Research › Search › Judgment

Gauhati High Court · body

2012 DIGILAW 46 (GAU)

Ram Narayan Singh v. Haradhan Chandra Das

2012-01-11

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal, under Section 173 of M.V. Act, 1988 is directed against judgment and award, dated 13.08.2004, passed by learned Member, Motor Accident Claims Tribunal, West Tripura, Agartala(Court No. 1), in Case No. T.S.(MAC) 357 of 2000. 2. Heard learned counsel, Mr. A. Pal for the appellant and learned counsel, Mr. P. Gautam for respondent No. 2, the United India Insurance Company. None appears for respondent No. 1. 3. Brief fact, necessary for disposal of the appeal, is that the appellant, constable No. 97254570, attached with 68 Bn. BSF, Gokulnagar, P.S. Bishalgarh, District-West Tripura, met an accident on 21.11.2009(Sunday) at about 1.50 pm on Agartala-Bishalgarh Road at Amtali Bazar. It is the case of the appellant that he was proceeding towards STD booth of Amtali Bazar, and at that time, all on a sudden, a commander jeep, bearing registration No. TR-01-3703, knocked him and some other passersby down on the footpath of the road, and, as a result, he sustained severe injuries on his head and other parts of the body. He was, at once, shifted to G.B. Hospital, Agartala, whereunder the Medical Board of the said hospital referred him to S.S.K.M. Hospital, Calcutta, and he was shifted to S.S.K.M. Hospital on 24.11.1999 as a stretcher patient and since there was no bed available in S.S.K.M. Hospital, Calcutta, he was shifted to Calcutta National Medical College and Hospital and undergone treatment as an indoor patient till 24.05.2000. After discharge also, he continued treatment in B.S.F. Hospital at Gwalior and also other hospitals and privately. He has suffered 75% permanent disablement of loss of speech due to the accident because of the head injury, which was diagnosed as Hemiparesis. He prayed for compensation of Rs. 31.00 lakhs. 4. Respondents contested the case by filing written statement before the Tribunal. Respondent No. 1, the owner of the vehicle, contended that the vehicle was insured with the United India Insurance Company, covering the date of the accident and that liability, if any, should be borne by Insurance Company. Respondent No. 1 denied the other averments made in the claim petition. Respondent No. 2, the United India Insurance Company also denied all the averments made in the claim petition but did not specifically deny the factum of insurance of the vehicle. 5. The Tribunal, considering the pleadings, framed the following issues:- 1. Respondent No. 1 denied the other averments made in the claim petition. Respondent No. 2, the United India Insurance Company also denied all the averments made in the claim petition but did not specifically deny the factum of insurance of the vehicle. 5. The Tribunal, considering the pleadings, framed the following issues:- 1. Whether Sri Ram Narayan Sing, claimant petitioner aged about 28 years was received personal injuries due to a motor accident on 21-11- 99 at about 1.50 p.m. at Amtali Bazar, under Amtali P.S. on Agartala-Bishalgarh Road due to rash and negligent driving of the vehicle No. TR01-3703 (Commander Jeep)? 2. Is the claimant-petitioner entitled to get any compensation under the M.V. Act. If so, what should be the quantum and who is liable to pay it? 6. In the course of trial, the claimant-petitioner examined himself as PW.1 and proved the documents in support of his claim, namely, a discharge certificate of Calcutta National Medical College and Hospital dated 24.05.2000, certified copy of FIR of Amtali P.S. Case No. 96 of 1999 dated 21.11.99, a photocopy of disablement certificate dated 28.05.2001, issued by the Civil Surgeon of District-Gwalior, injury report, collected by police in connection with the investigation of the police case and some other reports of radiological examination, CT Scan, and those were marked as Exbt.1 series. Respondents adduced no oral or documentary evidence. In his examination-in-chief, the claimant-petitioner stated thus:- On 21-11-99 at about 1.50 p.m. I was standing in front of Public Call Office at Amtali market on Agartala-Udaipur road. At that time one vehicle bearing No. TR-01-3703 which was proceeding towards Bishalgarh knocked down me, as a result I sustained injury on my head and other parts of my body. I was removed to G.B. Hospital, Agartala. I was treated in G.B. Hospital from 21-11-99 to 23- 11-99. I was referred to SSKM Hospital, Calcutta for better treatment and accordingly I was shifted to Calcutta on 24-11-99. As no seat was available at SSKM Hospital, Calcutta, I got myself admitted in Calcutta National Medical College and Hospital on 24- 11-99. Due to the said accident I became permanently disabled and to that effect a certificate has been issued from the Govt. Hospital, Bhopal declaring my disability to the tune of 75%. As no seat was available at SSKM Hospital, Calcutta, I got myself admitted in Calcutta National Medical College and Hospital on 24- 11-99. Due to the said accident I became permanently disabled and to that effect a certificate has been issued from the Govt. Hospital, Bhopal declaring my disability to the tune of 75%. I have submitted copy of FIR, discharge certificate issued from Calcutta National Medical College and Hospital, CT Scan report and disablement certificate along with injury report. On identification these are marked as Exbt.1 series. The claimant-petitioner was not cross-examined on behalf of the respondents. 