Tripura High Court
Sri Monaranjan Debbarma vs Manik Miah on 25 April, 2025
HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.36 of 2024
Sri Monaranjan Debbarma,
S/o. Lt. Sashi Kumar Debbarma,
Resident of Jagaibari,
P.S.-Bishramganj,
District- Sepahijala, Tripura.
---- Appellant(s)
Versus
1. Manik Miah,
S/o. Kader Miah,
Of Barjala,
P.S.-Bishramganj, District-Sepahijala.
[Owner of the offending Bolero Maxi Truck
bearing Registration No.TR01-X-1575]
Pin-799103
2. The Manager,
The Cholamandalam M/S General Insurance Company Limited,
Mantribari Road, Old RMS Chowmuhani, Agartala,
P.S.-West Agartala, District-West Tripura.
[Insurer of the offending Bolero Maxi Truck bearing registration
No.TR01-X-1575]
Pin-799001
----Respondent(s)
along with
CO(FA) No.10 of 2024
Cholamandalam MS General Insurance Company Ltd.
Represented by its Authorized Signatory,
1st Floor, Above 'W' Showroom,
Mantribari Road, Old RMS Chowmuhani,
P.S.-West Agartala,
District- West Tripura.
(Insurer of Vehicle bearing Registration No.TR-01AD-1834, Truck)
---- Cross-objector-Appellant
Versus
1. Sri Monoranjan Debbarma,
S/o. Lt. Sashi Kumar Debbarma,
Resident of Jagaibari,
P.S. Bishramganj,
District- Sepahijala
---- Claimant-Appellant-Respondent
Page 2 of 21
2. Manik Miah,
S/o. Kader Miah,
Resident of Barjala,
P.S.-Bishramganj, District-Sepahijala.
[Owner of the offending Bolero Maxi Truck
bearing Registration No.TR01-X1575]
----Owner-Respondent(s)
In MAC App. No.36 of 2024
For Appellant(s) : Mr. Saugat Datta, Adv.
For Respondent(s) : Mr. Rajib Saha, Adv,
Mr. Samrat Ghosh, Adv.
In CO(FA) No.10 of 2024
For Cross-objector(s) : Mr. Rajib Saha, Adv.
For Respondent(s) : Mr. Saugat Datta, Adv.
Date of hearing : 17.04.2025
Date of delivery of
Judgment & Order : 25.04.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
The appeal filed under Section 173 of MV Act is
preferred by the claimant as appellant and the cross-objection
filed by the OP-Insurance Company being cross-objector under
Order 41 Rule 22 read with Section 151 of CPC challenging the
judgment and award dated 21.02.2024 delivered by Learned
MAC Tribunal, Sepahijala District, Bishalgarh in connection with
case No.TS(MAC) No.4 of 2020 are taken up together for
hearing and decision.
2. Heard Learned Counsel, Mr. Saugat Datta appearing on
behalf of the appellant-claimant and also heard Learned
Page 3 of 21
Counsel, Mr. Rajib Saha appearing on behalf of the objector-
Insurance Company in both the appeal and the cross-objection.
3. At the time of hearing of appeal and cross-objection,
Learned Counsel for the claimant-appellant, Mr. Saugat Datta
rests his submission on limited grounds that in the award,
Learned Tribunal below determined an amount of Rs.35,000/-
in para No.15 i.e. Rs.10,000/- for purchase of medicines,
Rs.5,000/- for transportation charge and Rs.20,000/- for
nourishment and miscellaneous expenses. But at the time of
final calculation of the award, the said amount of Rs.35,000/-
was omitted from the calculated amount of Rs.55,46,520/-. So,
this amount of Rs.35,000/- needs to be added with the said
amount. Learned Counsel for the appellant-claimant again
drawn the attention of the Court that no interest has been paid
upon future medical expenses and Learned Counsel for the
appellant-claimant again submitted that the Learned Tribunal
below at the time of awarding of compensation has paid lesser
amount of compensation to the claimant ignoring the guidelines
laid down in the judgment of Hon'ble Supreme Court of India
reported in (2020) 4 SCC 413 in Kajal v. Jagdish Chand and
others. It was further submitted by the Learned Counsel for the
claimant that the Learned Tribunal below did not award any
amount towards loss of earnings during the period of treatment.
