Tripura High Court
Shri Subrata Sarkar vs Shri Prasenjit Majumder on 6 August, 2021
HIGH COURT OF TRIPURA
AGARTALA
MAC App. 16 of 2020
Shri Subrata Sarkar, son of Sri Sadhan Sarkar, vill-Khilpara, P.S.-
R.K.Pur, Udaipur, Gomati District ..............Applicant(s)
Versus
1.Shri Prasenjit Majumder, son of Shri Shibu Majumder of east
Charakbai, P.S-Baikhora, Santirbazar, District-South Tripura(owner
of TR-03-1348, Mini Bus)
2.Shri Naresh Das, son of Late Kanchi Lal Das, of West Charakbai,
P.S.Baikhora, Santirbazar, District-South Tripura(driver of TR-03-
1348, Mini Bus)
3.The Branch Manager, National Insurance Company. Ltd. Udaipur
Branch, Central Road, R.K.Pur, Udaipur, Gomati(insurer of the
vehicle) ...............Respondent (s)
BEFORE
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
For Applicant(s) : Mr. A.Acharjee, Adv.
For Respondent(s) : Mr. A.K.Pal, Adv.
Date of Hearing : 29.07.2021
Date of pronouncement : 06.08.2021
Whether fit for reporting: No.
JUDGMENT
Being aggrieved by and dissatisfied with the quantum of
compensation granted by the Motor Accident Claims Tribunal,
(Court No.1) Gomati Judicial District, Uadipur by award dated
20.06.2016 in T.S. (MAC) 04 of 2016, claimant Subrata Sarkar has
filed the present appeal under Section 173(1) of the Motor Vehicles
Act, 1988(MV Act, for short) seeking enhancement of the amount of
compensation awarded by the said Tribunal.
[2] Essential facts necessary for disposal of the appeal are
as under:
On 26.10.2014, claimant was going to Rajarbag from
Matabari area of Udaipur on his motor bike bearing registration
No.TR-03-D-6030. On the way at Canal Chowmuhani the offending
vehicle (mini bus) bearing registration No.TR-03-1348 on its way
from Agartala to Udaipur dashed against the motor bike of the
claimant. As a result, claimant slipped from his bike and received
multiple fracture and abrasion all over his body. He was immediately
taken to the nearby hospital from where he was referred to AGMC &
GBP hospital at Agartala for better treatment. He was treated as an
indoor patient in AGMC & GBP hospital from 26.10.2014 to
28.10.2014. After release from AGMC & GBP hospital claimant
visited several hospitals including Yashoda Hospital at Sekendrabad,
Rabindranath Tagore hospital in Kolkata and lastly he received
treatment at the ILS Hospitals at Agartala.
[3] Immediately, after the accident, his cousin brother
Sudip Mitra lodged a written FIR with the Officer in charge of the
R.K.Pur Police station alleging that the accident occurred due to
reckless driving of the offending vehicle. FIR of said Sudip Mitra
was registered as R.K.Pur P.S. Case No.247 of 2014 under Sections
MAC App. 16 of 2020
279 and 338, IPC and after investigation of the case, police
submitted charge sheet No.224 of 2014 dated 31.12.2014 against
accused driver Naresh Das for having committed offence punishable
under Sections 279, 338 and 427 IPC read with Section 144 of the
MV Act.
[4] Claimant filed petition under Section 166, MV Act at
the Tribunal claiming compensation of a sum of Rs.9,10,000/- under
various pecuniary and non-pecuniary heads. Owner of the offending
vehicle, its driver and the insurer were impleaded as respondents in
the said petition. The respondents appeared in the Tribunal and filed
separate written objections against the claim of the petitioner. In
their joint written statement filed by the driver and owner, driver
denied the charge of rash and negligent driving and pleaded that
accident occurred due to carelessness of the claimant who was on his
motor bike. Owner denied his responsibility with regard to payment
of compensation and pleaded that his vehicle was duly insured and
therefore, the insurance company was liable to pay compensation.
The owner further pleaded that driver had a valid driving license and
all documents of the vehicle including its registration, tax clearance
certificate, pollution certificate, permit etc. were in order and the
insurance policy was also current on the date of the occurrence. The
MAC App. 16 of 2020
insurance company pleaded that the liability of paying compensation
would arise only when it was proved that there was a valid insurance
policy on the date of occurrence.
