Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 1012 (GAU)

Sudhangshu Sen @ Kebal Sen v. Nandalal Deb Barma

2011-12-21

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment and order dated 29.3.2001 passed by the learned Member Motor Accidents Claims Tribunal, West Tripura, Agartala (Court No. 2) in T.S. (MAC) 373 of 1997, whereby an amount of Rs. 10,000/- only was awarded as compensation to the appellant/claimant. The appellant/applicant filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short M.V. Act) before the Motor Accident Claims Tribunal, West Tripura, Agartala against the opposite parties claiming compensation for sustaining injuries in a motor accident occurred on 13.2.1997 stating inter alia that at about 7.10 p.m., while he was coming from his house at Joynagar to College Tilla, the vehicle bearing registration No. TR-01-9205 (M/C) (Scooter) hit him from back side at Math Chowmuhani and as a result he fell down on the road. He received grievous injuries on his person. The offending vehicle was being driven in a rash and negligent manner at a very high speed and as a result the said accident took place. The appellant, after accident, was attended by. Dr. J.C. Saha and thereafter he was treated by Dr. Monoj Chakraborty and Dr. B.C. Poddar. He was also under treatment in G.B. Hospital, Agartala till filing of the petition claiming an amount of Rs. 1,01,000/- only as compensation for the cost of treatment, suffering from pain and agony and loss of income. The appellant claimed that due to accident he received serious injuries on his middle finger of right hand abrasion injuries on various parts of his person including forehead. The wound on his forehead turned to serious condition gradually and he was referred to Guwahati for treatment of his left eyewhere he was operated requiring him to spend about Rs. 40/45 thousand. 2. The respondent opposite parties Shri Nandalal Deb Barma, owner of the offending vehicle and the New India Assurance Co. Ltd., filed written statement denying the claim of the appellant. The learned tribunal framed the following issues : (1) Whether Sri Sudhangshu Sen was injured in a motor accident on 13.2.97 at about 7.10 p.m. at Math Chowmuhani, Assam-Agartala Road, Agartala? (2) Whether said accident occurred due to rash and negligent driving of the driver of the vehicle TR-01-9206 (M/C) (Scooter)? (3) Whether the claimant petitioner is entitled to get compensation, if so, what should be the just compensation? (2) Whether said accident occurred due to rash and negligent driving of the driver of the vehicle TR-01-9206 (M/C) (Scooter)? (3) Whether the claimant petitioner is entitled to get compensation, if so, what should be the just compensation? (4) Who is liable to pay compensation, if awarded? 3. The learned tribunal decided the issue Nos. 1 and 2 in favour of the appellant. 4. The issue Nos. 3 and 4 were discussed and considered, together. In view of the decision, in respect of issue Nos. 1 and 2, learned tribunal held that the, appellant is entitled to get compensation as per provisions under the M.V. Act. Thus, the issue No. 3 was also answered in favour of the appellant. But the learned tribunal awarded much less amount of compensation to the dissatisfaction of the appellant. In support of his claim, the appellant examined himself only. No other witness was examined by him. He submitted two prescriptions; one from Dr. BRA Memorial Hospital, Tripura(W) bearing no date and another prescription from Dr. G.S. Chakraborty, eye specialist dated 21.8.1999. First prescription, being undated, cannot be ascertained whether it was issued in favour of the appellant just after the accident or not. The other prescription is dated 21.8.99 was issued by Dr. G.S. Chakraborty, eye specialist. The appellant consulted the eye specialist after 2-1/2 years from the date of alleged vehicular accident. Due to his eye problem he came to Guwahati for consultation/treatment in the Shankar Dev Netralaya and he paid Rs. 100/- as OPD counselling fee. It may be accepted that he came by bus and spent Rs. 315.00 x 2 = Rs. 630.00 for up down bus fare. He came to Guwahati for the second time on 29.8.1999 by bus and stayed in the Tripura Bhawan, G.S. Road, Guwahati from 29.8.1999 to 15.9.1999 and paid Rs. 345/- as rent at the rate of Rs. 15/- per day. He came for the third time to Guwahati and stayed