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2012 DIGILAW 1149 (GAU)

Shyambabu Singh v. Keshab Baruah

2012-09-28

SUBHASIS TALAPATRA

body2012
JUDGMENT Subhasis Talapatra, J. 1. This is an appeal by the claimant against the judgment and award dated 30.04.2007 passed by the Motor Accident Claims Tribunal. Tinsukia, in MAC Case No. 85 of 2004. The findings as returned by the Tribunal as regards the accident that occurred on 14.01.2004 while the claimant was driving the Night Super Bus bearing registration No. AS-01-E-8269 from Tinsukia to North Lakhimpur and the said vehicle was dashed by another Truck bearing registration No. ASE-5545 having been driven rashly and negligently, injuries as received by the appellant in the said accident and the insurance cover of the said bus vehicle by the New India Assurance Company Ltd. and of the other vehicle (truck) by the United India Insurance Company Ltd. are not in dispute by either of the parties or in the appeal. As such those findings stand affirmed requiring no further appraisal. 2. The questions those have been raised in the appeal are related to the assessment of the compensation and its components. 3. Mr. G. Jalan, learned counsel appearing for the appellant submitted that for the disability suffered by the appellant, he has been ousted form his occupation of driving the heavy vehicle. It would be apparent form the Exbt. 5 document as issued by Dr. J. Mukhopadhya that for the total replacement of hip, the appellant cannot sit crossed-leg or squat. The appellant had developed permanent disability and he advised no to do any strenuous work. Apart that, it appears from the deposition of the C.W. (the appellant) that he had to incur medical expenses to the extent of Rs.85,936/-. 4. Mr. G. Jalan, learned counsel appearing for the appellant submitted further that unless the appellant can drive the heavy motor vehicle he would not be able to earn anything from any other occupation and the injuries as received in the said accident has made him permanently disabled so far the occupation is concerned. But the Tribunal has not assessed that aspect of the matter while determining the compensation. 5. On the other hand, Mr. S. Dutta, learned counsel appearing for the respondent No. 3 has stated that the Tribunal has shown sufficient benevolence and awarded a sum of Rs.90,000/- for medical expenses and Rs.80,000/- for the pain and sufferings whereas the claimant in the Tribunal claimed no amount for pain and sufferings. 6. 5. On the other hand, Mr. S. Dutta, learned counsel appearing for the respondent No. 3 has stated that the Tribunal has shown sufficient benevolence and awarded a sum of Rs.90,000/- for medical expenses and Rs.80,000/- for the pain and sufferings whereas the claimant in the Tribunal claimed no amount for pain and sufferings. 6. On appreciation of the rival contentions as advanced by the counsel for the parties as well as on scrutiny of the records, this Court is of the opinion that the assessment requires a revisit for purpose of determining the just compensation. It has come to the fore that the Tribunal did not give any amount on the components of loss of earnings, loss of future amenities, expectation of life and cost for future treatment etc. The appellant, however, could not establish by evidence the rate of the disability he suffered from the said accident. But from the description as recorded in the Exbt. 5 document, it appears that the appellant has suffered the permanent disability to the extent of 50%. Since there is no opinion that the appellant cannot earn anything from other occupation, the loss of earning would also be determined proportionate to the physical disability. The appellant has claimed his monthly income at Rs.7,000/- per month as the heavy vehicle driver. However, in support thereof, he did not adduce any documentary or corroborative evidence. As a result, his monthly income is calculated at Rs.5,000/-. It appears that the appellant was aged about 50 years at the time of accident. Therefore, the appropriate multiplier would be 11'. Thus the total loss of earning would be (Rs.5,000 x 12 x 50%) x 11 = Rs.3,30,000/-. With the said sum an amount of Rs.90,000/- be added as medical expenses, Rs.50,000/- for pain and sufferings and another sum of Rs.50,000/- for loss of amenities in life and for discomfort and Rs.30,000/- as the cost of future treatment. Thus the total compensation comes to Rs.5,50,000/-. The said amount shall carry interest @ Rs.6% per annum from the date of filing of the claim petition till the payment is made. The insurer of the offending Truck vehicle, the United India Insurance Company Ltd. shall pay the entire awarded sum as there is no proof of contributory negligence against the bus vehicle which was being driven by the appellant. 7. The insurer of the offending Truck vehicle, the United India Insurance Company Ltd. shall pay the entire awarded sum as there is no proof of contributory negligence against the bus vehicle which was being driven by the appellant. 7. The findings of the Tribunal as arrived at on res ipsa liquotor cannot be sustained and accordingly the same is interfered with. There is no application for res ipsa liquotor when the definite evidence Has been laid showing how the accident occurred. 8. For the reasons as aforesaid, the appeal stands allowed to the extent as indicated above. 9. The respondent No. 3, The Untied India Insurance Company Ltd. shall pay the entire awarded sum with interest within a period of 2(two) months from today in the Tribunal on deducting the sum, if any, paid by now. Send down the LCRs forthwith.