4. On the other hand, Learned Counsel for the Insurance
Company i.e. the objector, Mr. Rajib Saha in course of hearing
of argument fairly submitted that an amount of Rs.35,000/-
Page 4 of 21
which was awarded by the Tribunal at the time of delivery of
judgment may be added with the total amount of compensation
awarded but Learned Counsel further drawn the attention of the
Court that the Learned Tribunal below at the time of
determination of compensation wrongly determined the
disability of the injured victim to the extent of 100% when the
victim actually sustained 60% disability which was of temporary
in nature which needs to be modified. Learned Counsel further
drawn the attention of the Court that the amount calculated
towards attendant charges appears to be in higher side which
also needs to be modified for the sake of justice otherwise the
objector-Insurance Company would be prejudiced. Towards loss
of earning during the period of treatment, Learned Counsel for
the objector-Insurance Company submitted that since the
Learned Tribunal below awarded a sum of Rs.21,85,488/-
towards loss of earnings including future earnings, so, that
amount also covered under the said head. So, in view of the
principle of law laid down by the Hon'ble Apex Court in Kajal's
case(supra), the Learned Tribunal below rightly determined the
aforesaid amount. So, in summing up Learned Counsel for the
objector-Insurance Company urged for modification of the
award for the sake of justice to the extent as stated above.
5. Heard both the sides at length and perused the record
of the Learned Tribunal below. In the case at hand, the
appellant-claimant petitioner filed one claim petition before the
Learned Tribunal below alleging inter alia that on 11.08.2019
Page 5 of 21
when the son of the claimant Laisha Debbarma at about 1630
hours was standing at Jagaibari SB School near 1st gate in front
of the shop of one Amulya Debbarma that time one vehicle
bearing No.TR-01-X-1575 Bolero Maxi Truck came from the side
of Pramod Nagar Bazar towards Jagaibari with rash and
negligent manner dashed against the son of the claimant
petitioner for which he fell down on the road and sustained
grevious injury on his person. Immediately the victim was taken
to Bishramganj PHC by the local people from where he was
referred to AGMC & GBP Hospital, Agartala for better treatment
as his condition was alarming. The victim was admitted in the
Department of Ortho, Unit-II, AGMC & GBP Hospital on
11.08.2019 and discharged from the Hospital on 25.09.2019.
During admission in the Hospital, he was operated for fracture
femur and left leg bone fracture. Thereafter, the injured again
admitted into the same hospital on and from 19.10.2019 to
26.10.2019 as an indoor patient along with two attendants. It
was also alleged that the accident occurred due to rash and
negligent driving of the driver of the offending Bolero vehicle. It
was contended that the injured Laisha Debbarma was aged
about 4 years old at the time of accident and due to his
accident he sustained grievous injury on his person.
In the original claim, the OP No.1 being the owner of
the offending vehicle contested the same by filing written
statement denying the assertions of the claimant petitioner and
also submitted that he was the owner of the offending vehicle
Page 6 of 21
which was being driven by its driver having valid driving licence
and the vehicle was duly insured with the OP No.2 i.e. the
Insurance Company on the alleged date and time of accident.
The OP No.2 being the Insurance Company denied the
assertions of the claimant petitioner in the claim petition and
took the plea that the claimant petition was subjected to strict
proof by the claimant petitioner.
6. Upon the pleadings of the parties, Learned Tribunal
below framed the following issues:
i) Whether the case is maintainable?
ii) Whether claimant petitioner is entitled to
compensation due to permanent disablement and
multiple grievous injuries sustained by his minor
son namely Laisha Debbarma due to Road Traffic
Accident on 11.08.2019 at about 4:30 am at
Jagaibari under Bishramganj PS? If so,
iii) To what extent and he shall be liable to pay the
compensation?
7. To substantiate the issues, the appellant-claimant
petitioner and the OP-owner relied upon some documentary
evidence which were marked as Exhibits.