7. Learned counsel, Mr. Pal has submitted that the Tribunal most illegally and wrongly did not consider the disablement certificate of the petitioner and did not award adequate compensation for the loss of income during the period of treatment, adequate compensation for pain and sufferings and no compensation was awarded for the disability suffered by the petitioner, as a result of the accident. Learned counsel, therefore, prayed for awarding adequate compensation. On the other hand, learned counsel, Mr. Gautam, appearing for the Insurance Company, has submitted that the claimant-petitioner was in service, and there was nothing on record that his service prospect affected in any manner because of the accident. The compensation awarded by the Tribunal may be considered as just and proper and the appeal should be dismissed with cost. 8. The accident is not disputed and it is proved with adequate evidence. It is also not disputed that the petitioner suffered injury due to the accident and that he was under treatment in G.B. Hospital at Agartala from 21.11.1999 to 24.11.1999 and that he was referred by the Medical Board of G.B. Hospital to S.S.K.M. Hospital, Calcutta, where he was admitted in Calcutta National Medical College and Hospital on 24.11.1999 and undergone treatment as an indoor patient till 25.05.2000. It is also not disputed that after discharge from hospital, the petitioner further continued treatment at B.S.F. Hospital, Gwalior and other places. The petitioner in his claim petition stated that he submitted bills for the cost of treatment to his authorities but did not include the expenditure incurred by him for his attendants and other incidental costs, while under treatment at Calcutta. The Tribunal awarded a lump sum amount of Rs. 60,000/- towards cost of treatment and the petitioner has no grievance. The Tribunal awarded Rs. 25,000/- towards pain and sufferings. The Tribunal awarded a lump sum amount of Rs. 60,000/- towards cost of treatment and the petitioner has no grievance. The Tribunal awarded Rs. 25,000/- towards pain and sufferings. Learned counsel, Mr. Pal has submitted that while the petitioner suffered grievous injury and was under treatment for more than five months, being hospitalized as an indoor patient, the amount of compensation towards pain and sufferings to the tune of Rs. 25,000/- is negligible and can in no way be said to be an adequate compensation. It is also submitted that the Tribunal did not consider the disablement certificate though it was marked as an item of Exbt.1 series as the Tribunal did not apply its mind. The Railway concession certificate issued by the Medical Officer was also filed and placed just above the disablement certificate and the Tribunal considered that paper but ignored the disablement certificate on record, which was marked as an item of Exbt.1 series. The Railway concession certificate was not exhibited. The photocopy of the disablement certificate was exhibited without objection by the respondents and since it was exhibited and taken in evidence in a case of compensation, the Tribunal would consider it and grant compensation to the claimant. In support of his contention, learned counsel, Mr. Pal relied on the case law of Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343 and submitted that the document, which was not challenged by the respondent, may be taken into consideration for determination of just compensation. 9. It is the settled principle of law that the Tribunal is to determine a just and reasonable compensation. The Apex Court in the case of Syed Basheer Ahamed & Ors. vs. Mohd. Jameel & Anr., reported in AIR 2009 SCW 493 as follows: The expression "which appears to be just" in S. 168 vests a wide discretion in the Tribunal in the matter of determination of compensation. nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation, the determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to them. in nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards. In view of the law annunciated by the Apex Court, a Tribunal is to examine the materials on record, placed by the parties and determine a reasonable and just compensation. 10. Since the claimant-petitioner prayed for compensation for the injuries sustained by him due to the accident, the Tribunal was required to award compensation, both for pecuniary damages and for special damages. In the case of R.D. Hattangadi vs. M/s Pest Control (India) Pvt. Ltd. & Ors., reported in AIR 1995 SC 755 , the Apex Court held thus: Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (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. 11. On perusal of the judgment passed by the Tribunal it appears that the Tribunal only awarded compensation towards cost of treatment, pain and sufferings and not on any other count. 12. Learned counsel, Mr. Pal agitated the point of non-consideration of compensation towards loss of income during the period of treatment. In the evidence adduced by the petitioner we find that the petitioner was hospitalized for the period from 21.11.1999 to 24.05.2000 i.e. for about five months. He was in service as a constable in the BSF. It is obvious that during that period he was on leave. The petitioner produced a salary certificate before the Tribunal, but that was not exhibited. The petitioner also stated nothing about loss of income during the period of treatment. Under such circumstances, in the absence of any evidence on record, no compensation can be awarded towards loss of income during the period of treatment. 