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2001 DIGILAW 224 (GAU)

State of Assam v. Arundhati Saikia and Ors.

2001-08-14

J.N.SARMA, P.G.AGARWAL

body2001
J. N. Sarma, J. — These appeals have been filed by State of Assam against the award dated 5.6.99 passed by the Member MACT, Kamrup at Guwahati in MAC Cases 657/94,658/94 and 659/94. MAC Case No.657/94 is in respect of 8 Arundhati Saikia and Appeal No.44 of 2000. MAC Case No. 659/94 is with regard to Lakhimi Saikia Bora and the Appeal No. 49 of 2000. MAC Case No. 659/ 94 is with regard to Kalpa Bora and Appeal is MAC Appeal 45 of 2000. 2. All the three cases were taken up together by the learned Tribunal as they were the persons injured in the same accident and the compensation also was sought from the same set of respondents. Thereafter all the three cases were taken analogously at the time of hearing and by a common judgment, the learned Tribunal disposed of all the three cases. 3. In the case of Arundhati Saikia, the learned Tribunal gave the following compensation : "A. Pecuniary damages: (1) Medical expenses Rs.73,731/- (2) Expenses on attendants Rs.25,000/- (3) Special diet and transportation Rs.25,000/- B. Non-pecuniary damages: (1) Damages for mental and physical shock, pain and suffering, already suffered and likely to be suffered in future Rs.50,000/- (2) Permanent disability Rs.25,000/- (3) Loss of expectation of life Rs.50,000/- (4) Loss of future earning Rs.50,000/- (5) Damages for inconvenience hardship, discomfort, dis-appointment, frustration and mental stress in life Rs. 1,00,000/- Rs. 3,98,731/- This amount shall carry an interest at the rate of 12% per annum wef 20.7.94, the date of filing the claim petition till payment or realisation." 4. In the case of Lakhimi Saikia Bora, compensation was given as follows: "A. Pecuniary damages: (1) Professional loss Rs.36,000/- (2) Expenses on medical attendants Rs. 18,000/- (3) Special diets and transportation Rs. 12,000/- B. Non-pecuniary damages: (1) Damages for mental and physical shock, pain and suffering, already suffered and likely to be suffered in future Rs.50,000/- (2) Loss of expectation of life Rs.40,000/- (3) Loss of future earning Rs.30,000/- (4) Loss of damages for inconvenience, hardship, discomfort, dis-appointment, frustration and mental stress in life Rs.50,000/- Rs.2,36,000/-" 5. 12,000/- B. Non-pecuniary damages: (1) Damages for mental and physical shock, pain and suffering, already suffered and likely to be suffered in future Rs.50,000/- (2) Loss of expectation of life Rs.40,000/- (3) Loss of future earning Rs.30,000/- (4) Loss of damages for inconvenience, hardship, discomfort, dis-appointment, frustration and mental stress in life Rs.50,000/- Rs.2,36,000/-" 5. In the case of Kalpa Bora, compensation was given as follows : "A. Pecuniary damages (1) Loss of earning for 291 days leave period Rs.2,40,000/- (2) Special diet and transportation Rs.30,000/- B. Non-pecuniary damages: (1) Damages for mental and physical shock, pain and suffering, already suffered and likely to be suffered in future Rs.50,000/- _ (2) Loss of expectation of life Rs.50,000/- (3) Loss of inconvenience hardship, discomfort, dis-appointment, frustration and mental stress in life Rs. 1,00,000/- (4) Loss of future income due to constrain of promotion Rs.l,00,000/- (5) Cost of driver for 67 months at the rate of 1200/- per month Rs. 80,400/- (6) Cost of servant already engaged at the rate of 4007- per month for 36 months Rs. 14,400/- Rs. 7,14,800/- This amount shall carry an interest at the rate of 12% per annum wef 20.7.94, the date of petition till payment." Hence these appeals by the State of Assam. 6. We have heard Mr. BM Sarma, learned counsel for appellant-State of Assam and Mr. GK Bhattacharyya, learned senior counsel assisted by Mr. B. Chakraborty, learned counsel for respondents and also Mr. G. Baishya, learned counsel for the insurance company. 7. Mr. BM Sarma, learned counsel for appellant urges that the compensation arrived at by the learned Tribunal are absolutely arbitrary and capricious and they are on the higher side and that cannot be given. 8. What is pecuniary damage and special damage that came up for consideration before the Apex Court in AIR 1995 SC 755 (RD Hattangadi vs. M/s Pest Control (India) Pvt Ltd & others) and the Apex Court in para 9 has laid down the law as follows : "Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include : (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience hardship, discomfort, frustration and mental stress in life." 9. The other case is (1999) 4 SCC 22 (Ashwani Kumar Mishra vs. P. Muniam Babu & others) wherein the Apex Court pointed out as follows : "It was further held that whenever a Tribunal or Court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused However, all such elements are required to be viewed with objective standards. While assessing damage, the Court cannot base its opinion merely on speculation or fancy though conjectures to some extent are inevitable." It is on the basis of this law that we must now assess the compensation as arrived at by the Tribunal. 