Name of the witness of the appellant-claimant petitioner:
1. PW-1: Monaranjan Debbarma
2. PW-2: Dr. Manik Jamatia
Exhibits of the appellant-claimant petitioner:
1. Exbt.1 series: Certified copy of FIR, ejahar,
seizure list and charge sheet filed in connection
with case No.2019BRG040.
2. Exbt.2: Copy of Discharge summary issued by
AGMC dated 25.09.2019 & 26.10.2019 (in 2
sheets).
3. Exbt.3 series: Some original prescriptions and
OPD tickets (in 5 sheets).
4. Exbt.4: Some original bills/cash memos of
Rs.5,901/- (in 17 sheets).
5. Exbt.5: 2 nos of bills of Pathological Laboratory
amounting to Rs.2000/-
6. Exbt.6: Original School Certificate of Laisha
Debbarma.
Page 7 of 21
7. Exbt.7: Copy of mark sheet of Laisha
Debbarma.
8. Exbt.8: Disability Certificate of Laisha
Debbarma dated 12.12.2022 along with
signature of PW-2 Dr. Manik Jamatia.
Name of the witness of the owner-respondent:
1. OPW-1: Manik Miah
Exhibits of the owner-respondent:
1. Exbt.A: Driving Licence of Rajib Debnath vide
D.L. No.TR0720140000604.
2. Exbt.B: Registration certificate of vehicle
bearing No.TR-01-X-1575 (Bolero Maxi Truck)
along with Fitness Cerificate dated 04.09.2018.
3. Exbt.C: Tax token and Pollution Certificate in 2
sheets.
4. Exbt.D: Copy of Insurance Certificate bearing
policy No.3379/02397210/000/00 (valid w.e.f.
30.05.2019 to 29.05.2020).
Finally, on conclusion of enquiry, the Learned Tribunal
below allowed the claim petition and passed the award and
fastened the liability of payment of compensation upon the
Insurance Company i.e. the objector herein as on the date of
alleged occurrence of accident, the offending vehicle was duly
insured with the objector-Insurance Company. The operative
portion of the judgment and award of the Learned Tribunal
below runs as follows:
ORDER
"22. In the result, the application under Section 166
of the M.V. Act, 1988 filed by the claimant, Sri
Monaranjan Debbarma is allowed on contest.
The minor victim Laisa Debbarma is entitled to a
sum of Rs.55,46,520/-.(Rupees Fifty five Lakhs
forty six thousand five hundred twenty) only as
compensation in this case.
O.P. No.2, the Cholamandalam M/S General
Insurance Co. Ltd. being insurer of the offending
vehicle bearing No.TR-01-X-1575 shall pay the said
amount of compensation to the claimant within a
period of 30(thirty) days from the date of award in
terms of Section 168(3) of the Act.
The amount of compensation shall carry interest @
7.5% per annum from the date of presentation of
the claim petition before the Tribunal on 01.02.2020
till realization as imposed by the Hon'ble Apex Court
in the Kajal case(Supra).
The O.P. insurance company shall give notice of the
deposit of the compensation amount to the claimant
and shall also file a compliance report with this
Tribunal within 15 days of the deposit.
The 80% of the whole amount shall be kept in a
fixed deposit in a nationalized Bank till attainment
of the victim at the age of 21 years and shall be
payable to the victim on his application after
completion of such age.
The interest payable on such amount shall be
released on quarterly basis to the father of the child
i.e. the claimant of this case which shall be spent for
paying the Attendants and for the care of the child
alone.
20% of the compensation amount shall be released
to the father of the minor victim i.e. the claimant of
this case instantly which shall be spent for the
purpose of treatment, education and well being of
the minor victim.
No fixed amount shall be released to the parents or
guardian of the child without prior permission of
this Tribunal. However, immature release may be
permitted by this Tribunal to meet special medical
expenses of the victim child on its satisfaction.
Supply a copy of the judgment to the claimant and
the O.P. No.2 free of cost.
The case stands disposed of on contest."
Challenging the said judgment and award, the
appellant-claimant petitioner has challenged the appeal for
enhancement of compensation/award and at the same time, the
objector-Insurance Company has filed the cross-objection for
modification.