[5] During trial, the Tribunal framed 3 issues. The first
issue was whether the accident occurred as a result of rash and
negligent driving. The next issue was whether the claimant was
entitled to any compensation and in case he was found entitled to
compensation, who would pay such compensation. The 3rd issue was
whether the petitioner was entitled to any other relief. Parties were
asked to lead evidence. The claimant adduced his oral evidence and
15 documents [Exbt.1 to Exbt.15] in support of his claim. Claimant
was cross examined on behalf of the respondents. But no separate
evidence was adduced on behalf of the respondents.
[6] The Tribunal examined the evidence of the claimant and
after considering the submissions of the counsel of the parties
awarded a sum of Rs.3,40,00/- to the claimant under the following
heads along with 6% annual interest thereon from the date of filing
of the claim till disbursement:
Sl.No. Head Amount
01 Medical including hospital charges Rs.1,89,964/-
02 Transportation charges including air Rs.53,949/-
fare
03 Miscellaneous expenses Rs.26,000/-
MAC App. 16 of 2020
04 Loss of income Rs.20,000/-
05 Pain and suffering Rs.50,000/-
Total Rs.3,39,913/-
Say Rs.3,40,000/-
[7] Aggrieved claimant has filed this appeal challenging the
said award mainly on the following grounds:
(i) Tribunal did not consider the extent of injuries and
consequential loss of income of the claimant.
(ii) Tribunal did not grant any compensation for loss of
future treatment of the claimant.
(iii) Tribunal assessed the monthly income of the claimant at
Rs.6000/- whereas he actually used to earn Rs.20,000/-
per month as a businessman. Medical expenses which
was awarded by the Tribunal was lesser than the
expenses actually incurred by the claimant.
[8] In the course of his argument Mr.A.Acharjee, counsel
of the applicant has contended that the Tribunal should have
considered the fact that the claimant suffered serious injuries which
had serious consequence on his life and occupation. Claimant had to
spend more amount of money than what has been granted by the
Tribunal for his treatment. Moreover, he will have to incur recurring
expenses for his future treatment. This apart, the hospital bills
produced by him also involve huge amount which has not been fully
reimbursed by the Tribunal. It is further contended by Mr. Acharjee,
learned counsel that the Tribunal did not also consider the fact that
MAC App. 16 of 2020
claimant was an established businessman whose monthly income
was not less than Rs.20,000/- . Tribunal has assessed his monthly
income at Rs.6000/- only which is less than the income of a day
labourer. It is contended by Mr.Acharjee, learned counsel that the
MV Act casts a duty on the Tribunal to arrive at a just and fair
compensation in motor accident claim cases so as to ensure that the
victim of road traffic accidents are appropriately compensated. In
support of his contention Mr.Acharjee, learned counsel has relied on
the decision of the Apex Court in Kajal vs. Jagdish Chand and Ors.
reported in (2020) 4 SCC 413. Learned counsel therefore, urges the
court to enhance the compensation payable to the claimant by
allowing this appeal.
[9] Mr. A.K.Pal, advocate appearing for the insurance
company on the other hand submits that the Tribunal has awarded a
reasonable, just and fair compensation to the claimant which does
not call for any interference in appeal. Learned counsel, therefore,
urges the court for dismissal of the appeal.
[10] The question which arises for consideration before this
court is whether the given circumstances require enhancement of the
amount of compensation awarded by the Tribunal.
MAC App. 16 of 2020
[11] Admittedly, immediately after the accident, the claimant
was shifted to hospital and he was treated as an indoor patient in
AGMC & GBP Hospital, Agartala where he was admitted as an
indoor patient on 26.10.2014 as per the discharge summary
certificate [Exbt.5]. Admittedly, claimant suffered no kind of
disability from the said accident. The Tribunal considered that the
claimant received treatment in various hospitals outside the state and
on the basis of the bills actually produced by the claimant, tribunal
granted compensation under the head of hospital charges and
medical expenses. Separate compensation for air journey has also
been granted by the Tribunal. I find no fault with the assessment of
the Tribunal with regard to the hospital charges, medical expenses
and transportation charges which have been granted on the basis of
documents actually submitted by the claimant.
