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2011 DIGILAW 593 (ORI)

Tulsi Prasad Agarwala v. Narayan Das

2011-12-09

V.GOPALA GOWDA

body2011
JUDGMENT GOPALA GOWDA, C.J. – This Miscellaneous Appeal against the order dated 9th December, 2011 passed by the Second Motor Accident Claims Tribunal, Sambalpur in Misc. (A) Case No.69 of 1992 (SN), is filed by the injured in a motor vehicle accident that took place on 7.11.1991 at about 10.30 P.M. on the over-bridge of Vedvyas-Panposh Main Road, seeking for enhancement of compensation at Rs. 1.65 lakhs with interest, urging various facts and legal grounds. 2. The brief fact is that the claimant-injured was returning from Vedyas to Rourkela with his friends in a scooter bearing registration number OIS 6609 on 7.11.1991 at about 10.20 P.M. When they reached the overbridge of Brahmani tarang, the offending truck OSO 443 came from the opposite side being driven in a rash and negligent manner, and dashed against the scooter. The claimant being pillion rider, fell down from the scooter and another rider died on the spot. He sustained multiple injuries on his leg and body and became unconscious. He was admitted in the I.G.H. as an indoor patient and was discharged on 30.12.1991. He also remained under treatment of Senior Specialist of Orthopaedic. Operation was conducted on his leg. Grafting and nailing of bones were also done on his foot. 3. The owner-O.P. No.1 remained exparte. The Insurance Company respondent No.2 appeared and filed written statement denying its liability. 4. The Tribunal has awarded Rs. 35,000/- with interest @ 10% per annum from the date of filing the claim petition (16.4.1992) till the date of realisation directing the owner-O.P. No.1 to pay the same within two months from the date of order. 5. Mr. Behura, learned counsel for the claimant-appellant submitted that the Tribunal has erred in holding that there is no insurance policy of the vehicle though in para-7, the Tribunal has mentioned the policy number. He further stated that the Tribunal has erred in not considering Ext.10, the injury certificate and rejecting the claim for loss of earning capacity on the ground that the injury certificate is not available. Further it is urged that the Tribunal has committed gross illegality by not granting the loss of income for the period of hospitalisation and only awarded compensation towards the cost of the medicines, pain, discomfort and mental agony. It is further urged that the Tribunal has committed error in not granting the conveyance charges and expenses, incurred on the attendants. Further it is urged that the Tribunal has committed gross illegality by not granting the loss of income for the period of hospitalisation and only awarded compensation towards the cost of the medicines, pain, discomfort and mental agony. It is further urged that the Tribunal has committed error in not granting the conveyance charges and expenses, incurred on the attendants. It is further urged that the Tribunal committed material irregularities in not fastening liability upon the Insurer-respondent No.2 for payment of the compensation awarded to the claimant. 6. Mr. Roy, learned counsel for the Insurance Company vehemently opposed the claim. He submitted that driver of the offending truck is not known and the owner has not averred if the driver has valid Driving Licence at the time of accident. That apart the documents relating to the vehicle/accident are not filed. It is the duty of the claimant to file the police papers relating to the accident. The fact of accident was not brought to their notice and the injuries caused to the claimant was not within the knowledge of the insurance company. The policy number of the offending truck has not been disclosed. The respondent No.2 is not liable to trace out the policy. The owner was to produce the policy particulars in original. The rider of the scooter is also equally liable for the accident. The loss of income of the claimant no way diminished the life span of the injured. The owner and the insurer of the scooter involved in the accident should be made parties. 7. Considering the rival submissions, the points for determination are: (i) whether the appellant is entitled for enhanced compensation? and (ii) what order? 8. The claimant is an income tax assesse. This fact has been brushed aside by the Tribunal. The Tribunal is not correct in holding that the income of the injured is not a vital factor for assessing the quantum of compensation. That apart the claim towards attendant charges has been ignored. The Tribunal has opined that the injuries were grievous in nature. In absence of the injury certificate on record, the loss of earning capacity has been ignored. The contention of Mr. Roy that the loss of income of the claimant no way diminished his life span, is not acceptable to this Court. The Tribunal has opined that the injuries were grievous in nature. In absence of the injury certificate on record, the loss of earning capacity has been ignored. The contention of Mr. Roy that the loss of income of the claimant no way diminished his life span, is not acceptable to this Court. On being directed, learned counsel for the Insurance Company produced a copy of the certificate of Insurance by filing a memo. The finding recorded by the Tribunal that there is no insurance policy, is not correct. Therefore, this is a fit case to interfere and fasten the liability. For the reasons stated supra, this Court is inclined to enhance the compensation awarded. 9. Accordingly Rs. 50,000/- is awarded towards shortening of leg, Rs. 15,000/- is awarded towards conveyance, Rs. 10,000/- is awarded towards attendant charges, Rs. 15,000/- is awarded towards medical expenses, Rs. 20,000/- is awarded towards loss of amenity, Rs. 36,000/- is awarded towards loss of earning capacity of the claimant for one year as he had taken treatment and Rs. 2,500/- is awarded towards physiotherapy expenses. Total awarded amount is Rs. 1,48,500/-. Deducting Rs. 35,000/- as already awarded, the claimant would be entitled to get the balance enhanced compensation amount of Rs. 1,13,500/- which will carry interest @ 7% from the date of filing of the claim till payment. With the above said terms, the impugned judgment is modified and the appeal is allowed in part. The Insurance Company is directed either to deposit or to pay the total compensation awarded in this judgment to the claimant within four weeks from the date of receipt of a copy of this judgment. Appeal allowed in part.