8. I have perused the award of the Learned Tribunal
below. It appears that in determining the award, Learned
Tribunal below relied upon the judgment of Hon'ble Supreme
Court of India reported in (2011) 1 SCC 343 in Raj Kumar v.
Ajay Kumar and also relied upon the judgment of Hon'ble
Supreme Court of India in Kajal(supra). Further, it appears that
Learned Tribunal below in calculating the amount of
compensation under the head pecuniary damages awarded an
amount of Rs.35,000/- towards expenditure incurred for
purchasing of medicines, travelling charges and also for
nourishment and miscellaneous expenses. Learned Tribunal
below also in determining the compensation under the head
loss of earnings including future loss of income awarded an
amount of Rs.21,85,488/- which covers loss of earning during
the period of treatment. Learned Tribunal below further
awarded a sum of Rs.15,31,032/- towards attendant charges
relying upon the aforesaid judgment of kajal's case(supra) and
thereafter, Learned Tribunal below determined an amount of
Rs.5,00,000/- towards future medical expenses. Under the head
non-pecuniary damages(general damages), Learned Tribunal
below further awarded a sum of Rs.10,00,000/- towards pain,
suffering and loss of amenities and for loss of marriage
prospect, a further sum of Rs.3,00,000/- was awarded by the
Tribunal. Thus, a total sum of Rs.55,46,520/- was determined
by the Learned Tribunal below towards amount of compensation
to be awarded in favour of the appellant-claimant petitioner
with 7.5% interest.
9. Now, after hearing both the sides and also going
through the judgment and award of the Learned Tribunal below,
it appears to this Court that what was the observation of the
Hon'ble Supreme Court of India in Kajal's case reported in
(2020) 4 SCC 413. In para No.16 of the said judgment,
Hon'ble the Apex Court relied upon the judgment of Raj Kumar
v. Ajay Kumar reported in (2011) 1 SCC 343 which reads as
under:
"16. In Raj Kumar v. Ajay Kumar:(2011) 1
SCC 343, this Court laid down the heads
under which compensation is to be awarded
for personal injuries: (SCC p. 348, para 6)
"6. The heads under which compensation
is awarded in personal injury cases are
the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment,
hospitalisation, medicines,
transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains)
which the injured would have made
had he not been injured, comprising:
(a) Loss of earning during the
period of treatment;
(b) Loss of future earnings on
account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General
damages)
(iv) Damages for pain, suffering and
trauma as a consequence of the
injuries.
(v) Loss of amenities (and/or loss of
prospects of marriage).
(vi) Loss of expectation of life
(shortening of normal longevity).
In routine personal injury cases,
compensation will be awarded only under
heads (i), (ii)(a) and (iv). It is only in serious
cases of injury, where there is specific
medical evidence corroborating the evidence
of the claimant, that compensation will be
granted under any of the heads (ii)(b), (iii),
(v) and (vi) relating to loss of future earnings
on account of permanent disability, future
medical expenses, loss of amenities (and/or
loss of prospects of marriage) and loss of
expectation of life.""
Further, Hon'ble the Apex Court in para 20 discussed
about loss of earnings and para No.22 discussed about
attendant charges and in para No.26 discussed about pain,
suffering and loss of amenities and in para No.28 discussed
about loss of marriage prospects and in para No.29 discussed
about future medical treatment which are summarized as
under:
"Loss of earnings
20. Both the courts below have held that
since the girl was a young child of 12 years
only notional income of Rs 15,000 p.a. can be
taken into consideration. We do not think this
is a proper way of assessing the future loss of
income. This young girl after studying could
have worked and would have earned much
more than Rs 15,000 p.a. Each case has to be
decided on its own evidence but taking
notional income to be Rs 15,000 p.a. is not at
all justified. The appellant has placed before
us material to show that the minimum wages
payable to a skilled workman is Rs 4846 per
month. In our opinion, this would be the
minimum amount which she would have
earned on becoming a major. Adding 40% for
the future prospects, it works to be Rs
6784.40 per month i.e. 81,412.80 p.a.
Applying the multiplier of 18, it works out to
Rs 14,65,430.40, which is rounded off to Rs
14,66,000.
