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2012 DIGILAW 1145 (GAU)

Rosheshwar Dutta v. Pramod Gogoi

2012-09-28

S.TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. All these appeals filed under Section 173 of the Motor Vehicles Act, 1988 by the claimants are tied up together for the reason that the claims related to those appeals are from the same accident and in addition thereto those claims have been disposed of by the common judgment and award dated 17.08.2006 as passed by the Motor Accident Claims Tribunal, Golaghat in MAC Case No. 67 of 2008, MAC Case No. 68 of 2003 and MAC Case No. 69 of 2003. The findings as returned by the Tribunal as regards the accident that occurred on 16.06.2002 when the Maruti Car bearing registration No. As-04-A-8604 which the appellants were travelling-by was dashed by the offending vehicle bearing registration No. AS-01-J-0045(Bus) having been driven in a rash and negligent manner, the serious injuries as sustained by the appellants on their persons, damage caused to the Maruti Car and the insurance cover of the offending bus by the respondent No. 2 are not in dispute by either of the parties and in the appeal. As such, those findings stand affirmed by this Court and further appraisal thereof is avoided. 2. The questions as projected in this appeals are common and related to the insufficiency of the compensation vis-a-vis the injuries and disability as received by the appellants from the said accident. 3. Mr. J. Singh, learned senior counsel appearing for the appellant submitted that the impugned judgment and award has been passed in denying the principle as laid down in Section 168 of the Motor Vehicle Act, 1988. To illustrate further, Mr. J. Singh, learned senior counsel has stated that the medical expenses as supported by the proper records has not been included in the compensation and also the rate of disability has been relegated to while determining the compensation. 4. On the other hand, Mr. S.S. Sarma, learned senior counsel along with Mr. R.K. Bhatra, learned counsel appearing for the respondent No. 2 strongly supported the award passed by the Tribunal and submitted that the Tribunal has taken all necessary factors into consideration and excluded those which would exalt in the unjust gain. He by way of further explanation submitted that the records relating to the medical expenses were not submitted in original so far the appellant in MAC Case No. 67 of 2008 is concerned. He by way of further explanation submitted that the records relating to the medical expenses were not submitted in original so far the appellant in MAC Case No. 67 of 2008 is concerned. The said appellant was a Superintendent Engineer under the ONGC Ltd. and non-submission would unhesitatingly point to submission of the originals for reimbursement from the ONGC Ltd. As per the Medical Attendance Rules the said appellant is entitled to reimburse the medical bills from the ONGC Ltd. The Tribunal has not accepted the copies of the vouchers to grant medical expenses in absence of the originals. Apart that, nowhere in the claim petition it has been submitted that for the accident the said appellant has become jobless or that his earning has suffered adversely. What he deposed in the Tribunal is that he lost one promotion. But such claim is as well not supported by any document or convincing evidence. The appellant however, narrated the inconvenience from the disability that he suffered from the accident and to eliminate such inconvenience to some extent, he has to incur the additional expenditure periodically. The other appellants however did not receive such injuries which has caused any sort of disability. At least no medical records has been produced thereof. For purpose of appreciating the rival contentions of the learned counsel appearing for the parties it would be proper to scrutinize the LCRs. 5. MAC Appeal No. 64 of 2008: It is pertinent to note that MACT Case No. 67 of 2003 was filed by the appellant in MAC Appeal No. 64 of 2008 for compensation againsts damage that his Maruti vehicle suffered in the accident. The Tribunal in consideration of the provisions as laid down in Section 147(ii) and without any attempt to ascertain the damage as there was no report either by a surveyor or by a workshop mechanic provided it compensation of Rs.6,000/-. This liability is limited to a 'third party risk'. The said third party damage is not liable to realized if the property was insured at the relevant point of time in as much as the third party cannot approach any civil Court in view of Section 175 of the M.V. Act. The Tribunal committed no wrong in providing the compensation against the said 'third party' damage and accordingly no interference thereof is called for. 6. The Tribunal committed no wrong in providing the compensation against the said 'third party' damage and accordingly no interference thereof is called for. 6. MAC Appeal No. 67 of 2008: From the medical report dated 06.01.2003 as produced by the appellant in the Tribunal it appears that the appellant had suffered serious fracture in the Shaft (Right) femur, fracture lower end femur(Right), Subtrochanteric fracture (Right) femur with fracture Shaft (Right) tibia, with fracture lateral condoyle of (Right) tibia following the road traffic accident on 16.06.2002. In terms of the medical opinion as reflected in the said certificate dated 06.01.2003, the appellant suffered disability to the extent of 70%. But the nature of the disability has not been ascertained. The said medical certificate is admitted in the evidence as Ext 'X' in exercise of power as conferred under Section 165 of the Evidence Act and placed in the record. For unintelligible reason, even though the said record (Ext. X) was available in the Tribunal records, the Tribunal preferred not to consider the said medical opinion for the purpose of ascertaining the compensation. No doubt that the appellant did not lose service but he has lost the future prospect and amenities in life. Even if there is no loss of earning as such but the cumulative effect of the said physical disability would have consequential effects on the future life and occupation. But the vouchers for the medical expenses as not produced in original those cannot be accepted in the evidence. Even the 70% disability is not of the permanent nature as claimed by the petitioner. Furthermore, it appears from the deposition of the CW-2 that ONGC Ltd. has reimbursed the medical expenses of the claimant to the extent of Rs.2,25,367/-, as such this Court is also not inclined to grant further medical expenses in favour of the appellant However on overall consideration of the matter the appellant will be entitled to compensation as assessed in following terms:- 1. For pain and suffering : Rs.50,000/- 2. For loss of amenities in life : Rs.1,00,00/- 3. For loss of capacity which has compelled the appellant to keep one attendant : Rs.1,00,000/- Total : Rs.2,50,000/- This amount shall carry interest @ 7% per annum from the date of the filing of the claim petition till the payment is made. 7. For pain and suffering : Rs.50,000/- 2. For loss of amenities in life : Rs.1,00,00/- 3. For loss of capacity which has compelled the appellant to keep one attendant : Rs.1,00,000/- Total : Rs.2,50,000/- This amount shall carry interest @ 7% per annum from the date of the filing of the claim petition till the payment is made. 7. MAC Appeal No. 63 of 2011: In the claim petition, the appellant has asserted that she suffered serious injuries but she did not produce the medical records to establish the injuries, however, one injury report from the police docket in relation to Bokakhat P.S. Case No. 97 of 2002 has been submitted. In that report it is seen that the appellant had suffered simple injuries such as tenderness and swelling on her neck. The Tribunal has assessed the compensation at Rs. 10,000/-. 8. In terms of Section 168 of the Motor Vehicle Act, this Court considers it appropriate to enhance the said amount from Rs.10,000/- to Rs.25,000/- as the appellant has suffered pain and suffering and as well as a temporary disability from the said accident. The respondent No. 2 shall pay the said enhanced award to the said appellant within a period of two months from today in the Tribunal on deducting the sum, if any, has already been paid. 9. As the Tribunal has categorically held that the claimants are entitled to compensation to be paid by the insurer of the offending vehicle. Since the finding has remained unchallenged, the respondent No. 2, the insurer of the offending vehicle shall pay the awarded compensation in terms of the direction made herein. 10. For the reasons as aforesaid, the appeals being MAC Appeal No. 67 of 2008 and MAC Appeal No. 63 of 2011 are allowed to the extent as indicated above and the other appeal being MAC Appeal No. 64 of 2008 is disposed of with the observation as noted above. There shall be no order as to costs. Send down the LCRs forthwith.