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1997 DIGILAW 172 (GAU)

Managing Director, ASTC v. Nareswar Dutta

1997-08-29

M.RAMAKRISHNA, P.C.PHUKAN

body1997
M. Ramakrishna, C.J.— This appeal is presented by the Managing Director of the Assam State Transport Corporation (ASTC in short), Paltanbazar, Guwahati, questioning the judgment and award made by the Member, Motor Accident Claims Tribunal (MACT), Kamrup, Guwahati, in MAC Case No. 150(K) of 1993, awarding a total compensation of Rs. 6,00,000/- (Rupees six lakhs) only, with interest at the rate of 12% per annum from the date of filing of the claim petition till the decree is complied with. 2. The appellant has taken a number of grounds to attack the award, particularly : (i) The Tribunal a sum of Rs. 1,00,000/- towards expenditure incurred by the claimant for his treatment in the hospital; (ii) A sum of Rs. 1,00.000/- awarded under the head "Mental shock, suffering, agony and physical pain" on the ground that this award is not proper; (iii) The appellant has also questioned the awarding of Rs. 1,00,000/- towards compensation by way of expenditure for future treatment and also a sum of Rs.2,00.000/- awarded to the claimant under the head 'permanent loss of income avenues'. 3. The few facts which are necessary for the disposal of the appeal are as follows : Shri Nareswar Dutta, the respondent herein, at the relevant point of time, was working as Judicial Magistrate, 1st Class, under the Assam State Judicial Service and was functioning as such at Sibsagar. On 12th April, 1991, he boarded the bus bearing registration No.AS-20 0128, at Sibsagar travelling to his home town, Guwahati. The bus was being driven by Shri Niranjan Deka. respondent No.2 in the claim petition, though his name is omitted to be impleaded as a necessary party in the appeal. It is alleged that on account of rash and negligent driving by the bus driver, the bus went and dashed against an wayside standing tree resulting in serious accident to the claimant. The injured/claimant was taken to the hospital at Jorhat and ultimately, he was advised to go to Christian Medical College Hospital, Vellore. He took treatment in the said hospital as in patient from 23.8.91 to 21st April 1992. It is stated that the claimant is still receiving treatment at the hands of the Medical Officer of the Christian Medical College Hospital (CMC), Vellore. 4. The claimant filed a petition before the MACT, Kamrup, seeking compensation of Rs. 10,00,000/- (Rupees ten lakhs) on various grounds including loss of pay and promotion. It is stated that the claimant is still receiving treatment at the hands of the Medical Officer of the Christian Medical College Hospital (CMC), Vellore. 4. The claimant filed a petition before the MACT, Kamrup, seeking compensation of Rs. 10,00,000/- (Rupees ten lakhs) on various grounds including loss of pay and promotion. This claim petition was opposed by the appellant by filing objection in writing. 5. In the course of the written statement presented by way of objection, the appellant has taken a specific stand that although the bus in question was being driven at a normal speed, on account of a truck coming in the opposite direction with high speed, the major portion of the road on the right hand to the driver was occupied by that truck coming in the opposite direction, by reason of which the bus driver had to take a deviation to the left side resulting in the bus dashing against the tree on the left side. But in the evidence, this version was given a go by the appellant and no evidence was led in on this plea that on account of the truck coming in the opposite direction with a high speed, the accident was caused. 6. Considering the pleadings in the claim petition, though the learned Member of the Tribunal has not raised necessary issues by way of points for consideration in the case, nonetheless, he has referred to the evidence on record, both oral and documentary, and recorded appropriate* findings on all the important aspects. 7. We will presently consider the findings of the learned Member of MACT, Kamrup. 