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2011 DIGILAW 987 (GAU)

Jogesh Debbarma v. Atal Chandra Biswas

2011-12-15

SWAPAN CHANDRA DAS

body2011
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal under Section 173 of the M.V. Act, 1988 is directed against the Judgment and Award dated 25.05.2000 passed by the Motor Accident Claims Tribunal, Court No. 3, West Tripura, Agartala in T.S. (MAC) 315 of 1996. 2. Heard learned counsel, Mr. S.K. Datta for the appellant (claimant-petitioner) and learned counsel, Mr. P. Gautam for the respondent No. 3, the Oriental Insurance Company Ltd. None appeared for the respondent Nos. 1 and 2. 3. The appellant as petitioner set the law in motion presenting a petition under Section 166 of M.V. Act before the Motor Accident Claims Tribunal, West Tripura, Agartala claiming compensation of Rs. 10,40,000/- in all for the injury sustained by him due to motor vehicle accident. It was inter alia stated by the claimant that on 12.06.1995, he was travelling with bus vehicle No. TRS 802 and was on way to Agartala from Ramchandra Ghat and the vehicle met an accident near Mohanpur bazar on Assam - Agartala road at about 15:30 hours for rash and negligent driving and as a result, he sustained fracture injury in the shaft of right femur, right hip and other parts of the body. He was taken to G.B. Hospital and was admitted as an indoor patient and undergone treatment from 12.06.1995 to 12.09.1995 for fracture of shaft of right femur. He was again admitted on 11.05.1999 and was discharged on 18.05.1999 and the K-nail fitted in his fractured leg was removed. He also alleged that an amount Rs. 30,000/- was spent for the purpose of treatment and that he was a daily labour by profession and used to earn Rs. 1,500/- per month and he lost his income during period of treatment and has become disabled and lost his income for ever. 4. Respondent Nos. 1 and 2 submitted a joint written statement denying the averments made in the claim petition and simply stated that the vehicle was insured with the Oriental Insurance Company covering the risk on the date of accident and that the vehicle was driven by an authorized driver having valid driving license. Respondent No. 3, the Oriental Insurance Company also contested the suit by filing written statement denying the averments made in the claim petition, but did not specifically deny the factum of insurance of the vehicle covering the risk on the date of accident. 5. Respondent No. 3, the Oriental Insurance Company also contested the suit by filing written statement denying the averments made in the claim petition, but did not specifically deny the factum of insurance of the vehicle covering the risk on the date of accident. 5. As I find on record, considering the pleadings of the parties, the Tribunal framed following issues :- 1. Whether the claimant-Petitioner Jogesh Debbarma was injured in a motor accident on 12.06.1995 at about 1530 hours on Assam-Agartala road near Mohanpur Bazar? 2. Whether said accident occurred due to rash and negligent driving of the driver of vehicle TRS 802 (Bus)? 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? 6. The claimant-petitioner examined himself as P.W. 1 and proved the discharge certificates of G.B. Hospital in respect of his treatment and a copy of F.I.R of Jirania P.S. Case No. 122 of 1995. Respondents adduced no evidence. 7. The Tribunal considering the pleadings of the parties and the evidence on record awarded an amount of Rs. 50,000/- towards cost of treatment, Rs. 4,500/- towards loss of income during the period of treatment and towards pain and suffering Rs.20,000/- totaling Rs. 74,500/- and directed the respondent No. 3, the Oriental Insurance Company to pay the amount. 8. Learned counsel, Mr. Datta has submitted that the petitioner being an illiterate tribal of labour class did not retain the documents regarding cost of treatment and so the award of Rs. 50,000/- towards cost of treatment was acceptable. The award towards pain and suffering was also found to be sufficient, but the award towards loss of income was absolutely inadequate and that is liable to be enhanced. According to learned counsel, the accident occurred on 12.06.1995 and the appellant-petitioner was in G.B. Hospital as an indoor patient till 12.09.1995. He was discharged with K-nail fitted in his fractured leg and the K-nail was removed from his fractured leg in the year 1999 and he was discharged from the hospital on 18.05.1999. Under such circumstances, it was clear that the petitioner could not pursue his normal work as a labour during the period from 12.06.1995 to 18.05.1999 and the petitioner was entitled to get the loss of income during the period. Learned counsel, Mr. Under such circumstances, it was clear that the petitioner could not pursue his normal work as a labour during the period from 12.06.1995 to 18.05.1999 and the petitioner was entitled to get the loss of income during the period. Learned counsel, Mr. Gautam, appearing for the insurance company has submitted that the removal of K-nail after four years does not necessarily infer that the petitioner could not pursue his normal work at all. The petitioner was hospitalized in the first spell for 3 months and in the second spell for 8 days and in the interim period, the petitioner might have pursued some sorts of work and earned something and under such circumstances, it will not be appropriate to award compensation to the petitioner for the entire period. On perusal of Exhibit 1 series i.e. the Discharge Certificates of G.B. Hospital, I find, the petitioner suffered comminuted fracture of shaft of right femur and K-nail was fitted and the K-nail was removed in the year 1999 for which he was again hospitalized from 11.05.1999 to 18.05.1999. It is thus clear that the appellant-petitioner being a labour could not pursue his normal work during the period of treatment i.e. from 12.06.1995 to 18.05.1999. The petitioner was a daily labour. He stated his monthly income was Rs. 1,500/-, which means he used to earn Rs. 50/- per day. It is very hard to believe that a daily labour would work on all days in a month without any rest or relieve. So here, we have to apply some guess work and some assumption and presumption. In all probability, the petitioner could work for 25 days in a month @ Rs. 50/- per day and in such a position, his monthly income in all probability was Rs. 1,250/-. So, the yearly loss of income was Rs. 15,000/-. He could not pursue his normal works for about four years and loss of income for four years to the tune of Rs. 60,000/-, the petitioner was entitled to get as compensation. So, the total compensation, which the petitioner was entitled to get as per the calculation made above was Rs. 50,000/- towards cost of treatment, Rs.60,000/- loss of income, Rs. 20,000/- pain and suffering totaling Rs. 1,30,000/-. The Tribunal has already held insurance company responsible for making payment of the compensation and it has been submitted that the award has already been satisfied. 50,000/- towards cost of treatment, Rs.60,000/- loss of income, Rs. 20,000/- pain and suffering totaling Rs. 1,30,000/-. The Tribunal has already held insurance company responsible for making payment of the compensation and it has been submitted that the award has already been satisfied. Under such circumstances, the excess amount of Rs. 1,30,000/- - Rs.74,500/- = Rs. 55,500/- is to be paid by the insurance company to the appellant-petitioner. 9. The insurance company is directed to make payment of the amount Rs. 55,500/- within 45 days from today failing which the amount shall carry interest @ 12% per annum. 10. A copy of the Judgment be supplied to the appellant and the insurance company for compliance. 11. Send back the L.C.R. along with the copy of the Judgment.