for the month of April 2014 issued by the Brand New Day Firm
showing the monthly income of the appellant as Rs. 16,000/-. The learned counsel for
the appellant submits that the pay slip which was exhibited before the Tribunal was
neither objected to by the respondent Insurance Company Ltd. nor did the
respondents cross-examined the appellant on the monthly income/salary. The learned
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counsel for the appellant accordingly submits that in the absence of any other
evidence to the contrary, the learned Tribunal ought to have accepted Rs. 16,000/- as
the monthly income of the appellant. However, the learned Tribunal discarding the
documentary evidence submitted by the appellant, without any reasonable grounds,
had reduced the monthly income of the petitioner to Rs. 7,000/-. In support of his
submission, the learned counsel for the appellant has relied in the case of N. Suresh
-versus- Yusuf Sharif & Another, reported in (2012) 11 SCC 281, in which the
Tribunal after appreciating the evidence had awarded Rs. 8,000/- as the monthly
income to the appellant/injured who was working as Mail Courier in Kowdle Post Office
and earning Rs. 2494/- p.m., and also as the Deputy Sales Officer in a marketing
company and getting a commission of Rs. 1500/- to Rs. 3000/- p.m. along with the
salary of Rs. 2000/- per month. Apart from that the appellant was also working as an
Agent in FPG Ltd. Mandya and earning Rs. 2000/- to Rs. 3000/- per month. In the said
case, the monthly income of Rs. 8000/- was reduced to Rs. 3000/- by the High Court.
However, in appeal, the Hon'ble Supreme Court after considering the evidence on
record came to a finding that the appellant was earning a minimum of Rs.8,500/- per
month prior to the accident.
9. Ms. M. Choudhury, the learned counsel for the respondent No. 3 i.e. Oriental
Insurance Company Ltd., on the other hand, submits that there is no infirmity in the
findings of the Tribunal assessing Rs. 7,000/- as the monthly income of the appellant.
Ms. M. Choudhury submits that the appellant has not led any evidence to prove that
he was earning a monthly income of Rs. 16,000/- nor there is any evidence on record
to prove the same. Ms. M. Choudhury further submits that the appellant has not led
any evidence to prove Exhibit-39 which is the appointment letter and the pay slip of
the appellant, by examining the author of the said exhibit and therefore, Exhibit-39 has
no evidentiary value. In support of her submission, Ms. M. Choudhury, the learned
counsel has relied in the case of Syed Basheer Ahamed & Others -versus- Mohd.
Jameel & Others, decided on 06/01/2009 in Civil Appeal No. 10 of 2009 (Arising out
of SLP(C) No. 18001 of 2006 wherein the Hon'ble Supreme Court has held that insofar
as the question of earnings of the deceased is concerned, the onus lies on the claimant
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to prove this fact by leading reliable and cogent evidences before the Tribunal and a
bare assertion in the claim petition is not sufficient to discharge that onus.
10. This Court has perused the evidence of the appellant (PW-1) deposed before
the Tribunal, by way of an affidavit, in which the appellant has deposed that he is
serving as a Relationship Manager of Brand New Day, Ghy and drawing a salary of Rs.
15,000/- and in support of his statement, the appellant has exhibited the salary slip as
Ext-39. In the cross-examination, the appellant has deposed that he has not examined
the person who has issued the salary certificate, as a witness. The evidence of the
appellant in cross-examination clearly demonstrates that the author of Ext-39 has not
been examined. Merely, exhibiting the salary certificate, without examining the author
issuing the certificate, by itself does not prove that the appellant was earning a
monthly income of Rs. 16,000/-. In the absence of any evidence to prove Ext-39, the
said exhibit, in the considered opinion of this Court, does not carry any probative
value.
11. The Hon'ble Supreme Court in the case of Syed Basheer Ahamed (supra) has
clearly held that insofar the question of earning is concerned, the onus lies on the
claimant to prove this fact by leading reliable and cogent evidence before the Tribunal
and a bare assertion in the claim petition is not sufficient to discharge that onus. In
the present case too, the appellant has not been able to discharge the onus that he
was earning a monthly income of Rs. 16,000/- by cogent and reliable evidence, more
particularly by examining the author of Exhibit-39. In view of the discussions made
above, this Court is inclined to accept the finding of the learned Tribunal that the plea
raised by the appellant that he was working as a Manager of Brand New Day Company,
is found not proved. Moreover, the finding of the learned Tribunal that the appellant
being aged about 30 years and an able bodied person could muster a monthly income
of Rs. 7,000/- is found rational and needs no interference by this Court.