8. On behalf of the claimant, seven witnesses were examined including himself. The claimant has spoken about the fact that at the relevant point of time when the bus dashed against the tree, he was asleep. But immediately thereafter, on account of the impact of the accident on him, he fell and he was seriously injured. That his e for-limbs were not functioning properly He has also spoken about the treatment received at the CMC Hospital, Vellore, and the expenditure involved including the loss of pay, etc. 9. One Mr. Jitendra Nath Kalita, an witness examined in support of the claimant who is the District & Sessions Judge, Dhemaji, has spoken about the fact that he had been accompanying the claimant while travelling from Sibsagar to Guwahati. Dr. 9. One Mr. Jitendra Nath Kalita, an witness examined in support of the claimant who is the District & Sessions Judge, Dhemaji, has spoken about the fact that he had been accompanying the claimant while travelling from Sibsagar to Guwahati. Dr. Zakir Hussain, a Neuro-Surgeon who treated the claimant, has deposed as to the number of injuries found on the person of the claimant and the diagnosis he has made. According to him. there was a fracture at C5 with partial dislocation at C 5-6 with total Neurological Deficit. Referring to the clinical details, the Doctor has spoken that the patient has lost total neurological function of all the four limbs. When he examined the injured/claimant on 14.4.91, he found the Anterior Cervical Discoidectomy C 5-6 with reduction and fusion and the patient was referred to the CMC Hospital, Vellore. 10. According to the Doctor's analysis and estimation, there had been total incapacity in all the four limbs of the claimant. Physically, he had been able to move these limbs. 11. The opinion furnished by the Doctor attending on the claimant at the CMC Hospital disclose that the patient had Quadruplegia (Paralysis of the four limbs) and it is a permanent disability. 12. Referring to the medical evidence, both oral and documentary, the learned Member, MACT, pointed out that the medical opinion furnished by the Doctors both at Guwahati and at Vellore, has not been called in question by the opposite party. 13. Referring to the evidence adduced by the claimant, it is stated that he is corroborated as to the injuries sustained by him with the evidence of the Doctors and also its nature. He has stated that he was an indoor patient for eight months at Vellore. 14. One Mr. Jagdish Adhikary, another witness, has deposed before the Tribunal that he accompanied the claimant to Vellore and stayed there with the patient during the treatment in the CMC Hospital. 15. Mr. Deba Chetri, ASI of Police, another witness, has deposed before the Tribunal that he went to the scene of occurrence and arrested the driver of the bus and on completion of the investigation, he has filed the charge sheet before the Court having jurisdiction. 16. Mr. 15. Mr. Deba Chetri, ASI of Police, another witness, has deposed before the Tribunal that he went to the scene of occurrence and arrested the driver of the bus and on completion of the investigation, he has filed the charge sheet before the Court having jurisdiction. 16. Mr. AC Upadhyaya, another witness, has deposed before the Tribunal that he was working as Additional C JM, Kamrup, at the relevant point of time and that he was travelling as one of the passengers along with the injured claimant. He has also deposed as to how the accident took place resulting in serious injuries to the claimant. 17. Smti Anjali Dutta, wife of the claimant, has adduced her evidence to the effect that after the accident, the claimant has not been able to resume his office as a Judicial Officer even to the day when he was examined i.e. 6.8.93. This lady has also spoken about the nature of the treatment received by her husband at Vellore Hospital and thereafter, and the condition of herliusband. She has deposed before the Tribunal that her husband has not been able to carry.on the normal work of a Judge as he was doing earlier. Indeed, she has also spoken about the fact that somebody must be there to attend on the claimant all the twenty four hours including the assistance to be given to him to attend to nature's calls. She has stated that all the four limbs of her husband do not function and that somebody must feed him and bathe him and attend to all his needs. He has become immobile after the accident and he is not able to move about physically. 18. Thus while assessing the evidence of the witnesses, both oral as well as documentary, the learned Member, MACT, has clearly recorded findings on the following points : (i) That in the absence of any acceptable evidence on behalf of the opposite party, the Tribunal has to come to a conclusion that the accident has occurred owing to the driver having lost control over the steering wheel and the bus dashed against the standing tree on the left side of the road. Applying the principles of res ipso loquitor and accepting the evidence of the eye witnesses, he has recorded a finding that the bus having dashed against the wayside tree and by virtue of the impact of the bus on the tree, the claimant has sustained