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2013 DIGILAW 34 (GAU)

Narayan Chandra Banik v. Siddartha Sankar Ray and Ors.

2013-01-16

S.C.DAS

body2013
1. By this appeal filed under section 173 of M.V. Act, the appellant challenged judgment and award, dated 18.5.2002, passed by learned Member, Motor Accident Claims Tribunal, Sonamura, West Tripura, in case No. TS(MAC) 01/2001, in respect of quantum of compensation determined by the Tribunal. 2. Heard learned counsel, Mr. T. Datta Majumder for the appellant and learned counsel, Mr. P. Datta for respondent No.4. None appears for respondent Nos.1 to 3. 3. Fact, in short, for disposal of the appeal, may be noted, thus : On 11.6.1999, the appellant was travelling with a jeep vehicle, bearing No.TR-01-2887 from Bishramganj to Agartala and, at about 5.00 p.m., when the vehicle reached at a place, named Gokulnagar (Konaban turning), on Bishalgarh-Agartala road, another truck vehicle, bearing No.TRL-6055, was coming from opposite direction and, both the vehicles had a head on collusion for rash and negligent driving of both the vehicles and, as a result, the jeep vehicle collapsed on the road side, and the appellant and other passengers of the jeep vehicle sustained injuries. The appellant sustained severe injury in his right hand thumb and he was immediately shifted to IGM Hospital wherefrom he was taken to G.B. Hospital and he was treated in the G.B. Hospital as an indoor patient from 11.6.1999 to 19.6.1999. Thereafter also, he continued his treatment as per the advice of the doctors of the G.B. Hospital and also attending the local private doctor. His right thumb finger was amputated in the hospital because of the severe cut injury. He was a confectioner and used to earn Rs.3,000 per month and because of the injury and loss of his right thumb finger he became permanently disabled and could not earn any more for maintaining himself and his family members. He prayed for compensation of Rs. 13,74,000. The owners and insurers of the offending vehicles were arrayed as the respondents in the claim case and they filed their written statements as reflected in the judgment and award passed by the Tribunal. In course of enquiry/trial, the Tribunal framed two issues, namely - "(I) Whether Sri Narayan Ch. Banik, Claimant-petitioner, aged about 32 years received personal injury due to a road traffic accident on 11.6.1999 at about 5 p.m. at Gakulnagar on Agartala-Bishalgarh road under Bishalgarh P/S due to collision of vehicle Nos. In course of enquiry/trial, the Tribunal framed two issues, namely - "(I) Whether Sri Narayan Ch. Banik, Claimant-petitioner, aged about 32 years received personal injury due to a road traffic accident on 11.6.1999 at about 5 p.m. at Gakulnagar on Agartala-Bishalgarh road under Bishalgarh P/S due to collision of vehicle Nos. TR01-2887(Jeep) and TRL-6055(Truck) and whether the alleged accident occurred due to rash and negligent driving of both the vehicles? (II) Whether the Claimant-petitioner is entitled to get any compensation under M.V. Act, if so, what should be the quantum of compensation and who is liable to pay it?" Considering the evidence adduced by the parties in course of trial the Tribunal held that the accident occurred for the rash and negligent driving of both the vehicles and the petitioner suffered injury due to the accident. The Tribunal, based on the disablement certificate submitted by the petitioner, also held that the petitioner suffered 20% disability because of amputation of his right thumb finger. 4. As I find, the Tribunal awarded compensation on three counts, namely - (i) Towards cost of treatment : Rs. 5,000 (ii) Towards pain and suffering : Rs. 10,000 and (iii) Loss of income for the disablement : Rs.50,000 In total Rs.65,000 The Tribunal also held both the insurance companies, i.e., respondent Nos.2 and 4, who were the insurers of both the vehicles, responsible to make payment of the compensation with interest thereon, in equal share. 5. It is submitted by learned counsel, Mr. Datta Majumder that the Tribunal awarded a lump sum compensation of Rs. 50,000 towards loss of income without considering the disability suffered by him. The petitioner was a young man of 32 years at the time of accident and because of the loss of his right thumb finger he actually became permanently disabled for any sorts of hard work. The Tribunal was bound to ascertain just compensation for the loss suffered by the petitioner because of the accident. 