13. Let us now see the compensation towards pain and sufferings. The petitioner is definitely entitled to get compensation for non-pecuniary damages towards mental and physical shock, pain and sufferings already suffered and likely to be suffered in future and the damages to compensate for the loss of amenities of life. The Tribunal has awarded only a meager amount of Rs. Let us now see the compensation towards pain and sufferings. The petitioner is definitely entitled to get compensation for non-pecuniary damages towards mental and physical shock, pain and sufferings already suffered and likely to be suffered in future and the damages to compensate for the loss of amenities of life. The Tribunal has awarded only a meager amount of Rs. 25,000/- on that count, while the petitioner was hospitalized for about five months and undergone treatment after discharge from hospital also, and the petitioner suffered severe head injury for which he has lost the capacity to speak to some extent, the amount seems to be inadequate, and therefore, considering the period of treatment and nature of injury, a consolidated amount of Rs. 50,000/-(rupees fifty thousand) is awarded towards mental and physical shock, pain and sufferings, already suffered and the damages for the loss of amenities of life. 14. No compensation was awarded by the Tribunal towards inconvenience, hardship, discomfort and disappointment, etc. The petitioner produced a photocopy of disablement certificate. In his deposition, he stated nothing as to why the photocopy is produced but the Tribunal accepted it and exhibited it with its seal and signature and that was not disputed by the respondents before the Tribunal, and so, it may be fairly taken into consideration for determination of compensation. The disability certificate shows that it was issued by the Civil Surgeon on 28.05.2001, certifying that the petitioner was suffering from post-head injury, namely hemiparesis with 75% of speech loss. Hemiparesis is a weakness of one side of the body. It may cause paralysis on one side of the body but the patient can move the impair side of the body with the reduced muscular strength. It may cause loss of skill, loss of word understanding and speech, loss of ability to distinct left or right, loss of short termed memory, etc. In the case of the petitioner, the disablement certificate shows that the petitioner suffered 75% loss of speech. There is nothing before us that the petitioner has been discharged from the service because of that injury sustained by him. No evidence to that effect adduced before the Tribunal. In the case of the petitioner, the disablement certificate shows that the petitioner suffered 75% loss of speech. There is nothing before us that the petitioner has been discharged from the service because of that injury sustained by him. No evidence to that effect adduced before the Tribunal. The Tribunal already held that the accident occurred in the year 1999 and the judgment was passed by the Tribunal in the year 2004 and during that time the petitioner continued his service, and therefore, it was presumed that the service of the petitioner was not affected for the accidental injury. In view of the materials on records, I find justification in the observation made by the Tribunal. While determining compensation for permanent disability or for disability to a certain percentage, the Tribunal should not mechanically apply the percentage of disability to determine the compensation, without considering the other attending factors, such as, whether the disablement is permanent or temporary and if the disablement is permanent, whether permanent total disablement or permanent partial disablement, and if the disablement percentage is expressed with reference to any specific limb, then the affect of such disablement of limb on the functioning of the entire body i.e. the permanent disability suffered by the person, and whether such disability has any bearing on the income of the person concerned at the relevant time of the accident. In the present case, there is nothing before us that the alleged disability affected the income of the petitioner in any manner. Under such circumstances, I find nothing to award any compensation for the disability (loss of speech) alleged to have suffered by the petitioner. However, it is apparent that the petitioner suffered inconvenience, hardship, discomfort, etc. for the loss of speech due to the accident, as already observed in the disablement certificate and the CT scan report and the injury report exhibited by the petitioner. On that count, I think, an amount of Rs. 25,000/- may be adequate compensation. 15. In view of the discussions made above, the appellant is entitled to a further amount of Rs. 50,000/-(rupees fifty thousand) as compensation. Respondent No. 2, the United India Insurance Company, as already held responsible to make payment of the compensation by the Tribunal, is directed to make payment of the compensation within 45(forty five) days from today, failing which it shall carry interest @ 9% per annum from today. 50,000/-(rupees fifty thousand) as compensation. Respondent No. 2, the United India Insurance Company, as already held responsible to make payment of the compensation by the Tribunal, is directed to make payment of the compensation within 45(forty five) days from today, failing which it shall carry interest @ 9% per annum from today. The MAC App. Accordingly stands disposed of.