12. Secondly, in order to substantiate the bodily injury suffered by the appellant in
the accident, the appellant has exhibited the Disability Certificate dated 22/08/2015
(Ext-126) before the Tribunal. In the Disability Certificate, the Doctor treating the
appellant has certified that the appellant has sustained 40% permanent impairment of
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his right eye. In order to prove the Disability Certificate, the appellant has examined
Dr. Ramesh Ch. Goswami, Joint Director of Health Services as the PW-2. It is however
the case of the appellant that in spite of the Disability Certificate showing 40%
permanent impairment of the right eye of the appellant, the learned Tribunal without
any legal basis has only taken 20% as the permanent disability of the whole body. In
support of his submission, the appellant has relied in N.Suresh (supra), in which the
Hon'ble Supreme Court on examining the evidence of the Doctor has held that the
appellant/injured has suffered 90% permanent disablement to earn any income. In the
said case, the Doctor treating the appellant/injured, who was serving as a Manager in
Marketing Company, had deposed before the Tribunal that the right leg of the
appellant is 90% disabled and is permanently paralysed and the face of the appellant
is also deformed and disabled to the extent of 50% to 60% and because of which the
appellant/injured is not in a position to open his mouth fully. In the said case, the
Hon'ble Supreme Court after examining the evidence on record held that the Tribunal
and the High Court had failed to appreciate the fact and fixed the disability of the
appellant at the lower level of 40% and/or 50%. Mr. D. Borah accordingly submits that
when the disability certificate exhibited by the appellant clearly demonstrated that the
appellant has suffered permanent physical impairment of 40%, the learned Tribunal
committed an illegality by giving a finding that the 40% permanent impairment of the
right eye of the appellant could be taken as 20% permanent disability of the whole
body.
13. Ms. M. Choudhury, the learned counsel for the Oriental Insurance Co. Ltd. in
support of the judgment dated 30/05/2016 passed by the Tribunal, on the other hand,
submits that the disability certificate exhibited by the appellant was never proved by
examining the Doctor who had treated the appellant and issued the disability
certificate. Ms. M. Choudhury submits that to prove the disability certificate, the
appellant had examined one Doctor Ramesh Chandra before the Tribunal who had
neither treated the appellant nor issued the disability certificate. Ms. M. Choudhury
therefore submits that the evidence of Doctor Ramesh Chandra has no evidentiary
value and mere exhibition of the disability certificate by itself will not prove the
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physical disability suffered by the appellant, unless the Doctor who has treated the
appellant has been examined.
14. Ms. M. Choudhury further submits that 40% permanent impairment is with
reference to the right eye vision and not in regard to the entire body and therefore,
the learned Member has rightly accepted 20% as the permanent disability of the whole
body although no evidence was led on the disability certificate adduced by the
appellant. In support of her submission, Ms. Choudhury has relied in the case of Raj
Kumar -versus- Ajay Kumar and Another, reported in (2011) 1 SCC 343, wherein
the Hon'ble Supreme Court has held that the Tribunal may invariably make it a point to
require the evidence of the Doctor who had treated the injured or had assessed the
permanent disability. In the said case, it was also held that mere production of a
disability/discharge certificate will not be prove of the extent of disability unless the
Doctor who had treated and medically examined the claimant and had assessed the
extent of disability is tendered for cross-examination with reference to the certificate.
Furthermore, in Raj Kumar (Supra), it was also held that the percentage of loss of
earning capacity is not the same as the percentage of permanent disability except in
few cases where the Tribunal on the basis of the evidence concludes that the
percentage of loss of earning capacity is the same as the percentage of permanent
disability. It was also held that the Doctor who treated the injured/claimant or
examined him subsequently to assess the extent of permanent disability can give
evidence only in regard to the extent of permanent disability but the loss of earning
capacity is something that will have to be assessed by the Tribunal with reference to
the evidence in its entirety.
