Sri Pradip Kumar Dey vs Sri Biswanath Sen
2021 Latest Caselaw 25 Tri

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                     HIGH COURT OF TRIPURA
                           AGARTALA
                            MAC APP 76 OF 2017

Sri Pradip Kumar Dey,
S/o Sri Rash Mohan Dey of Krishnanagar (near Haradhan Sangha),
Agartala, West Tripura.
                                                        ---- Appellant.
                               Versus
   1. Sri Biswanath Sen,
      S/o Late Prafulla Ch. Sen of village-Panisagar,
      P.O & P.S. Panisagar, Dharmanagar,
      North Tripura, PIN-799260.
      (Owner of TR 02A-9787, Star City Bike).

   2. The Branch Manager,
      The United India Insurance Co. Ltd.,
      Office Road, Dharmanagar, North Tripura,
      PIN-799250.
                                                           ---Respondents.

For Appellant(s) : Mrs. S. Deb (Gupta), Advocate. For Respondent-

Insurance Company : Mr. A. Gan Chaudhury, Advocate.

Date of hearing &
delivery of Judgment and order : 06.01.2021

Whether fit for reporting         : No

             HON'BLE MR JUSTICE ARINDAM LODH

                       Judgment & Order (Oral)

The instant appeal is directed against the Judgment and award

dated 26.07.2017, passed by the learned Motor Accident Claims Tribunal Page - 2 of 8

(Court No.2), Agartala, West Tripura in connection with TS (MAC) 249 of

2012, for enhancement of the compensation.

2. Heard Mrs. S. Deb(Gupta), learned counsel appearing for the

claimant-appellant. Also heard Mr. A. Gan Chaudhury, learned counsel

appearing for the insurance company, the respondent No.2.

3. The brief facts are that the appellant herein filed an

application under Section 166 of the Motor Vehicles Act,1988 [for short

MV Act] claiming compensation to the tune of Rs.73,00,000/- for his

disability out of the accident occurred on 04.11.2011 on Agartala-Airport

road due to rash and negligent driving of the motor cycle bearing

registration No.TR03-A-4923. It is stated in the claim application that the

claimant-appellant was travelling through the said motor cycle as a pillion

rider at that time another motor cycle bearing registration No. TR02-A-

9787 coming from the same direction at an abnormal speed dashed the

motor cycle in which the claimant was travelling. Due to the said accident

the appellant had suffered severe injuries on various parts of his body more

particularly, in his left leg and became unconscious. He was taken to

AGMC and GBP Hospital, Agartala where he was treated for few days and

considering his precarious condition he was air-dashed to SSKM/AMRI Page - 3 of 8

Hospital, Kolkata on reference. He got admitted to Apollo Gleneagles

Hospital, Kolkata for specialized treatment. He underwent major surgery.

Steel plates were inserted in his left proximal tibia and in course of

treatment he had to incur huge expenditure. The bills and vouchers were

produced before the learned Tribunal in course of trial. He also produced

disability certificate issued by the competent authority of the AGMC and

GBP Hospital. The owner of the offending vehicle as well as the insurance

company had contested the claim application. The insurance company did

not adduce evidence.

4. Having considered all material evidence and relevant facts,

the learned tribunal had awarded a sum of Rs.05,01,448/- as compensation

in favour of the claimant-appellant.

5. Being aggrieved by and dis-satisfied with the said award the

present appeal has been preferred by the claimant for enhancement of the

award.

6. Mrs. Deb(Gupta), learned counsel appearing for the appellant

has preferred to confine her submissions within the following points:-

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(i) Exbt.15 i.e. the advisory note issued by the Apollo

Gleneagles Hospital to the effect that the claimant was required to undergo

another surgery to remove the plates and screws implanted in his leg in

course of treatment wherein the estimated cost also was mentioned. The

cost to be incurred is estimated to the tune of Rs.1,66,300/-[approx.] was

not considered by the learned Tribunal.

(ii) The claimant-appellant had adduced evidence that he was

allowed to receive only half pay leave and for that reason, the claimant-

appellant is entitled to encash the remaining half pay out of his salary

during the period of his treatment i.e. for 176 days.

(iii) The claimant-appellant was further entitled to

compensation for loss of future income even after his retirement.

In support of loss of future income even after the retirement,

Mrs. S. Deb(Gupta), learned counsel appearing for the claimant-appellant

has relied upon the decision of this Court rendered in National Insurance

Company Ltd. Vrs. Sabita Biswas, reported in (2015) 1 TLR 574.