6. On perusal of the impugned judgment passed by the Tribunal, it appears, the Tribunal has taken an easy course of determining a lump sum compensation without ascertaining the loss, based on the income and age of the petitioner at the time of accident. Such determination of a lump sum compensation cannot be held justified while there is evidence on record regarding the income of the petitioner and the disability suffered by him. Such determination of a lump sum compensation cannot be held justified while there is evidence on record regarding the income of the petitioner and the disability suffered by him. It is amply proved that as a confectioner he used to earn Rs.3,000 per month at the time of accident and he was aged 32 years. Discharge certificate of G.B. Hospital and the disability certificate issued by the competent authority have been placed on record. Discharge certificate shows that the petitioner suffered auto-amputation of his right thumb finger because of the injury and the disablement certificate shows that for such amputation of his right thumb he suffered 20% permanent disability. So, the compensation should be determined taking into account his income and a reasonable multiplier, applicable consistent with his age and, then, considering the percentage of disability. Since it is proved with materials on record that his monthly income was Rs.3,000, his yearly income stands at Rs.36,000. He was aged 32 years. So, a reasonable multiplier of sixteen may apply. For hundred per cent loss of income, the total compensation would be Rs.5,76,000 (Rs.36,000 x 16). Since the petitioner suffered 20% permanent disability, we may fairly take 20% of the amount and the amount stands at Rs. 1,15,200 and, in my considered opinion that should be the appropriate amount towards loss of income for the injury sustained by the petitioner. 7. Further, as I find, the appellant-petitioner has been awarded only Rs. 10,000 towards pain and suffering, no compensation was awarded by the Tribunal towards inconvenience, hardship, discomfort and frustration, etc. 8. The Apex Court, in the case of R.D. Hattangadi v. Pest Control (India) (P.) Ltd. and Ors., AIR 1995 SC 755 , has laid law as to how the pecuniary and non-pecuniary damages can be ascertained : "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 up to 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 up to 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." 9. In the case of Common Cause, a Registered Society v. Union of India and Ors., (1999) 6 SCC 667 , the Apex Court observed, thus : "128. The object of an award of damages is to give the plaintiff compensation for damage, loss or injury he has suffered. The elements of damage recognised by law are divisible into two main groups : pecuniary and non-pecuniary. While the pecuniary loss is capable of being arithmetically worked out, the non-pecuniary loss is not so calculable. Non-pecuniary loss is compensated in terms of money, not as a substitute or replacement for other money, but as a substitute, what McGregor says, is generally more important than money : it is the best that a court can do. In Medianna, In re., (1900) AC 1300, Lord Ilalsbury, L.C. observed as under : "How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident.... But nevertheless the law recognises that as a topic upon which damages may be given." 10. The Tribunal, while awarding compensation, would take into account the nature and gravity of the injury sustained by a victim of accident and award appropriate and/or just compensation. In the present case, as I find, the Tribunal only awarded compensation of Rs. But nevertheless the law recognises that as a topic upon which damages may be given." 10. The Tribunal, while awarding compensation, would take into account the nature and gravity of the injury sustained by a victim of accident and award appropriate and/or just compensation. In the present case, as I find, the Tribunal only awarded compensation of Rs. 10,000 for pain and suffering but nothing has been awarded towards inconvenience and hardship, the appellant-petitioner shall suffer for the rest of his life for the amputation of his right thumb finger. On that count, an amount of Rs.50,000 is awarded as compensation. Therefore, he is entitled to get compensation — (i) For the cost of treatment : Rs.5,000 (ii) For pain and suffering : Rs.10,000 (iii) For the inconvenience, hardship and : Rs.50,000 discomfort (iv) Pecuniary loss : Rs.1,15,200 In total : Rs. 1,80,200 The appellant-petitioner is entitled to get Rs.1,80,200 as compensation, which scorns to be just and reasonable. The respondent Nos.2 and 4, i.e., the Insu i .nice Companies, are responsible to make payment of the said compensation in equal share. The judgment and award made by the Tribunal to the extent as indicated above is interfered and the appeal to that extent is allowed. 11. It is submitted by learned counsel, Mr. Datta Majumder that so far information available to him, the appellant-petitioner already received the compensation, awarded by the Tribunal. If it is so, the rest of the amount as determined above, should be paid with 6% interest thereon from the date of presentation of the petition, i.e., 31.7.1999 and, the payment should be made within sixty days from today, failing which the amount shall carry interest @9% per annum. 12. A copy of the judgment may be made available to the learned counsel of the Insurance Companies for compliance. 13. Send back the L.C. records along with a copy of the judgment. _____________