Attendant charges
22. The attendant charges have been
awarded by the High Court @ Rs 2500 per
month for 44 years, which works out to Rs
13,20,000. Unfortunately, this system is not a
proper system. Multiplier system is used to
balance out various factors. When
compensation is awarded in lump sum,
various factors are taken into consideration.
When compensation is paid in lump sum, this
Court has always followed the multiplier
system. The multiplier system should be
followed not only for determining the
compensation on account of loss of income
but also for determining the attendant
charges, etc. This system was recognised by
this Court in Gobald Motor Service Ltd. v.
R.M.K. Veluswami:AIR 1962 SC 1. The
multiplier system factors in the inflation rate,
the rate of interest payable on the lump sum
award, the longevity of the claimant, and also
other issues such as the uncertainties of life.
Out of all the various alternative methods, the
multiplier method has been recognised as the
most realistic and reasonable method. It
ensures better justice between the parties
and thus results in award of "just
compensation" within the meaning of the Act.
Pain, suffering and loss of amenities
26. Coming to the non-pecuniary damages
under the head of pain, suffering, loss of
amenities, the High Court has awarded this
girl only Rs 3,00,000. In Mallikarjun v.
National Insurance Co. Ltd.:(2014) 14 SCC
396, this Court while dealing with the issue of
award under this head held that it should be
at least Rs 6,00,000, if the disability is more
than 90%. As far as the present case is
concerned, in addition to the 100% physical
disability, the young girl is suffering from
severe incontinence, she is suffering from
severe hysteria and above all she is left with
a brain of a nine-month-old child. This is a
case where departure has to be made from
the normal rule and the pain and suffering
suffered by this child is such that no amount
of compensation can compensate.
Loss of marriage prospects
28. The Tribunal has awarded Rs 3,00,000 for
loss of marriage prospects. We see no reason
to interfere with this finding.
Future medical treatment
29. The claimant has been awarded only Rs
2,00,000 under this head. This amount is a
pittance. Keeping in view the nature of her
injuries and the fact that she is bedridden this
child is bound to suffer from a lot of medical
problems. True it is that there is no evidence
in this regard but there can hardly be such
evidence. She may require special mattress
which will have to be changed frequently. In
future as this girl grows, she may face many
other medical issues because of the injuries
suffered in the accident. Keeping in view her
young age and assuming she would live
another 50 to 60 years, it would not be unjust
to award her Rs 5,00,000 for future medical
expenses."
10. Now, for the sake of convenience, I would like to
discuss herein below the relevant synopsis of the evidence on
record of the appellant-claimant petitioner before the Learned
Tribunal below. The claimant petitioner filed examination-in-
chief by way of affidavit before the Learned Tribunal below
wherein he reiterated the contentions made in the claim petition
as PW-1 and he relied upon the documents which were marked
as Exbt.-1 series to Exbt.-8 as referred above. During cross-
examination by the OP-owner and the objector-Insurance
Company, nothing came out relevant save and except denial.
11. It is also necessary to mention here that in the
examination-in-chief by way of affidavit, the appellant-claimant
petitioner in para No.6, 7, 8 and 9 mentioned the following
facts:
"6) That, after discharge from hospital my
son was advised by the attending Doctor for
bed rest, review in Ortho OPD and plastic
surgery OPD and till filing this petition my son
was attended other Doctors also at Agartala
and also attend AGMC & GBP Hospital as OPD
by hired vehicle several times with attendant.
After filing the said case my son unable to do
play in normal life i.e. his childhood is totally
cripple till now and near future also as my
son suffered Locomotor Disability i.e.
WEAKNESS AND RESTRICTED MOVEMENT OF
LEFT LOWER LIMB FOLLOWING FRACTURE OF
LEFT FEMOR AND SHORTENING OF LEFT
LOWER LIMB. In this regard a Disability
Certificate vide No.TR0610620150032502
dated 12/12/2022 i.e. 60% (Sixty percent)
Temporary Disability has been issued against
my son and the said certificate shall be valid
till 12.12.2027.