serious injuries. He has disbelieved the story of the truck coming in the opposite direction with high speed which was responsible for the accident, as alleged in the written statement, as no evidence was led in by the opposite parties to establish the case to the contrary. Thus the finding on this point is that the accident has taken place due to rash and negligent driving of the bus. The bus dashed against the tree and resulted in the accident. (ii) In the light of the medical evidence adduced by PW 2, Dr. Zakir Hussain, Assistant Professor, Guwahati Medical College Hospital, Guwahati, and also the opinion furnished by the attending Doctor of the CMC Hospital, Vellore, the claimant suffered Paralytic stroke of the four limbs which has become permanent disability in all the four limbs of the claimant. (iii) Due to the unimpeachable evidence led in by the claimant that all the four limbs of the claimant have become completely crippled and that he became a physical weak and burden for himself and for the family for the rest of his life. (iv) Coming to the consideration of the damages by way of compensation claimed by the claimant, referring to the evidence on record, the learned Member MACT, recorded a finding that the claimant being hardly about forty five years old, who was working as Judicial Magistrate, 1st Class, and as on the date of the accident, he has a wife, Smti Anjali Dutta, aged about 36 years along with a son, aged about 12 years and school going, and two minor school going daughters, considering the evidence on record, the learned Tribunal below has arrived at a conclusion that as per Ext 14, the claimant's monthly pay was Rs.4,885/-. He had joined a permanent vacancy as a Judicial Officer in the year 1980 and he has another thirteen years of service. He was expecting promotion to the higher post. 19. Considering the evidence on record, both of Gauhati Medical College Hospital and the CMC Hospital, Vellore, including the treatment "given to the. claimant from 23.8.91 to 21.4.92. (i) A sum of Rs. He was expecting promotion to the higher post. 19. Considering the evidence on record, both of Gauhati Medical College Hospital and the CMC Hospital, Vellore, including the treatment "given to the. claimant from 23.8.91 to 21.4.92. (i) A sum of Rs. 1,00,000/- had been awarded under the head 'Medical Expenses'; (ii) Rs. 1,00,000/- awarded under the head of "Loss of financial earning during the period of treatment"; (iii) Regard being had to the 100% disability, considering the medical evidence on record, the Tribunal awarded a sum of Rs. 1,500/- to the private Physician, required to take care of the claimant, per mensum amounting to Rs. 1,00,000/-under the head 'Medical Assistance'; (iv) As regards to the loss of earning capacity arising out of the total disability of all the four limbs, considering the age of the claimant and the future loss of expectation of promotion, the learned Member of the Tribunal awarded a sum of Rs.2,00,000/- under the head 'Loss of earning capacity'. 20, Thus the amount of money awarded under the several heads coming to a total sum of Rs.6,00,000/- (Rupees six lakhs) only, including the award of Rs. 1,00,000/- awarded under the head "Loss of memory, eye sight and movement of head and leg", the learned Member MACT, also awarded interest at the rate of 1:2% per annum from the date of filing of the claim petition till the date of payment of the entire award money. 21. We have perused the grounds taken in the appeal as well as we have considered the argument advanced on behalf of the appellant/ASTC. 22. We are of the view that since no acceptable evidence was led in for the appellant/opposite party in the Tribunal with a view to show that the claims made by the claimant were on the higher side, since the learned Member, MACT, having assessed the damages by way of compensation on several heads applying the general principles of law in regard to MAC cases, the award of sum of Rs.6,00,000/- (Rupees six lakhs) only in total cannot be said to be on the higher side. The learned counsel for the appellant has not been able to persuade us to take a different view either to slash the amount of the award made by the learned Member, MACT, or to reduce the same for any reason acceptable to the Court. Therefore, there is no merit in this appeal. The learned counsel for the appellant has not been able to persuade us to take a different view either to slash the amount of the award made by the learned Member, MACT, or to reduce the same for any reason acceptable to the Court. Therefore, there is no merit in this appeal. In the result, the appeal is dismissed.