7. On the other hand, Mr. Gan Chaudhury, learned counsel

appearing for the insurance company has submitted that learned Tribunal Page - 5 of 8

had considered extent of loss of income of the claimant-appellant. He has

drawn my attention to the findings of the learned Tribunal wherein the

learned Tribunal considered the disability certificate of the claimant-

appellant and quantified the loss of future earnings.

8. Mr. Gan Chaudhury, learned counsel for the insurance

company has particularly drawn my attention to the observation made by

the learned Tribunal to the effect that there is no evidence to show that due

to 40% physical disability suffered by him in his left Proximal Tibia and

left knee of upper leg, he is not in a position to earn any amount for his

livelihood or he has totally lost his earning capacity.

9. In the backdrop of facts, I have considered the submissions

advanced by the learned counsels appearing for the parties to the lis.

Firstly, I have given my due consideration to the findings of the learned

Tribunal to the effect that there is no evidence to show the extent of

functional disability suffered by the claimant-appellant. To award just and

reasonable compensation in favour of a person who suffers accident and

either lost his life or becomes permanently disabled or suffers severe injury

to his/her person, the court has to decide the facts and circumstances of

eash case. Motor Vehicles Act is public welfare legislation. A person who Page - 6 of 8

suffers locomotive disability can be said to have suffered a lot and it can

easily be inferred that his normal movement has been impaired due to such

disability. True it is, in the instant case, in the certificate there is no column

indicating the extent of functional disability suffered by a person out of an

accident. The insurance company in the instant case did not adduce any

evidence that the claimant did not suffer any functional disability. In his

evidence the claimant-appellant as PW-1, has specifically stated that his

normal movement has been permanently impaired.

10. A Co-ordinate Bench of this Court in the case of Sabita

Biswas (Supra) has held that-

"29. Having held so, the fact remains that after 5 years, the claimant would have retired from service and after retirement if he was an able bodied man, he could have done some work at least. He could have even worked as a manual labourer if nothing else and, therefore, from the age of 58 years onwards he would be entitled to some compensation but this compensation is not relatable to the salary which he was drawing but with regard to the wages which he could have earned at the time of his retirement. Taking a conservative view of the matter, the claimant would have earned at least Rs.5,000/- per month and his disability is 100% as far as his earning capacity is concerned. Therefore, the disability is assessed at Rs.60,000/- per year and multiplier of 9 is applicable which means compensation on loss of income comes to Rs.5,40,000."

11. Keeping in mind the above principle laid down by this Court,

I am of the considered view that the appellant could have earned at least Page - 7 of 8

Rs.5000/- per month as a daily labourer even after his retirement. At the

time of accident the claimant-appellant was aged 56 years, so, multiplier

will be 9 under the second schedule of the MV Act. In the instant case, the

disability certificate shows that the claimant-appellant has suffered

disability to the extent of 40%. Hence, for the 40% disability, the actual

loss of his yearly earning comes to Rs. 60,000/- X 40%= Rs.24,000/-. Now

multiplying with 9, it comes to Rs.24,000 X 9 = Rs.2,16,000/-. Thus, the

claimant is entitled to get Rs.2,16,000/- for the loss of his future income.

12. Secondly, the claimant-appellant has been allowed to go on

half pay leave during his treatment for 176 days, so he has been deprived

of half pay of his salary for those 176 days. In my opinion, the claimant-

appellant is entitled to the encashment of half of his salary during those

days and it is assessed at Rs.1,65,000/- against half pay leave encashment.

13. Thirdly, I agree with the submission of the learned counsel

appearing for the appellant that Exbt.15, the certificate issued by the

Apollo Gleneagles Hospital for future expenditure which has to be

incurred by the claimant-appellant. The estimated cost according to the

said Hospital is Rs.1,66,300 (approx.). So, the claimant-appellant is also

entitled to get this amount to meet the future expenditure.

Page - 8 of 8

14. Accordingly, the award is enhanced, and the compensation on

the aforesaid heads works out at Rs. Rs.2,16,000/-+Rs.1,65,000/-

+Rs.1,66,300/- =Rs.5,47,300/-. I do not find any reason to interfere with

the other aspects of the judgment passed by the learned Tribunal.

15. The appeal is allowed to the extent as indicated above.

16. The said enhanced amount of Rs.5,47,300/-(Rupees five lakhs

forty seven thousand three hundred) shall be paid to the claimant-appellant

within a period of 3(three) months from the date of receipt of the copy of

this judgment along with interest @ 7.5% per annum from the date of

filing of the claim application.

The Insurance Company shall deposit the aforesaid enhanced

compensation to the learned Tribunal

17. The appeal accordingly stands disposed of.

18. Send back the L.C. records along with a copy of this

judgment.

JUDGE