7) That, It is pertinent to mention here that
every disability cause has depended upon the
nature of the job of the injured person, prior
to the accident my son was student and age
about 4 years old lad. After the accident my
son left leg both bone are totally fracture and
now he is unable to walk due to restricted
movement of left lower limb as he used to do
earlier and he will suffer such type of injury
for whole life and also unable to do any daily
based work for earning his livelihood in near
future also, so it is expected that in future my
son suffering from functional disability.
Due to the said accident my son cannot move
normally as he used to do earlier and it is
reasonably expected that more operation will
be required to correct the both bones of left
leg and now a days the cost of expenditure as
living and medical treatment is very high, it is
difficult to make a guess of the expenses
likely to be incurred in surgeries.
8) That, It is submitted that due to the
accident my son lost his confidence, suffering
from disability problems, conscious, confused,
afebrile & deprived of his enjoying free and
frequent life and also left sided hemi-paresis
and my son also become mentally
handicapped too being arises discomfort,
frustration, pain suffering and other physical
inconveniences.
9) That, Due to this road traffic accident my
son left leg both bone fractured and I could
not do any movement as he used to do earlier
and it is reasonably expected that after the
accident my son earning capacity totally
disable near future also and as a result pain,
suffering & mental agony become part of his
life and as such my son is required to be
compensated for the general as well as the
special losses and damages already suffered
and likely to be suffered."
12. Surprisingly, the contesting opposite parties-
respondents during cross-examination of the appellant totally
remained silent in respect of injuries and the subsequent
consequences facing by the victim due to the said accident.
13. Now, let us examine the evidence of PW-2, Dr. Manik
Jamatia. He deposed on oath that on 12.12.2022 he was
serving as a Locomotor Specialist in the District Disability
Board, West Tripura. On the day he physically examined the
patient Laisha Debbarma and found that it was a case of
Locomotor disability. After examination, it was found that there
were weakness and restricted movement of left lower limb
following fracture of left femur and shortening of left lower limb.
The disability was of 60% and temporary in nature and it was
recommended for five years with the validity till 12.12.2027.
With such observation, the disability certificate was issued by
him which was marked as Exbt.-8 in one sheet. He further
stated that the issuing authority was CMO, Sepahijala District,
Dr. Ranjan Biswas. He further stated that the disability suffering
by the patient is completely functional and it may prevent the
patient to join various services like Air Force, Navy, etc and
even he cannot perform his duty as a labourer also. He further
stated that due to such disability the patient suffered loss of
childhood pleasure and also prevented from functioning
naturally without assistance of others. Further he stated that
due to disability suffered by the patient/victim, lifelong
treatment may be required.
During cross-examination by the contesting parties,
nothing came out relevant save and except denial.
14. A co-ordinate bench of this High Court in a similar
nature of this case by a judgment dated 31.01.2020 in MAC
App. No.3 of 2019 was pleased to discuss about the
assessment of disability in dealing with a case under MAC
Tribunal in para No.8 to 10, this High Court observed as under:
"8. Secondly, I have come across all injury
certificates issued by the District Disability
Medical Boards which routinely suggest that
the validity of the injury certificate is for a
period of 5(five) years and that the injured
should appear before the Medical Board at the
end of the said term. There is no provision
under the Motor Vehicles Act, 1988 or the
Rules framed thereunder to assess the
disability of the injured for a fixed period and
to work out his loss of future income on such
basis. No decision of this Court or any other
Court is brought to my notice under which
such procedure is evolved. Such procedure
thus has no authority in law.
