Smt. Surabala Reang vs Sri Amal Majumder
2022 Latest Caselaw 724 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                      MAC APP NO.26 OF 2022

   Smt. Surabala Reang,
   W/o- Sri Surendra Kumar Reang,
   Of Vill-Laxmi Charra,
   P.O.-Laxmi Charra,
   P.S.-Baikhora,
   District-South Tripura.

                                           ......... Appellant
                            (Original Claimant-Petitioner)

                      Vs.

   1. Sri Amal Majumder,
   S/o- Lt. S.B. Majumder of Santirbazar,
   P.S.-Santirbazar, District-South Tripura.
   (Owner of the vehicle No.TR-01-4148, Commander Jeep)

   2. The Divisional Manager,
   National Insurance Company Limited,
   Akhaura Road, Agartala,
   P.O.- Agartala, P.S. West Agartala,
   District-West Tripura.
   (Insurer of the vehicle No.TR-01-4148, Commander Jeep)

                                            ........Respondents

(Original Opposite Parties)

For the Appellant(s) : Mr. A. Nandi, Advocate

For the Respondent(s) : Mr. A.K. Deb, Advocate.

Date of hearing             : 29.07.2022

Date of delivery of
Judgment & Order            : 02/08/2022.

Whether fit for reporting : NO.





       HON'BLE MR. JUSTICE T. AMARNATH GOUD

                   JUDGMENT AND ORDER

This present appeal has been filed under Section

173(1) of M.V. Act, 1988 for setting aside as well as for

modification of the award dated 20.04.2021 in Case No.

T.S.(MAC)59 of 2014 passed by the Motor Accident Claims

Tribunal, Court No.2, West Tripura Agartala preferred by the

claimant-appellant herein.

2) The facts of the case in brief, which may be relevant

for the present purpose and manifest on the record are that on

16.12.2013 at about 6.30 P.M. the claimant-appellant along

with others were proceeding from Nagrai Bazar towards her

house at Laxmicherra by boarding one vehicle, bearing

registration No.TR-01-4148 (Commander Jeep) hereinafter

referred to as the offending vehicle. The said vehicle when

reached at Kashipada Colony of village-Korma, the driver lost

his control and met with an accident resulting which the

claimant-appellant along with others received grievous injuries

on their person. The claimant-appellant sustained compound

fracture on her body. Immediately after the accident, the

claimant-appellant was brought to Amarpur Hospital in an

unconscious condition where from she was referred to Tripura

Sundari District Hospital, Udaipur for her treatment. But

considering her serious condition doctors again referred her to

AGMC & GBP Hospital, Agartala. There she was treated as an

indoor patient for about eighteen days w.e.f. 16.12.2013 to

23.12.2013. As her condition was deteriorating she was

referred to CMC, Vellore. On 23.12.2013 claimant was brought

to Chennai with an escort by a doctor and she was admitted to

the Apollo Hospital in the Department of Orthopedics. She got

treated there as an indoor patient w.e.f. 23.12.2013 to

25.01.2014. The claimant appellant spent Rs. 12,50,000/- for

her treatment. In this connection, a specific case vide Birganj

PS case No. 138/2013, u/s 279/338 was also registered.

3) The claimant-appellant instituted a claim petition for

granting compensation claiming Rs.49,48,000/-. The claimant-

appellant claimed to be a permanent vegetable seller, aged

about 36 years. In her claim petition, she impleaded the

registered owner and insurer of the offending vehicle as

mentioned above before the Motor Accident Claims Tribunal

which was registered as T.S. (MAC)59 OF 2014.

4) The adjudication of case No. T.S.(MAC) No.59 of 2014

was done by Member, MACT No.1, West Tripura, Agartala with

an award amounting to Rs.12,54,818/- dated 12.01.2018.

5). Dissatisfied thereby, the claimant-appellant preferred

an appeal before this Court against the said impugned

judgment dated 12.01.2018. The said appeal was registered as

MAC APP No.42 of 2018.