[12] With regard to the income of the claimant, Tribunal
assessed his monthly income at Rs.6,000/- whereas the claimant
pleaded that he used to earn Rs.20,000/- as a businessman. The
Tribunal held that the claimant neither disclosed the nature of his
business nor he produced any documentary proof in support of his
claim that he was a businessman. Therefore, the Tribunal guessed
that as a day labourer, he would have earned Rs.200/- per day
MAC App. 16 of 2020
making a monthly income of Rs.6000/-. Tribunal held that he lost
such income for about 3 months during his confinement at home and
for travelling to various hospitals outside the state. On the basis of
such assumption, Tribunal awarded Rs.18,000/- for 3 months which
was rounded off to 20,000/- for loss of actual income. In my
considered view, compensation awarded by the Tribunal for loss of
income should be slightly raised. Admittedly claimant was 34 years
old at the time of the accident. At this age even as a day labourer he
would have earned more. It would be hardly possible to find out a
day labourer at the daily wages of Rs.200/-. Minimum wages would
be Rs.300/-. Presuming that he would get work for 25 days in a
month, his monthly income would be (Rs.300 x 25)=Rs.7500/-.
Therefore, for 3 months, his loss of income would be (Rs.7500/- x
3)=Rs.22,500/-.
[13] With regard to the injuries suffered by the claimant,
Tribunal recorded that in Yashoda hospital, Sekendrabad following
injuries were reported in the MRI report of the claimant:
"i) Posterior cruciate ligament: Reveals mid
segment and the tibial attachment complete tear
with rectracted torn fibres. Posterior aspect of the
joint shows fraying of the transver fibres associated
with minimal joint effusion.
ii) Anterior cruciate ligament shows partial
dysruption of fibres at the femoral attachment-
suggestive of intra substance tear.
MAC App. 16 of 2020
iii) Fluid noted along with poplitus tendon. iv)
Posterior horn of the medial meniscus show
evidence of partial tear. v) Posterolateral corner
ligament show mild laxity due to sprain."
[14] In view of the said injuries suffered by the claimant,
there is merit in the contention of the counsel of the appellant that
claimant would need further treatment and the Tribunal should have
awarded compensation for his future treatment. In the case of Kajal
Vs. Jagdish Chand and Ors(supra), the Apex Court has held that
while awarding compensation in motor accident claim cases one
factor which must be kept in mind while assessing the
compensation in a case like the present one is that the claim can be
awarded only once. The claimant cannot come back to court for
enhancement of award at a later stage praying that something
extra has been spent (italics supplied). In view of the injuries
suffered by the claimant and the principles of law laid down by the
Apex Court in the said judgment, it would be appropriate to award at
least Rs.80,000/- to the claimant for future medical treatment.
[15] It also appears that Tribunal has awarded only
Rs.50,000/- for pain and suffering of the claimant which should also
be raised. With a view to the injuries suffered by the claimant,
compensation for pain and suffering may be enhanced by at least
Rs.12,000/-. Therefore, an amount of Rs.62,000/- shall be an
appropriate amount of compensation for pain and suffering.
MAC App. 16 of 2020
Compensation awarded by the Tribunal for miscellaneous expenses
cannot be accepted. There cannot be any compensation under such
head. Rather, in view of the injuries suffered by the claimant, he
should have been awarded more compensation for loss of future
income particularly because the claimant who was in confinement at
hospitals and home for 03 months during the treatment without any
income required more time to regain full capacity of earning. The
extent of injuries suffered by him suggests that he would need at
least a year to regain full capacity of earning. Presuming that after 3
months of his confinement during treatment, he would be able to
work for 10 days in a month for at least next 9 months, he should
have been compensated for further loss of income for 15 days in a
month for next 9 months which comes to (Rs.4500/- x
9)=Rs.40,500/-. Therefore, claimant is awarded Rs.40,500/- for loss
of future income.
[16] In view of the above, the compensation awarded by the
Tribunal is enhanced and recomputed as under:
Sl.No. Head Amount
01 Medical including hospital charges Rs.1,89,964/-
02 Transportation charges including air fare Rs.53,949/-
03 Future medical treatment Rs.80,000/-
04 Loss of future income Rs.40,500/-
05 Loss of actual income Rs.22,500/-
06 Pain and suffering Rs.62,000/-
Total Rs.4,48,913/-
Say Rs.4,50,000/-
MAC App. 16 of 2020
[17] The appeal is thus partly allowed. Tribunal is directed
to deposit the entire amount of compensation awarded by this court
along with 6% annual interest from the date of filing till disbursement
to the claimant after making adjustments with the amount already
paid, if any, and the said amount after adjustment shall be deposited
with the Tribunal (MACT, Court No.1) at Udaipur within a period of
8 weeks from today for disbursement to the claimant appellant.
[18] In terms of the above, the appeal is disposed of. Interim
application(s), if any, shall also stand disposed of.
JUDGE
Saikat Sarma, PA
MAC App. 16 of 2020