9. The complications and the injustice which
such procedure can lead, need to be
appreciated. Under the Motor Vehicles Act, a
claimant would file his claim petition in terms
of either Section 166 or 163A. On an
application for compensation filed under
Section 166 of the Motor Vehicles Act, the
Claims Tribunal would pass award under
Section 168 which requires determination of
the amount of compensation which appears
to the Tribunal to be just. Awarding just
compensation thus is central to any motor
accident claim case. Under Section 173 of the
Motor Vehicles Act, any person aggrieved by
the award of the Claims Tribunal could prefer
an appeal to the High Court. The filing and
awarding compensation for a motor accident
claim is thus a one time measure and is not
open to periodic revision. In a routine manner
thus if the Medical Board certifies the
disability of an injured for a fixed period, it is
difficult to see how after completion of the
said period of 5(five) years the claimant could
seek any redress for compensation for the
rest of the duration of his life. Take for
example, if a claimant whose disability has
been certified by the Medical Board for a
period of 5(five) years and on which basis, as
in the present case compensation is assessed
and awarded by the Claims Tribunal for loss
of income for a limited period, what would
happen if such injured revisits the Medical
Board at the end of said period of 5(five)
years and is certified that his disability is
permanent. His original claim petition would
have been decided assessing his loss of
income for a period of 5(five) years. He would
have no opportunity of filing a fresh claim
petition. This would result into a grave loss to
the claimant and would destroy the very basis
of awarding just compensation in a motor
accident claim case. Such practice, therefore,
must be stopped forthwith. It is, therefore,
provided that hereafter whenever a claimant
injured presents himself to the District
Medical Board for issuance of disability
certificate, the Medical Board shall certify
whether such disability if at all is permanent
or temporary. If it is assessed as temporary,
the period that such disability is likely in the
opinion of the Medical Board to last shall be
indicated. In any case, there shall be no
recommendation for revisiting the Medical
Board after completion of period of 5(five)
years by issuing certificate with limited
validity.
10. In the present case, since the claimant
was examined
by the Medical Board almost a year and a half
after the accident and the Medical Board still
found that he was suffering from 60%
physical disability, such disability must be
considered as permanent in nature. The
Claims Tribunal forced the doctor to opine on
what this physical disability would convert in
terms of functional disability. Ordinarily
Courts project a person's loss of earning
capacity in proportion to the permanent
disability suffered by him as a body as a
whole. This may not be the ideal way of
assessing possible loss of earning capacity,
nevertheless presents a better alternative
than any other readily available. However, the
Courts always make a distinction between
physical disability and functional disability
whenever the projection of physical disability
over the reduction in earning capacity of the
injured is dramatically different. For example,
if a painter by profession undergoes
amputation of his dominant hand, his
medically assessed physical disability may be
in the range of 40% or thereabouts whereas
on the premise that such person totally loses
his ability to generate income from his
original source, his functional disability is
taken at 100%. It is not necessary to refer to
large number of decisions on this point. In
this context, reference to a decision of
Supreme Court in case of Rekha Jain vrs.
National Insurance Company Limited and
others reported in (2013) 8 SCC 389 would be
sufficient."
Here in the given case according to the Medical
Officer of the disability Board, he examined the child victim
on 12.12.2022 i.e. almost after a period of 3(three) years
and after examination, he found that there was weakness
and restricted movement of left lower limb following fracture
of left femur and shortening of left lower limb and the disability
was of 60% and temporary in nature and it was recommended
for five years with the validity till 12.12.2027. This observation
of the concerned Medical Officer of the Disability Board, in my
considered view, was not proper in view of the observation
made by a co-ordinate Bench of this High Court in the
aforenoted case(supra).
15. So, considering the nature of injury sustained by the
victim and also the evidence of the doctor of the medical board,
it appears that the victim was suffering from incontinence and
meaning thereby, he does not have any control over her bodily
functions and with that disability, it would be difficult on his part
to lead a normal life in near future without the assistance of
support person i.e. attendant. The Learned Tribunal below at
the time of delivery of judgment/award came to the observation
that when the disability is continuing for years together it
cannot be considered as a temporary disability and applying the
ratio of the judgment of the High Court, the Learned Tribunal
below came to the observation that the disability suffered by
the child victim was permanent in nature and the functional
disability was 100%. So, in my considered view, the
observation of the Learned Tribunal below was justified and
there is no scope to interfere with the judgment of the Learned
Tribunal below in delivering the award. Furthermore, at the
time of alleged accident, the victim was aged about 4 years and
his condition was so critical that he is to remain non-functional
over the period of his life which also includes mental disability
and with that disability, it would be difficult on his part to
render job in various services like Air Force, Navy, etc in normal
parlance and also it would be difficult on her part to enjoy the
pleasures of normal life properly.
