Gauhati High Court

The Oriental Insurance Company Ltd vs Sri Anil Kuruwa And 2 Ors on 29 October, 2024

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GAHC010004122017




                                                                                 2024:GAU-AS:10588




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

                                    MACApp. 98/2019

The Oriental Insurance Company Ltd
Having Its Registered Office At Assaf Ali Road, New Delhi And
Regional Office At G.S. Road, Ulubari, Guwahati, Represented
By Its Regional Manager, Regional Office, Guwahati (Insurer
Of The Vehicle No. As-12e-3520 (Mini Truck)


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

VERSUS

Sri Anil Kuruwa And 2 Ors

S/O Sri Ramlal Kuruwa, R/O Vill. Kuruwabasti, P.O. And P.S. Helem,

Dist. Sonitpur, Assam, Pin 784001

2:Surya Bh. Chetry

S/O Late Mon Bh. Chetry

R/O Vill. Kuruwabasti

P.S. Helem

Dist. Sonitpur
                                                                                 Page No.# 2/10

Assam

Pin 784001

3:Bishnu Chetry

S/O Late Damber Ch. Chetry

R/O Vill. Kuruwabasti

P.S. Helem

Dist. Sonitpur

Assam

Pin 78400

                                                                    ....Respondents

Advocates for the Appellant: Mr. S.K. Goswami, Advocate,

Advocates for the respondents : Ms. B. Devi, Advocate for the respondent no.1

BEFORE HON'BLE MR. JUSTICE KARDAK ETE

Date of hearing : 29.10.2024 Date of Judgment : 29.10.2024

JUDGMENT & ORDER (Oral)

Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Ms. B. Devi, learned counsel for the respondent no.1/claimant. None appears for the respondent nos.2 and 3, despite service of notice.

2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as MV Act, 1988 in short) is directed against the Page No.# 3/10

judgment and award dated 29.03.2017 passed by the learned Member, Motor Accident claims Tribunal, Biswanath Chariali, Sonitpur, in MAC Case No. 165/2012

3. The case, in nutshell, is that on 05.09.2011, the respondent no.1/claimant, while he was returning from Sadharu Paneri Tea Factory with tea leaves as the handyman of the Bolero Pickup Van bearing Registration No. AS-12E-3520 seated in the cabin of the said vehicle and reached near Bulbul Tea Estate, it skidded off the road and fell down on the road side of NH-52. As a result of the said accident, the respondent No.1/claimant sustained grievous injury on his right elbow joint. The right hand had to be amputated below the elbow joint thereby causing permanent disability.

4. The respondent no.1/claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand) only as compensation for the injuries sustained by him, which was registered as MAC Case No. 165/2012 before the learned member, Motor Accident Claims Tribunal, Biswanath Chariali, Sonitpur. The appellant has contested the case by filing written statement however, the respondent nos. 2 and 3 (owner and driver of the offending Bolero Pickup Van) did not contest the claim.

5. Upon pleadings of the parties, three issues were framed as under:-

(i) As to whether the alleged accident occurred due to rash and negligent driving of the driver of the vehicle?

(ii) Whether the claimant is entitled to get any compensation, if so, to what extent and from whom?

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(iii) To what other relief/reliefs, the claimant is entitled to in law and equity?

6. The respondent no.1/claimant had adduced evidence on affidavit as PW-1. However, the appellant did not examine any witness.

7. The respondent no.1/claimant as PW-1 had deposed that while he was

returning from Sadharu Paneri Tea factory, with bought tea leaves by the

offending vehicle (who is handyman of the offending vehicle) bearing

registration No. AS-12E-3520 sitting in the cabin of the vehicle and while the

offending vehicle reached near Bulbul T.E., skidded off the road and fell down

on the roadside of NH-52 and as a result the claimant sustained injury on the

right elbow joint, who had to ampute his right hand causing permanent

disability. PW-1, in support of his case exhibited accident information report as

Ext.1, Discharge-Certificates as Ext.2 & 3, Money receipts Hospital bill as Ext.4 &

5, Money receipts amounting to Rs.1,050/- as Ext.6, X-ray Report as Ext-7 and

disability certificate as Ext.8.

