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2013 DIGILAW 483 (GAU)

Surajit Neog v. Jainex India Ltd.

2013-07-24

BROJENDRA PRASAD KATAKEY

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JUDGMENT Brojendra Prasad Katakey, J. 1. This appeal by the claimant, in MAC Case No. 534/1996, is for enhancement of the compensation awarded by the learned Member, Motor Accident Claims Tribunal, Kamrup at Guwahati, vide order dated 10.10.2002, whereby and whereunder an amount of Rs. 3,54,200/- has been awarded as compensation for the injuries sustained by the claimant/appellant along with the interest @ 9% per annum from the date of filing the claim petition till the date of payment and directing the respondent No. 3, National Insurance Company Ltd. to satisfy the said award, there being a contract of insurance between the owner of the offending vehicle and the insurance company. The appellant as claimant filed an application under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 9,80,000/-, contending inter alia that on 27.04.1996 when he was travelling in the vehicle bearing Registration No. AS-01/D-0889 (Armada vehicle), a truck bearing Registration No. AS-01/C-8623 driven in a rash and negligent manner and coming from the opposite direction dashed against the Armada vehicle and as a result of which the appellant and other inmates of the said vehicle received grievous injuries and were hospitalized. It has further been pleaded that the appellant was completely bed ridden since the date of accident, who was advised absolute bed rest for 2(two) weeks, no walk for 8(eight) weeks and to review after 8(eight) weeks. The further contention is that he has not recovered fully from the injuries and as a result of the injuries sustained on his right leg, he became permanently disabled. 2. The claim of the appellant has been opposed by the insurance company by filing written statement putting the claimant to prove his contention in the claim petition. 3. The appellant in order to prove his case examined 3(three) witnesses including himself and proved 3(three) documents, namely, the first information report lodged with Jagiroad Police Station on 27.04.1996 (Ext.-1), the charge-sheet filed by the investigating agency (Ext.-2) and the seizure list issued by the investigating agency (Ext.-3). The certificate relating to the 50% permanent disablement has also been produced before the Tribunal. Neither the owner nor the insurance company adduces any evidence. The witnesses examined by the appellant, however, have been cross-examined by the insurance company. 4. The learned Member, upon appreciation of the evidence on record, both oral and documentary, awarded an amount of Rs. The certificate relating to the 50% permanent disablement has also been produced before the Tribunal. Neither the owner nor the insurance company adduces any evidence. The witnesses examined by the appellant, however, have been cross-examined by the insurance company. 4. The learned Member, upon appreciation of the evidence on record, both oral and documentary, awarded an amount of Rs. 3,54,137/- as compensation on the following breakup:- The said amount, however, has been rounded to Rs. 3,54,200/-. Hence the present appeal by the claimant. 5. I have heard Mr. S. Dutta, learned counsel for the appellant and Mr. B.K. Purkayastha, learned counsel appearing for the respondent No. 3. None appears for the other respondents despite service. 6. Neither the owner of offending vehicle nor the driver or the insurance company have challenged the finding recorded by the learned Member, MACT in the aforesaid award dated 10.10.2002 passed in MAC Case No. 534/1996 and hence they have admitted the factum of accident, the injuries sustained by the appellant in the said accident, the hospitalization, nature of injuries, the income and also the contract of insurance between the owner of the offending vehicle as well as the respondent insurance company. Hence this Court need not go into the said aspects in the present appeal. 7. As noticed above, the appeal has been filed for enhancement of the amount of compensation awarded. 8. Mr. Dutta, the learned counsel for the appellant referring to the impugned award has submitted that it appears there from that though the appellant has suffered a lot because of the injuries sustained by him in the accident resulting in the 50% permanent disablement, only an amount of Rs. 1,00,000/- and Rs. 50,000/- for loss of expectation of life and permanent disablement, respectively, have been awarded, which requires enhancement at least by another Rs. 1,00,000/-. 9. On the other hand, Mr. Purkayastha, the learned counsel appearing for the respondent insurance company submits that in the absence of any proof relating to the permanent disablement suffered by the appellant, the learned Member ought not to have awarded anything towards the permanent disablement. It has also been submitted that an amount of Rs. 1,00,000/- has rightly been awarded by the learned Member for loss of expectation of life. Hence according to the learned counsel, the Tribunal has awarded the amount, which is more than the amount to which the appellant is entitled to. It has also been submitted that an amount of Rs. 1,00,000/- has rightly been awarded by the learned Member for loss of expectation of life. Hence according to the learned counsel, the Tribunal has awarded the amount, which is more than the amount to which the appellant is entitled to. 10. This Court, though on a number of occasions, had directed the Tribunal to send the record by special messenger, the said record has not been transmitted to the Registry of this Court, though the appeal is pending for last about 10(ten) years. The learned counsel appearing for the parties have submitted that as per their instruction, in fact, the record of MAC Case No. 534/1996 is missing and could not be traced out, which is the reason for which the said record has not been transmitted to the Registry of this Court. The learned counsel further submit that they do not have the copies of the depositions of the witnesses examined in the Tribunal and also the documentary evidence proved before the Tribunal so as to enable the Tribunal or this Court to reconstruct the record. That being the position, the appeal has to be taken up for hearing and disposal on the basis of the materials made available before this Court along with memorandum of appeal, i.e. the award passed by the Tribunal alone. 11. It appears from the aforesaid award that the appellant in the said accident has suffered grievous injuries. There was fracture of the bone on the right hand as well as the right leg, apart from the injuries on the right eye lid. The appellant had to be hospitalized, immediately after the accident in HPC Hospital, Jagiroad and later on he was admitted in Dispur Polyclinic, Guwahati, and was treated from 27.04.1996 to 20.05.1996. The appellant was operated upon twice, firstly during his treatment for the aforesaid days and thereafter again in the month of July, 1996 in Dispur Polyclinic. During the course of treatment the plates and the nails were also fixed to cure the fracture injury on the right leg, which were subsequently removed. The grafting on the right eye lid was also done twice in Dispur Polyclinic. It is also evident that the appellant was on bed rest for about 5(five) months, who, however, was subsequently selected and appointed as Junior Engineer, in which post he joined on 02.04.1998. The grafting on the right eye lid was also done twice in Dispur Polyclinic. It is also evident that the appellant was on bed rest for about 5(five) months, who, however, was subsequently selected and appointed as Junior Engineer, in which post he joined on 02.04.1998. The appellant has also produced a permanent disablement certificate certifying his disablement as 50%, which, however, has not been proved. 12. Having regard to the nature of injuries sustained by the appellant and also the duration of the treatment, I am of the view that the appellant would be entitled to a further lump sum amount of Rs. 50,000/- towards cost for further treatment etc., in addition to the amount which has already been awarded. 13. The appellant would, therefore, be entitled to an amount of Rs. 4,04,200/-. Since the amount of Rs. 3,54,200/- has already been paid to the appellant along with the interest, the remaining amount of Rs. 50,000/- shall be paid by the respondent No. 3 to the appellant with interest @ 9% per annum from the date of filing the claim application till the date of payment. The insurance company is directed to pay the said amount along with the interest accrued thereon within 1(one) month from today. The appeal is accordingly allowed to the extent as indicated above. Appeal allowed