15. This Court has perused the Disability Certificate dated 22/08/2015 exhibited as
Ext-126 before the Tribunal. This Court has also perused the evidence of Doctor
Ramesh Ch. Goswami who was examined as PW-2 to prove the disability certificate. In
his examination-in-chief, before the Tribunal, Dr. Ramesh Ch. Goswami has deposed
that he is working as the Joint Director of Health Service-in-charge and Ext-126 is the
Disability Certificate issued in favour of the appellant by Dr. (Mrs.) Manjulla Medhi,
since retired. Dr. Ramesh Chandra Goswami has also deposed that he knows the
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signature of Dr. (Mrs.) Manjulla Medhi by comparison. In cross-examination, Dr.
Ramesh Ch. Goswami has deposed that he came to the Court as he had received the
summon. He has deposed that he has no personal knowledge that the patient S.Das
was in fact given the certificate. He has further deposed that he does not know the
appellant.
16. From the evidence of Dr. Ramesh Ch. Goswami, it transpires that the Doctor
who had treated the appellant injured and issued the disability certificate was not
examined by the appellant before the Tribunal. Therefore, merely by exhibiting the
disability certificate (Ext.126) will not be proof of the extent of the disability stated in
the certificate unless the Doctor who treated the appellant is examined to assess the
extent of disability with reference to the certificate. The Hon'ble Supreme Court in Raj
Kumar (supra) has clearly held that the Tribunal may invariably make it a point to
require the evidence of the Doctor who treated the injured or assessed the permanent
disability. In the said case, it was further held that mere production of a disability
certificate will not be proof of the extent of disability stated therein unless the Doctor
who treated the claimant or who medically examined an assessed the extent of the
disability is tendered for cross-examination with reference to the certificate. This Court
is in respectful agreement with the law laid down by the Hon'ble Supreme Court that
the Doctor who has treated and examined the injured and has issued the disability
certificate must be examined to prove the certificate.
17. This Court has also perused the judgment dated 30/05/2016 wherein the
learned Tribunal has also recorded the deposition of Dr. Ramesh Ch. Goswami stating
that he does not know the basis as to why the disability certificate was issued by the
then Joint Director. The learned Tribunal has also observed that though the appellant
has suffered permanent impairment of his right eye to the extent of 40% but it has not
been proved that the appellant cannot pursue his normal avocation. The Tribunal has
also observed that there is nothing to show that the appellant could not pursue his
duty as a Relationship Manager of Brand New India nor there is nothing to show that
the appellant was appointed as a Manager of the company. Therefore, the plea raised
by the appellant that he is working as a Relationship Manager of the company is not
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found proof. Therefore, taking all this facts into consideration the learned Tribunal has
held that 40% permanent impairment of the right eye of the appellant could be taken
as 20% permanent disability of the whole body.
18. The Hon'ble Supreme Court in the case of Raj Kumar (supra) has held as
follows;
"19. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do not
result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole
body of a person, cannot be assumed to be the percentage of loss of earning
capacity. To put it differently, the percentage of loss of earning capacity is not
the same as the percentage of permanent disability (except in a few cases,
where the Tribunal on the basis of evidence, concludes that percentage of loss
of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured-claimant or who examined him
subsequently to assess the extent of his permanent disability can give evidence
only in regard the extent of permanent disability. The loss of earning capacity is
something that will have to be assessed by the Tribunal with reference to the
evidence in entirety.
(iv) The same permanent disability may result in different percentages of
loss of earning capacity in different persons, depending upon the nature of
profession, occupation or job, age, education and other factors."
19. In the present case, the learned Tribunal on the basis of the evidence adduced,
had held that, though the claimant has suffered permanent physical impairment of his
right eye to the extent of 40% but it has not been proved that the appellant could not
pursue his duty as a Relationship Manager of Brand New Day Firm although the
Tribunal has further held that there is no evidence, on record, to show that the
appellant was appointed as a Manger of the Firm. On the basis of such findings the
learned Tribunal has held that 40% permanent impairment caused to the right eye of
the appellant could be taken as 20% permanent disability of the whole body. This
Court on proper perusal of the judgment dated 30/05/2016 and the evidence on
record finds that there is no infirmity in the judgment dated 30/05/2016 passed by the
learned Tribunal taking 40% permanent impairment of the appellant's right eye, as
reflected in the disability certificate, as 20% permanent disability of the whole body.
20. In N. Suresh (supra), referred to by the learned counsel for the appellant, the
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Hon'ble Supreme Court after examining the evidence adduced before the learned
Tribunal came to a finding that the appellant therein was earning a minimum of Rs.