in the Tripura Bhawan, G.S. Road, Guwahati from 3.11.1999 to 6.11.1999 for which he paid Rs. 40/- only as seat rent. He was not accompanied by any attendant in Guwahati. He came alone and returned alone by bus on three occasions. He spent Rs. 315/- x 2 x 3 = Rs. 1890/- for bus fare and (Rs. 345/- + Rs. 40/-) = Rs. 385/- for accommodation. The appellant spent in total Rs. 40/- only as seat rent. He was not accompanied by any attendant in Guwahati. He came alone and returned alone by bus on three occasions. He spent Rs. 315/- x 2 x 3 = Rs. 1890/- for bus fare and (Rs. 345/- + Rs. 40/-) = Rs. 385/- for accommodation. The appellant spent in total Rs. 2275/- (Rupees two thousand two hundred and seventy seven) only for his journey and stay at Guwahati. 5. The appellant produced necessary supporting documents in connection with the aforesaid expenditure he met which have been proved and exhibited during trial. 6. The appellant produced several cash memos for purchasing medicines and payment of fees relating to his treatment at Guwahati which are as follows : (1) Counselling fee at Sri Sankardeva Nethralaya Rs. 100.00 (2) Purchase of medicine on 30.8.99 Rs. 202.00 (3) Purchase of medicine on 31.8.99 Rs. 195.0031. (4) Medical bill dated 1.9.99 paid to Institute of Neurological Sciences Rs. 85.00 (5) Scanning charge on 1.9.99 at the Institute of Neurological Sciences Rs. 3125/- (6) S.T. scann, brain and orbits dated 1.9.99 with iconic con Rs. 330/- (7) Fee for investigation at Down Town Hospital dated 2.9.99 Rs. 1000/- (8) Purchase of syringe at Down Town Hospital dated 2.9.99 Rs. 293.05/- (9) Purchase of syringe at Down Town Hospital dated 2.9.99 Rs. 504.00 (10) Fee for investigation and other Fee paid at Down Town Hospital dated 3.9.99 Rs. 1367/- (11) OPD Bill paid to Down Town Hospital on 3.9.99 Rs. 209.00 (12) Consultation fee at Down Town Hospital dated 4.9.99. Rs. 358.00 (13) Investigation fee at Down Town Hospital dated 7.9.99. Rs. 15.00 (14) Investigation fee at Down Town Hospital Dated 4.9.99. Rs. 60.00 (15) Laboratory charge at Down Town Hospital Dated 6.9.99. Rs. 20.00 (16) Investigation fee at Down Town Hospital dated 8.9.99. Rs. 20.00 (17) Investigation fee at Down Town Hospital dated 11.9.99. Rs. 15.00 (18) Investigation fee at Down Town Hospital Dated 9.9.99. Rs. 15.00 (19) Investigation fee at Down Town Hospital dated 8.9.99. Rs. 60.00 (20) Investigation fee at Down Town Hospital dated 9.9.99. Rs. 60.00 (21) Purchase of medicine dated 9.9.99 at Unique Medicos, Guwahati. Rs. 891.35 (22) Purchase of medicine dated 5.11.99 at Unique Medicos, Guwahati. Rs. 171.80 (23) Consultation fee dated 1.9.99 paid to Dr. Navanil Baruah, Institute of Neurological Science. Rs. 100.00 (24) Fee for city scanning dated 1.9.99 etc. Rs. Rs. 60.00 (21) Purchase of medicine dated 9.9.99 at Unique Medicos, Guwahati. Rs. 891.35 (22) Purchase of medicine dated 5.11.99 at Unique Medicos, Guwahati. Rs. 171.80 (23) Consultation fee dated 1.9.99 paid to Dr. Navanil Baruah, Institute of Neurological Science. Rs. 100.00 (24) Fee for city scanning dated 1.9.99 etc. Rs. 100.00 The appellant spent Rs. 9296/- at Guwahati for his treatment. The aforesaid expenditure incurred by the appellant is supported by necessary cash memo etc exhibited during trial. But there is no evidence to prove that the appellant was referred to Shri Sankardev Netralaya and/or other hospital for treatment of his left eye after a lapse of 2-1/2 years from the date of alleged motor accident. None of the local doctors has been examined by the appellant to corroborate his evidence. For want of such evidence, the compensation claimed by the appellant cannot be accepted. It is, therefore, held that the appellant is not entitled to payment of above amount. 7. There is no document supporting the appellant's claim that he was under treatment of Dr. Monoj Chakraborty and Dr. B.C. Podder at Agartala. No cash memo for purchasing of medicines etc has been furnished. In absence of supporting documents the appellant's claim for compensation towards his treatment cannot be considered. However, assuming that he was under treatment for his injury, as a measure of guess work, payment of Rs. 5000/- at the maximum can be considered. 