10. Let us take up the case of Arundhati Saikia. At the time of accident, she was aged about 24 years and there is evidence that there is permanent disfigurement on her face, it was most unlikely to get corrected even after surgery. h She was doing MA in Assamese in the Gauhati University, but could not pass the MA final examination due to her serious physical disablement. She is unmarried and being unmarried lady, there is every chance of her not getting a suitable groom because of the disfigurement on her face caused by accident. h She was doing MA in Assamese in the Gauhati University, but could not pass the MA final examination due to her serious physical disablement. She is unmarried and being unmarried lady, there is every chance of her not getting a suitable groom because of the disfigurement on her face caused by accident. The other finding of the learned Tribunal is that because of this injury there is every possibility of shortening her longevity. With regard to that there is absolutely no evidence a either of the expert or of the witnesses. It is absolutely based on conjecture and no compensation can be given on this count. Regarding pecuniary damage, the amount of Rs.73,731/- given for medical expenses shall hold the field, but there is absolutely no evidence whatsoever with regard to the expenses of attendants and expenses of special diet and transportation. So that amount shall fall through. Regarding non-pecuniary damage, we find that this is absolutely an arbitrary and b capricious finding arrived at by the Tribunal. It is based on conjuncture. There is neither any documentary nor oral evidence with regard to that. No doubt, in a case before the Tribunal, the strict rule of evidence does not apply and the Court can look to a view of evidence without being exhibited as required in civil suit, but in that case also, there must be some legal evidence to come to the finding. No award can be passed by the Tribunal on conjecture, but that is what has c happened in the cases in hand. Some amount of guess work is possible and that should be done in order to arrive at just compensation, but that guesswork must be within the limit and it cannot cross the limit. There is no doubt that this lady must have suffered injury as indicated above and for that certainly she is entitled to some compensation and by setting aside the earlier compensation fixed for the , non-pecuniary damage, we assess the compensation at Rs. 1,00,000 (one lakh) and accordingly this lady shall be entitled to a total compensation of Rs. 1,73,731. However, we do not interfere with the interest which has been imposed. 11. Next comes to the case of Lakhirm Saikia Bora. The amount has been given on three counts: (i) professional loss; (ii) expenses on medical attendants; and (iii) special diets and transportation. 1,73,731. However, we do not interfere with the interest which has been imposed. 11. Next comes to the case of Lakhirm Saikia Bora. The amount has been given on three counts: (i) professional loss; (ii) expenses on medical attendants; and (iii) special diets and transportation. There is no evidence with regard to expenses on medical attendants. There is also no evidence with regard to special diets and transportation. So, that amount of Rs.30,000 shall fall through. Regarding professional loss also we do not find any adequate evidence, but yet she was a APP, she must have suffered some loss and we calculate this loss at Rs. 18,000. Regarding non-pecuniary damages, it is fixed at Rs.50,000 as we do not find any evidence regarding loss of expectation of life, loss of future earning and regarding other item as indicated above, we fix it at Rs.50,000. So this lady shall be entitled to an amount of Rs. 68,000 with interest as given by the Tribunal. 12. Next comes to the case of Kalpa Bora. It may be stated herein that he is an employee of ONGC and the total amount for treatment was paid by the ONGC. Regarding the first count i.e. loss of earning for 291 days leave period, he is not entitled to it because he must show that for this period, he did not receive salary from his employer. He cannot have it both ways - one from his employer and other from the Tribunal. There is absolutely no evidence with regard to special diets and transportation. Regarding non-pecuniary damages, the compensation assessed by the tribunal is absolutely without any evidence and it is based on conjecture. The claimant i.e. Kalpa Bora is entitled to only non-pecuniary damage i.e. assessed at Rs. 1,00,000 and the amount of interest shall hold the field. 13. With this modification of the award, all these appeals are disposed of.