8500/- per month prior to the accident. So also in the said case, the Hon'ble Supreme
Court after examining the evidence adduced by the Doctor, before the Tribunal, has
held that the appellant is 90% permanently disabled to earn any income. In the instant
case, neither the person who had issued the pay slip (Ext-39) to the appellant was
examined nor the Doctor who had treated the appellant and issued the disability
certificate (Ext-126) was examined. The case of N. Suresh (supra) therefore cited by
the appellant in support of his case is, in the considered opinion of this Court, not
relevant to decide the present case.
21. In the light of the discussions made above, this Court, finds no infirmity in the
findings of the Tribunal holding that the appellant was earning a monthly income of
Rs.7000/- and had suffered 20% permanent disability of the whole body and by
applying the multiplier of 16 has assessed the total loss of income of the appellant as
Rs. 2,68,800/- (Rs. 7000.00x20%x12x16=Rs. 2,68,800/-).
22. Secondly, the appellant is also aggrieved by the judgment dated 30/05/2016
awarding only a sum of Rs. 90,000/- as pecuniary damage. Mr. D. Borah, learned
counsel for the appellant submits that although the appellant has exhibited medical
bills/vouchers/cash receipts etc. actually amounting to Rs. 1,07,007.30/- (Rupees One
lakh seven thousand seven and thirty paisa) only, the learned Tribunal has awarded
only a sum of Rs. 90,000/- as pecuniary damage. The learned counsel has further
submitted that the learned Tribunal has assessed only a meager amount of Rs.
25,000/- under the head pain and suffering and has also failed to award any
reasonable compensation under different heads such as future medical expenses, loss
of earning during the laid up period, loss of amenities and other incidental charges and
loss of marriage prospects etc. The learned counsel for the appellant accordingly
submits that a sum of Rs. 1,50,000/- may be granted as compensation for future
treatment/eye replacement and a further sum of Rs. 1,50,000/- should be granted to
the appellant as compensation for the laid up period during which the appellant was
under treatment and for loss of amenities and loss of marriage prospects etc. It is
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further submitted that considering the injuries suffered by the appellant, the
compensation of Rs. 25,000/- awarded by the Tribunal under the head pain and
suffering should be enhanced to Rs. 50,000/-. In support of the above submission, the
appellant has relied in N. Suresh (supra) as well as in the case of Syed Sadiq &
Others -versus- Divisional Manager United India Insurance Company Limited,
reported in (2014) 2 SCC 735.
23. In N. Suresh (supra), the Hon'ble Supreme Court after examining the evidence
of the Doctors adduced before the Tribunal came to a finding that the appellant is 90%
permanently disabled to earn any income. The Hon'ble Supreme Court also on
examining the evidence on record awarded compensation to the appellant, therein, as
follows, under the following heads.
"20. If the aforesaid amount is taken into consideration towards the
above said heads, then as per High Court's calculation the break-up of amounts
is as follows:
1 Towards pain and sufferings Rs 1,00,000
(as awarded by High Court)
2 Towards medical expenses Rs 1,86,000
(as determined above)
3 Towards conveyance, Rs 40,000
nourishing food and attendant
charges
(as awarded by the High Court)
4 Towards loss of income during Rs 51,000
laid-up period
(as determined above)
5 Towards loss of amenities Rs 1,00,000
(as awarded by the High Court)
6 Towards loss of future income Rs 14,68,800
(as determined above)
7. Towards future medical Rs. 30,000
expenses
(as awarded by the High Court)
Rs. 19,75,800
Total
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21. Accordingly, the appeal is allowed and the impugned judgment and
award passed by the Tribunal in MVC No.106/2003 dated 9-9-2005 and the
High Court in MFA No.11865 of 2005 dated 28-9-2010 1 stands modified,
awarding compensation of Rs.19,75,800/- with interest at the rate of 6% per
annum from the date of the petition till realisation. The second respondent New
India Assurance Company Ltd. is directed to pay immediately to the appellant
total amount of Rs.19,75,800/- with 6% interest, after deducting the amount
already paid by them."
24. In Syed Sadiq (supra), the Hon'ble Supreme Court dealing with the three Civil
Appeals has held as follows;
Civil Appeal arising out of MFA No. 1131 of 2011 (MVC No. 149 of 2010).