8. As regards the appellant's claim that he was earning Rs. 4500/- to 5000/- per month as owner of the Press and doing the job of machine man, no document has been produced nor was any witness from his Press or other reliable witness examined to prove his monthly income. He was never hospitalised at Agartala for treatment of his injury received due to motor vehicular accident. There is no evidence, oral or documentary that he was temporarily incapacitated to perform his duties and he had to take rest causing financial loss to him. It is noteworthy that the appellant was 48 years at the time of filing the claim petition. He came to Guwahati for treatment of his eyes after 2 1/2 years from the date of alleged motor accident. It is noteworthy that the appellant was 48 years at the time of filing the claim petition. He came to Guwahati for treatment of his eyes after 2 1/2 years from the date of alleged motor accident. There is no medical certificate/document to the effect that his eye was affected due to the alleged motor vehicle incident and advised by eye specialist at Agartala for treatment in the Sri Shankardev Netralaya or at the Institute of Neurological Sciences or Down Town Hospital at Dispur, Guwahati. Without such medical documents, his claim for medical expenses for treatment at Guwahati cannot be considered. Had it been just after the alleged vehicular accident, his eye problem could have been treated as connected with the injury he received in the accident. From the bus tickets furnished and the seat rent receipts issued by the Tripura Bhawan, Guwahati, it appears that the appellant undertook the journey from Agartala to Guwahati and back on three occasions without any attendant or person. He may be entitled to journey fare for an attendant but when no journey ticket has been produced, supporting his claim, payment for attendant's bus fare etc cannot be considered. 9. The law allows pecuniary and non-pecuniary damages. What is meant by pecuniary and non-pecuniary damage and how the damage should be considered and paid has been discussed and settled in R.D. Hattangadi v. M/s. Pest Control (India) Pvt. Ltd. and Ors., reported in AIR 1995 SC 755 . It is held that pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas the non-pecuniary damages are those which are incapable of being assessed by arithmetical calculation. It is further held that the pecuniary damages include expenses incurred by the claimant for: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material Joss. If the appellant's pecuniary damage is considered one can find from record, as discussed earlier, that he incurred expenditure towards his treatment at Guwahati which is calculated at Rs. 9296/-. This aspect of the matter has been considered in details by the learned tribunal in paragraph 10 of the impugned judgment. I am fully in agreement with the reasonings and conclusion arrived at by the learned tribunal and I fully endorse that the appellant is entitled to get compensation of Rs. 9296/-. This aspect of the matter has been considered in details by the learned tribunal in paragraph 10 of the impugned judgment. I am fully in agreement with the reasonings and conclusion arrived at by the learned tribunal and I fully endorse that the appellant is entitled to get compensation of Rs. 5000/- for his treatment. 10. There is nothing to be added as pecuniary damages in this case inasmuch as there was no loss of earning or profit till the date of trial nor was there any other material loss caused to the appellant due to the aforesaid vehicular accident. Non-pecuniary damage as per the aforesaid judgment includes (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, disappointment, frustration and mental stress in life. There is no case made out or proved by the appellant that he was suffering from any of the aforesaid loss, inconvenience and difficulties. If the aforesaid law is applied in strict sense, no compensation can be awarded to the appellant under the head of non-pecuniary damage. However, learned tribunal out of sympathy has awarded Rs. 5000/- under the said head. I fully agree with the learned tribunal and uphold the order for payment of Rs. 5000/- as non-pecuniary damage to the appellant. Having considered the attending facts and of the case, I find no ground for interference with the impugned judgment and order passed by the learned tribunal and as such this appeal is dismissed. Consequently, the impugned judgment and order stands upheld. Send down the LCR forthwith. Appeal dismissed.