6) On 15.03.2019, the said MAC APP No.42 of 2018 was

considered, and after hearing the parties vide judgment dated

12.01.2018, the impugned award dated 12.01.2018 passed in

T.S.(MAC)59 of 2014 was set aside and remanded back on the

following terms:-

"(a) Impugned award dated 12.01.2018 passed by learned Member, Motor Accident Claims Tribunal No.1, West Tripura, Agartala in case No. Title Suit(MAC) 59 of 2014, titled as Smt. Surabala Reang vs. Shri Amal Majumder & another is quashed and set aside and the matter is remanded back to the Tribunal for consideration afresh;

(b) Parties undertake to appear before the Tribunal on 8th April, 2019, on which date, the respondents shall file their objection to the claim petition;

(c) A date shall be fixed by the Tribunal enabling the claimant to file response thereto and lead evidence, if so required and desired;

(d) Not more than three opportunities shall be afforded to each one of the parties for such purpose;

(e) A date shall be fixed by the Tribunal enabling the parties to lead their respective evidence, if so required and desired;

(f) Parties undertake to fully cooperate and not take any unnecessary adjournments;

(g) Save and except, for official witnesses, at their own cost and responsibility, parties shall produce their entire evidence on such date as may be fixed by the Tribunal;

(h) Hearing is expedited and it is expected of the Tribunal to decide the matter within a period of six months from the date of receipt of the order;

(i) Liberty is reserved to the parties to place on record original documents before the Tribunal;

(j) Original documents, if any, filed here be returned to the Tribunal;

(k) The Registry is directed to „forthwith‟ remit the records to the Tribunal. Also send a copy of the order to the Tribunal.

(l) This Court has not expressed any opinion on merits of the case;

(m) All issues are left open."

7) After the case was remanded back, the case was

finally concluded by a judgment dated 20.04.2021 in the

following manner:-

"Claimant petitioner is entitled to get the award of Rs. 16,60,000/-(Rupees sixteen lacs sixty thousand) only with 9% Simple interest per annum from the date of registration of claim i.e, w.e.f. 12.02.2014 till the date of realization thereof.

The OP No. 2, National Insurance Company Limited shall, within 30 days of the date of this award, deposit the entire amount as awarded, in favour of the Motor Accident Claims Tribunal, West Tripura, Agartala."

8) Being aggrieved and dissatisfied with the award dated

20.04.2021, the claimant-appellant has preferred this appeal

and prayed for the following reliefs:-

" i) Admit this appeal.

ii) Call for the records.

iii) Issue notice in the name of the respondents.

iv. Pass necessary order granting the condonation of delay for 245 days.

v. After hearing pass necessary order of set aside the modification of award dated 20.04.2021 to the extent of appeal value Rs.32,88,000/- afresh with interest

@9% from the date of presentation of original claim petition as on 12.02.2014 till realization of payment.

vi. Pass necessary order after considering the proper appreciation of evidence of both oral and documentary in nature.

vii. Pass any other order/order as your lordship would deem fit and proper."

9) It is the case of the claimant-appellant that the

present appeal is filed against the order passed by the learned

Claims Tribunal in awarding Rs. 16,60,000/- as against his claim

for Rs.49,48,000/-. Earlier the awarded amount was

Rs.12,54,818/-, and subsequently, when the matter was re-

examined the same has been enhanced to Rs. 16,60,000/-.

10) The main contention of the claimant-appellant is

that due to the accident the claimant-appellant has sustained

injuries and the Doctors have given a disability certificate to the

extent of 60% and the same is valid up to 2025. Since the

disability has not been considered by the learned Claims

Tribunal, a lump sum amount of Rs. 3,00,000/- has been

awarded. The claimant-appellant is before this court seeking

enhancement

11) Mr. A. Nandi, learned counsel appearing for the

claimant-appellant herein submits that the learned Claims

Tribunal has failed to consider the future loss of income to the

extent of 30% as per Apex Court citation. Mr. Nandi, learned

counsel further submitted that the claimant-appellant is entitled

to loss of income to the extent of 100% more particularly when

her disability stood stagnant at 60% even after the expiry of 9

years from the date of the accident. Learned counsel further

submitted that the learned Claims Tribunal has failed to apply

his mind in awarding compensation on the head of pain, shock

and suffering; factors to be considered, prolonged

hospitalization-the grievous injury sustained; the operation

underwent and the consequent pain, discomfort, and suffering

towards the calculation of ward.