In the said Civil Appeal, the Hon'ble Supreme Court has held that the appellant
who is a vegetable vendor aged about 25 years at the time of the occurrence of the
accident and earning Rs. 6500/- per month and has suffered disability to the extent of
85% to determine the loss of income after applying the multiplier of 18 has awarded
Rs. 17,90,100/- under the head loss of future income. Besides, the award made under
the head loss of future income, the Hon'ble Supreme Court also held the appellant
entitle to compensation under conventional heads along with the cost of litigation as
under;
Towards cost of artificial leg Rs 50,000
Towards pain and suffering Rs 75,000
Towards loss of marriage prospectus
Rs 50,000
Towards loss of amenities Rs 75,000
Towards medical and incidental cost
Rs 1,00,000
Towards cost of litigation Rs 25,000
Civil Appeal arising out of MFA No. 1132 of 2011 (MVC No. 147 of 2010).
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In this case too, the Hon'ble Supreme Court after observing that the appellant
who is also a vegetable vendor and has sustained functional disability of 35% and
considering other relevant factor has held that the appellant besides being entitled to
Rs. 7,37,100/- under the head loss of future income is also entitled to compensation
under the follows heads;
Towards pain and suffering Rs 60,000
Towards medical and incidental charges Rs 1,00,000
Towards loss of amenities Rs. 40,000
Towards future medical expenses Rs 15,000
Towards cost of litigation Rs 25,000
Civil Appeal arising out of MFA No. 1133 of 2011 (MVC No. 148 of 2010).
In this appeal too, the Hon'ble Supreme Court after holding that the appellant
who is working as a cleaner of lorry and has suffered functional disability to the extent
of 85% and also considering other relevant factors has awarded Rs. 13,77,000/- as
the future loss of income, besides awarding the compensation under the following
heads;
Towards pain and suffering Rs 60,000
Towards medical and incidental expenses Rs 50,000
Towards loss of amenities Rs 50,000
Towards future expenses Rs 5,000
Towards cost of litigation Rs 25,000
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25. Ms. M. Choudhury, on the other hand, while fairly submitting that as the
appellant has been able to substantiate that he has incurred Rs. 1,07,007.30/- towards
his medical treatment with medical bills, vouchers, cash memos etc., the compensation
granted under the head pecuniary damage may be enhanced from Rs. 90,000/- to Rs.
1,07,007.30/- and to that extent the appellant is entitled to some enhancement. Ms. M.
Choudhury however submits that insofar as the claim under the other head is
concerned no evidence has been led by the appellant before the Tribunal and
therefore, the appellant is not entitled to any compensation under such heads. Insofar
as the compensation of Rs. 25000/- awarded under the head pain and suffering is
concerned, Ms. M. Choudhury submits that the learned Tribunal has reasonably
assessed the compensation under the said head and therefore, no interference is
called for.
26. This Court has perused the judgment dated 30/05/2016 passed by the learned
Tribunal. This Court has also perused the records, called for, from the learned Tribunal.
A perusal of the records, more particularly, the medical treatment certificates, reveals
that after the occurrence of the motor vehicular accident on 29/06/2014, the appellant
was taken to Mangaldai Civil Hospital Darrang, Assam (Ext-2) and thereafter on the
same day i.e. 29/06/2014, the appellant was shifted and admitted at GNRC, Dispur,
Guwahati. In the discharge summary and advised issued by the GNRC dated
04/07/2014 which is Exhibit-4(4), the appellant's injury is diagnosed as injury to head,
lacerated injury-right side of face and eye injury. The appellant was advised removal of
stitches on 10/07/2014 and advised rest for 6(six) weeks. On 18/12/2014, the
appellant attended AKSI Advance Eye Centre Guwahati where the appellant underwent
socket restruction and eye ball implant (Exhibit-6). Thereafter, on 17/02/2015, the
appellant attended Sri Sankaradeva Nethralaya Hospital, Guwahati where the surgery
of lid repair (right eye) was performed. The discharge certificate issued by the said
hospital has been exhibited as Ext-5. So also on 03/03/2015, the appellant attended
Chatterjee Clinic and the outpatient slip issued by the clinic is exhibited as Ext-7.
