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2009 DIGILAW 473 (CAL)

Tarun Majhi v. Gopinath Murmu

2009-07-03

B.Bhattacharya, Prasenjit Mandal

body2009
JUDGMENT Bhaskar Bhattacharya and Prasenjit Mandal, JJ. 1. INSTEAD of disposal of the application, we propose to hear out the appeal itself by treating it as on day's list. 2. THIS appeal is at the instance of a claimant in a proceeding under section 166 of the Motor Vehicles Act and is directed against an award dated 20.7.2005 passed by Motor Accidents Claims Tribunal, Pas- chim Medinipur in M.A.C. Case No. 207 of 2005 thereby disposing of the said proceeding by awarding a sum of Rs. 2,24,200 in favour of claimant for the injury suffered by him. Insurance company was directed to make payment of such amount within a period of one month with a direction that in default of making of such payment within the said period, the amount would carry interest at the rate of 6 per cent per annum from the date of award till realization of the amount. Being dissatisfied, the claimant has come up with the present appeal. 3. IT appears from record that according to the claimant, due to rash and negligent driving on the part of the driver of the offending vehicle, he was injured. In view of such injury, he lost his right leg from the middle portion of his thigh. According to the claimant, he was a helper in a private bus and used to earn Rs. 130 a day. At the time of accident, the victim was aged 20 years. Therefore, a total amount of Rs. 6,00,000 was claimed as compensation in the proceeding under section 166 of the Motor Vehicles Act. 4. THE owner of the vehicle did not contest the proceeding in the Tribunal, but the insurance company by taking leave under section 170 of the Act, merely cross- examined the witnesses of the claimant, but did not lead any evidence of its own. Learned Tribunal below on consideration of the evidence on record accepted all the statements of the claimant except on the question of income of the victim. Although, according to the victim, he used to earn Rs. 130 a day by acting as a helper of a bus and the owner of the bus also gave evidence in support of the claim of the claimant, the learned Tribunal below did not accept his case on the ground that no register was produced showing employment of the victim and thus, according to him, Rs. 130 a day by acting as a helper of a bus and the owner of the bus also gave evidence in support of the claim of the claimant, the learned Tribunal below did not accept his case on the ground that no register was produced showing employment of the victim and thus, according to him, Rs. 1,500 a month should be treated to be the income of the victim. 5. AT this stage, it may not be out of place to mention here that no suggestion was given to the owner of the bus or to the victim that he used to work as a helper for 12 or 15 days a month. 6. MR. Das, learned advocate appearing on behalf of the insurance company, strenuously contended before us that it is well known that a helper does not get job for 30 days a month and thus the learned Tribunal below did not commit any illegality in assessing the income of the victim to be Rs. 1,500.00 a month. After going through the evidence on record and particularly, in the absence of any suggestion that the victim used to earn for 15 days a month, we are of the opinion that we can reasonably presume that the victim used to get one day a week as his holiday and thus, used to work for 25 or 26 days a month. We do not find any reason to disbelieve the owner of the bus on the question of payment of wages to the victim at the rate of Rs. 130 a day and the said amount is not an absurd and exaggerated one. If we take into consideration the decision of the Supreme Court in the case of Laxmi Devi v. Mohammad Tabbar, 2008 ACJ 1488 (SC), where the Supreme Court has held that nowadays even an unskilled labourer earns Rs. 100 a day. 7. ALTHOUGH Mr. Banik, the learned advocate appearing on behalf of the appellant, tried to impress upon us that 70 per cent disablement assessed by the Medical Board should be treated to be cent percent disablement, having regard to the fact that the victim used to work as a helper of a private bus, we are not impressed by such submission as we propose to apply the Second Schedule to the Motor Vehicles Act to the facts of the present case. According to the said provision in the case of amputation of one leg by referring to the Workmen 's Compensation Act, the disablement should be treated to be 70 per cent and the Medical Board has also given the same certificate assessing the disability of the victim to be 70 per cent. We, thus, accept the said certificate and on the basis of income of Rs. 3,000 a month, propose to assess the amount of compensation. 8. SINCE the victim was aged 20 years and odd, the appropriate multiplier should be 17. On that basis, the amount comes to Rs. 4,28,450 as compensation. Apart from the aforesaid amount, a further amount of Rs. 4,000 should be given to the appellant towards the medical expenses incurred by him towards cost of medicine. The amount, thus, comes to Rs. 4,32,450 with interest at the rate of 8 per cent per annum from the date of filing of the application i.e., 18/3/2005 till actual deposit of the amount. 9. IT is needless to mention that interest on the amount already deposited by the insurance company will stop running from the date of deposit of such amount before the Tribunal. 10. THE insurance company is directed to deposit the balance amount within a month from today before the Tribunal. The awarded amount is, thus, modified to the extent indicated above and the appeal is, thus, disposed of. Let the lower court records be sent down immediately. In view of disposal of the present appeal itself, the connected application being C.A.N. No. 7764 of 2007 has become infructuous and the same is disposed of accordingly. 11. PHOTOSTAT certified copies of this order, if applied for, be given to the parties within a week from the date of making of such application upon compliance of all requisite formalities. Appeal disposed of.