8. It reveals from Ext.1 i.e. the accident information report that O/C, Behali

Police station, mentioned clearly that the accident took place on 05-09-2011 at

8:20 p.m. near BulBul T.E. and the vehicle involved in the accident was Bolero

Pick Up bearing registration No.AS-12-E-3520. The name of the owner of the

aforesaid vehicle is also mentioned as Sri Surya Bh. Chetry and the said vehicle

was duly insured with The Oriental Insurance Company Ltd. i.e. O.P. No.3 vide Page No.# 5/10

policy No.321202/31/2011/3774 valid up to 15-03-12. The O.P. No.3/appellant,

the Oriental Insurance Company Ltd. contested the case by filing Written

Statement but failed to examine any witness to prove the contrary.

9. In view of the above, it is seen that the accident which took place on 05-

09-2011, resulting amputation at the elbow joint of the right side arm of the

claimant and was due to rash and negligent driving of the driver of the

offending vehicle bearing registration No.AS-12-E-3520.

10. The learned Tribunal has also recorded that the accident occurred due to

rash and negligent driving of the driver of the offending vehicle, and therefore,

the claimant is entitled to receive compensation. The claimant in his evidence

stated that though he incurred Rs.40,000/- for his treatment but he has

submitted cash-memo, hospital bills and money receipts only for Rs.26,050/,

therefore, for calculation of compensation, the total amount of vouchers

submitted comes to Rs.26,050/- only. Ext.2 & 3, the Discharge Certificates and

other prescriptions shows that the claimant had sustained injuries following the

said accident for which his right elbow joint was amputated. From Ext.2 it

reveals that the claimant took treatment at Skylark Hospital & Research Centre,

Tezpur, for about 6 days as indoor patient, where he was operated. The

claimant has submitted Disability Certificate (Ext.8) issued by the Medical and Page No.# 6/10

Health Officer Biswanath Chariali Civil Hospital, Dist. Sonitpur, Assam, wherein it

is mentioned that the injured Anil Kuruwa is suffering from 50% disability. In the

claim petition, the claimant has mentioned his age to be 23 years which is also

supported by the Discharge-Certificate. The daily income of a Handyman has

been taken as Rs.120/- per day and accordingly, claimant earned Rs.3,600/-

(Rs.120/- X 30) per month.

11. After consideration of the evidence, the learned Tribunal has awarded of

Rs. 12,32,450/- (Twelve Lakhs Thirty Two Thousand Four Hundred Fifty only) as

compensation to be paid by the appellant to the respondent/claimant in

different heads with interest @ 5% interest from the date of filing of the claim

petition.

12. Mr. S.K. Goswami, learned counsel for the appellant submits that the

Respondent No.1/claimant as a result of the accident sustained injury on the

right elbow joint causing "permanent partial disability" and his right hand had to

be amputated below the elbow joint. The respondent No.1 (claimant) submitted

a Disability Certificate (Ext.8) issued by the Medical & Health Officer, Biswanath

Chariali Civil Hospital, Sonitpur, Assam wherein it is clearly mentioned that the

injured had suffered 50% Disability.

12. From a perusal of Part-II of Schedule-I of the Employees Compensation Page No.# 7/10

Act, 1923 which deals with list of injuries deemed to result in "Permanent Partial

Disablement" and also prescribes the corresponding percentage of loss of

earning capacity, it is evident that in the instant case, the loss of earning

capacity of the respondent No.1/ claimant is only to the extent of 60%.

13. He submits that the learned Tribunal failed to appreciate the aforesaid

aspect of the matter and erroneously assessed loss of future earnings on the

basis that the loss of earning capacity of the respondent No.1/ claimant in the

present case is 100%. Such Irregularities/infirmities have vitiated the impugned

judgment and award dated 29.3.2017 and as such calls for interference by this

Hon'ble Court.