27. The discussions made in the preceding paragraph shows that the appellant, as a
result of the accident, sustained injury to the head and right eye and for which the
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appellant was attending the Doctors every now and then for his treatment. From the
medical record exhibited by the appellant before the Tribunal, it can be said that, the
appellant was reasonably prevented from discharging his normal works for at least 3/4
months. So also during the period of treatment specially during the initial days, the
appellant certainly must have required the assistance of an attendant and must also
have been on special diet. Moreover, the learned Tribunal in its judgment dated
30/05/2016 has given a finding that the 40% permanent impairment of the right eye
of the appellant could be taken as 20% permanent disability of the whole body.
However, the learned Tribunal besides awarding the compensation under the head loss
of income, pecuniary damage, pain and suffering etc. has not awarded any
compensation under the heads such as loss of amenities, marriage prospects, future
medical expenses, conveyance, nourishing food, attendant charges etc. Further, this
Court is also of the view that in the light of the decision in Syed Sadiq (supra), the
appellant is also entitled to the cost of litigation.
28. Hence, besides the compensation awarded by the learned Tribunal, under the
head loss of income, the appellant/claimant is also entitled to compensation under the
following heads;
Towards loss of amenities Rs 50,000
Towards loss of marriage prospect Rs 50,000
Towards future medical expenses Rs 20,000
Towards nourishing diet, conveyance & Rs 30,000
attendant charges
Towards cost of litigation Rs 30,000
Towards loss of income during the laid-up Rs 21,000
period (Rs 7000x3 months)
Total Rs. 2,01,000/-
(Rupees Two lakh one thousand) only
29. The Tribunal in the judgment dated 30/05/2016 has awarded Rs. 90,000/-
under the head pecuniary damage, the learned counsel for the appellant has however
submitted that the appellant has incurred Rs. 1,07,007.30/- towards medical expenses
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and has exhibited the medical bills, vouchers, cash memos etc. The appellant should
therefore be awarded the actual medical expenditure incurred and not Rs. 90,000/-.
The compensation under pecuniary damage is accordingly enhanced and rounded off
to Rs. 1,10,000/- (Rupees One lakh ten thousand) only, from Rs. 90,000/- (Rupees
Ninety thousand) only.
30. Furthermore, this Court considering the injuries suffered by the appellant and
taking into account the treatment and the surgery undergone by the appellant at
GNRC Dispur, AKSI Advance Eye Centre and Sri Sankaradeva Nethralaya Hospital,
Guwahati, deems it reasonable to enhance the compensation under the head pain and
suffering to Rs. 75,000/- (Rupees Seventy five thousand) only from Rs. 25,000/-
(Rupees Twenty five thousand) only awarded by the Tribunal.
31. Ms. M. Choudhury, the learned counsel for the Insurance Company, has
submitted that the compensation amount of Rs. 3,83,800/- awarded by the learned
Tribunal in the judgment dated 30/05/2016 along with 6% interest p.a. amounting in
total to Rs. 4,40,985/- (Rupees Four lakh forty thousand nine hundred eighty five) only
has been deposited by the Oriental Insurance Co. Ltd. before the learned Member
MACT, Mangaldai, on 13/11/2017, vide Cheque No. 1413.
32. The respondent No. 3 i.e. the Oriental Insurance Co. Ltd. Branch Office, Tezpur,
in addition to the compensation already awarded and deposited shall also pay the
following modified/enhance compensation to the appellant with interest at rate of 6%
from the date of filing of the present appeal petition.
Towards loss of amenities Rs 50,000
Towards loss of marriage prospect Rs 50,000
Towards future medical expenses Rs 20,000
Towards nourishing diet, conveyance & Rs 30,000
attendant charges
Towards cost of litigation Rs 30,000
Towards loss of income during the laid-up Rs 21,000
period (Rs 7000x3 months)
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Enhanced pecuniary damage Rs 20,000
Enhanced compensation under the head pain Rs 50,000
and suffering
Total Rs. 2,71,000
(Rupees Two lakh seventy one thousand) only
33. The modified/enhanced compensation amounting to Rs. 2,71,000/- along with
6% interest from the date of filing the present appeal, shall be paid by the respondent
No.3 i.e. Oriental Insurance Co. Ltd. Branch Office, Tezpur, to the appellant within a
period of 30(thirty) days from the date of passing of the judgment.
34. The appeal stands allowed to the extent indicated above. No cost.
35. Return back the LCR forthwith.
JUDGE
Comparing Assistant