16. Situated thus, it appears that Learned Tribunal below
considering the nature of his injury rightly determined the
amount of compensation towards loss of earnings including
future earnings and the amount of Rs.21,85,488/- determined
by the Learned Tribunal below appears to be just and
reasonable. As such, I find no scope to interfere with the said
amount of award but since at the time of calculation of loss of
earnings, the Learned Tribunal below covered all the aspects
and determined the amount. So, in my considered view, no
amount is required to be awarded for loss of earning during the
period of treatment which the Learned Tribunal below rightly
considered and awarded in favour of the claimant, as such,
there is no scope to interfere with the said findings of the
Learned Tribunal below.
17. Towards attendant charges, Learned Tribunal below
based upon the notification dated 04.06.2019 issued by the
Government of Tripura determined the wages of a skilled labour
at the rate of Rs.7,227/- per month and relying upon the
principle of law laid down by the Hon'ble Apex Court in the
aforesaid case applied 18 multiplier and calculated
Rs.15,61,032/- towards cost of one attendant because without
the assistance of a support person i.e. attendant, it would be
difficult on the part of the victim to lead a normal life. Although
in the Kajal's case(supra), Hon'ble the Apex Court determined
the cost of two attendants for the support of the victim in that
case.
Here in this case, considering the nature of injury and
the evidence on record, in my considered view Learned Tribunal
below based upon the aforesaid judgment of the Hon'ble Apex
Court and also this High Court in MAC App. No.3 of 2019 dated
31.01.2020 rightly determined the amount of Rs.15,61,032/-
and I find no scope to interfere with the said award. So, the
submission of Learned Counsel for the objector-Insurance
Company cannot be accepted.
18. Towards non-pecuniary damages, Learned Tribunal
below awarded Rs.10,00,000/- for pain, suffering and loss of
amenities and Rs.3,00,000/- for loss of marriage prospects in
view of principle of law laid down by the Hon'ble Apex Court in
Kajal's case(supra) and in my considered view, Learned
Tribunal below also rightly awarded the said amount of
compensation to the claimant.
19. As, in course of hearing of argument, excepting the
amount of Rs.35,000/- which was found to be missing in the
final amount of calculation, no other points were raised by
Learned Counsel for the appellant-claimant towards the award
granted under different heads. So, after careful consideration of
the submission made by Learned Counsel for the appellant and
the cross-objector, it appears to this Court that there was no
infirmity or irregularity in the judgment delivered by Learned
Tribunal below in connection with case No.TS(MAC) No.4 of
2020 dated 21.02.2024 excepting the amount of Rs.35,000/-,
which has been deleted by mistake from the total amount of
compensation. So the said amount of Rs.35,000/- needs to be
added with the total amount of compensation of Rs.55,46,520/-
20. In the result, the appeal filed by the appellant-claimant
petitioner is partly modified and the cross-objection filed by the
respondent-Insurance Company deserves no consideration and
the same is accordingly dismissed. The appellant-claimant
petitioner is entitled to total amount of compensation of
(Rs.55,46,520/-+Rs.35,000/-)=Rs.55,81,520/-, which was
wrongly deleted, from the respondent-Insurance Company i.e.
the objector with 7.5% as awarded by the Learned Tribunal
below from the date of presentation of the claim petition before
the Learned Tribunal below i.e. on 01.02.2020 to till realization
as imposed by the Hon'ble Apex Court in Kajal's case(supra).
No separate order is passed towards disbursal of the amount of
compensation as the same has already been decided by the
Learned Tribunal below in the judgment and award delivered in
connection with case No.TS(MAC) No.4 of 2020 dated
21.02.2024. The objector-Insurance Company be asked to
deposit the total amount of compensation awarded by this
judgment/award to the Registry of the High Court within a
period of 6(six) weeks from the date of passing of judgment
/award.
With this observation, the appeal and the cross-
objection are accordingly disposed of.
Send down the LCR along with a copy of this
judgment/award.
A copy of this judgment be furnished free of cost to the
Learned Counsel for the appellant-claimant and also to the
Learned Counsel for the objector-Insurance Company for
information and compliance.
Pending application(s), if any, also stands disposed of.
JUDGE
MOUMITA MOUMITA DATTA
DATTA -07'00'
Deepshikha