14. Mr. S.K. Goswami, learned counsel for the appellant also submits the learned

Tribunal while assessing compensation also awarded 50% as future prospects

by taking into consideration the age of the injured/ claimant which is not

permissible in law. Such irregularities/infirmities have vitiated the impugned

judgment and award dated 29.3.2017 and accordingly the same is liable to be

suitability interfered with by this Hon'ble Court.

15. Ms. B. Devi, learned counsel for the respondent no.1/claimant, on the

other hand, submits that there is no error in awarding the respondent

no.1/claimant an amount of compensation of Rs. 12,32,450/- (Twelve Lakhs Page No.# 8/10

Thirty Two Thousand Four Hundred Fifty) only which is just and reasonable

compensation to be paid by the appellant to the respondent no.1/claimant with

5% interest from the date of filing of the claim petition, as the claimant had

clearly established that the accident had occurred due to which he has

sustained injuries in right elbow joint which led to amputation causing

permanent disability. Therefore, she submits that the appeal may be dismissed.

16. I have considered the submissions of the learned counsel for the parties

and perused the record.

17. Undoubtedly, the respondent No. 1/claimant had sustained injury on the

right elbow joint, which has been amputed and caused permanent disability as a

result of accident. The Disability Certificate has been exhibited as Exhibit-8

issued by the competent authority, which clearly mentioned that the injured had

suffered 50% disability. However, as per Part-II of Schedule-I of the Employees

Compensation Act, 1923, which deals with the list of injuries deemed to result in

permanent person disablement prescribed the correspondent percentage of loss

of earning capacity is only to the extent of 60%. The learned Tribunal in my

considered view has failed to appreciate that aspect of the provision and

erroneously assessed the loss of future earning on the basis of loss of earning

capacity of the claimant to be a 100%.

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18. It is also seen that while assessing the compensation for future prospects

and awarding compensation, the learned Tribunal has awarded a 50% as future

prospects by taking into consideration the age of the claimant which would not

be permissible under the law.

19. Having considered above, it would be appropriate to modify the

assessment of compensation by the learned Tribunal. Accordingly, the

assessment of the award is as under:-

Monthly income (Notional) : Rs. 3,600/-

(Plus) Future Prospect (40% of Rs. 3,600) : Rs. 1,440/-

Total income                         : Rs. 5,040/- per month

Annual Income                               : Rs. 60,480/-

Multiplier (Rs. 60,480 x 18)                 : Rs. 10,88,640/-

So, loss of earning capacity is
(10,88,640 x 70% disability as per
Schedule of W.C. Act)                       : Rs. 7,62,048/-

Medical expenses                             : Rs. 26,050/-

Incidental expenses                         : Rs. 20,000/-

Pain, shock and suffering                   : Rs. 20,000/-

Total award                                 : Rs. 8,28,098/-

Interest                                            :6.5% per annum

20. The appellant is directed to pay the respondent no.1/claimant an amount

of Rs. 8,28,098/- (Rupees Eight Lakhs Twenty Eight Thousand Ninety Eight) only Page No.# 10/10

with interest at the rate of 6.5% per annum from the date of filing of claim

petition till realization. Since the appellant had deposited 50% of the awarded

amount of Rs. 12,32,450/- (Twelve Lakhs Thirty Two Thousand Four Hundred

Fifty) only and also Rs. 25,000/- (Twenty Five Thousand) only as a statutory

deposit, the deposited amount be deducted from the total amount of Rs.

8,28,098/- (Rupees Eight Lakhs Twenty Eight Thousand Ninety Eight) only with

interest at the rate of 6.5% per annum. The remaining amount be paid to the

respondent no.1/claimant. The respondent no.1/claimant is allowed to withdraw

the amount deposited by the appellant in the Registry of this Court, which shall

be allowed by the Registry on proper identification.