In support of his contention, Mr. Nandi, learned counsel

referred to the judgment of this High Court passed on

24.01.2020 titled as Smt. Pinky Roy Vs. Smt. Lekha Roy

and ors. Learned counsel also pressed in support of his

contention, the judgment of this High Court passed in Shri

Samir Dhar Vs. Sri Anjan Roy and anr., passed on

18.07.2019.

12) Mr. A.K. Deb, learned counsel appearing for

respondent No.2, Insurance Company countering the said

argument submitted that the instant case herein is not a case of

permanent disability but it is a case of temporary disability. Mr.

Deb, learned counsel referring to the judgment of the Apex

Court passed in Raj Kumar Vs. Ajay Kumar and anr., dated

18.10.2010 reported in (2011) 1 SCC 343 submitted that in

case of permanent disability, future loss of income can be

allowed, but, if it is held that there is no permanent disability

then there is no question of proceeding further and determining

the loss of future earning capacity. Mr. Deb, learned counsel

further submitted that the claimant-appellant stated that her

monthly income was Rs.12,000/- from her vegetable business

and poultry farm but in support of that she failed to adduce any

corroborative evidence. So, the learned Tribunal has rightly

assessed the income of the claimant-appellant as Rs.5,000/- per

month. Learned counsel further submitted that regarding the

disability certificate, the doctor has nowhere started that it is a

permanent disability. Mr. Deb, learned counsel further

submitted that in the first disability certificate dated 15.12.2014

it is shown as 60% disability and there is no suggestion for

reassessment or review and it is likely to be improved. He

further submitted that no discharge certificate has been

annexed. Learned counsel argued that the disability certificate

dated 02.03.2020 is doubtful as in the disability certificate dated

15.12.2014, there is no suggestion for reassessment or review.

He further submitted that the learned Claims Tribunal though

did not consider the permanent certificate but gave a lump sum

amount of Rs.3,00,000/- in favour of the claimant-appellant.

Learned counsel further submitted that 60% disability could not

be considered as 100% disability and the same is not supported

by the deposition of the doctor. Stating thus, learned counsel

urged this Court to uphold the judgment passed by the learned

claims tribunal.

13)           Heard both sides.

14)           After hearing both the parties and perusing the

evidence on record this Court feels that the injuries suffered by

the claimant-appellant herein are temporary in nature and it not

permanent. The learned Claims Tribunal below has awarded

Rs.3,00,000/- towards the effect of injuries on the work

capability of the claimant-appellant herein and the same is

appropriate in nature. No doubt, it is beneficial legislation and

the claimant-appellant herein needs to be considered for fair

compensation. But, at the same time it cannot be a bonanza

and the respondent insurance company cannot be penalized

with an exorbitant amount in favour of the claimant-appellant.

Further, in the first disability certificate dated 15.12.2014, the

disability of the claimant-appellant herein is assessed for 5(five)

years period as 60% which is likely to be improved. In that

disability certificate, the issuing authority has not given any

suggestion for review or reassessment. So the second disability

certificate dated 02.03.2020 cannot be considered.

15) The judgment relied by the learned counsel

appearing for the appellant are not relevant to the facts of the

case as the judgments referred pertains to cases where no

compensation was awarded for disability, more so in the matter

of permanent disability. But in the case of claimant-appellant

herein, it is only a temporary disability and the work of

petitioner of selling vegetable for some time was expected to

suffer and thus Rs.3,00,000/- has been awarded towards

compensation. Thus, this Court feels that adequately the issue

of disability has been considered by the Tribunal.

16) Thus, this Court is of the view that the award

dated 20.04.2021 passed by the Member Motor Accident Claims

Tribunal is just and proper and the same is not interfered with.

17) With the above observation and direction, this

instant appeal stands dismissed and the award dated

20.04.2021 passed in Case No.T.S.(MAC)59 of 2014 stands

affirmed. Consequently, pending application(s), if any, stands

closed.

JUDGE

suhanjit