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2014 DIGILAW 30 (GAU)

Tapan Dutta v. Muktar Ahmed

2014-01-09

INDIRA SHAH

body2014
ORDER On 28.9.2001 when the claimant-appellant herein, driving his scooter was on his way from Makum to Tinsukia, the bus bearing registration No. AMB-3189 coming from same direction dashed the scooter from its behind. The claimant had undergone treatment at Assam Medical College at Dibrugarh where his lower limb of left leg was imputated and he continued his medical treatment. With such description of the accident and also the consequences ensuing therefrom, the claimant make an application under Section 166 of the Motor Vehicle Act, 1988 (in short the M.V. Act) seeking compensation of Rs. 5,80,284/-. This application gave rise to MAC No. 46/2002. Although, owner and driver of the bus filed their written statement, they did not contest the further proceeding. The Insurer Oriental Insurance Company Ltd., resisted the claim. 2. By award dated 13.9.2004, passed in MAC No. 46/2002, aforementioned, the learned Member, Motor Accident Claims Tribunal, Tinsukia has granted in al Rs. 1,36,000/- as compensation with simple interest at the rate of 8% per annum from the date of making of the claim application until realization of the entire awarded amount. Dissatisfied by the quantum of award, so passed, the claimant has preferred the present appeal, on the ground inter alia, that the quantum of compensation awarded the learned Tribunal is not adequate and the same may be enhanced. 3. Heard, Mr. B. Sarma, learned for the appellant and Mr. S. Dutta, learned counsel appearing on behalf of the respondent. 4. Presenting the case on behalf of the appellant Mr. Sarma has submitted that the claimant was working under M/S Assam Electricals and M/S Sharma & Co. and was getting Rs.2,000/- per month, from M/S Sharma & Co., the other firm his income was Rs. 1,500/- per month. Due to his permanent disablement his salary from 2,000/- was reduced to Rs. 1,500/- and he had to stop his part time job at M/S Sharma & Company. Therefore, his pecuniary loss was Rs. 2,000/- per month. But the learned Tribunal held that as the claimant failed to examine any witness from M/S Sharma & Company to prove that he was unable to work after the accident the claimant suffered financial loss of Rs. 500/- per month only. It is submitted that the learned tribunal failed to consider the future prospect of the claimant. 5. Controverting the above submissions, made by the learned counsel for the appellant, Mr. 500/- per month only. It is submitted that the learned tribunal failed to consider the future prospect of the claimant. 5. Controverting the above submissions, made by the learned counsel for the appellant, Mr. Dutta, learned counsel appearing on behalf of the respondent submitted that in absence of any corroborative evidence, the learned Tribunal rightly assessed the loss of income of the claimant and the award passed in favour of claimant needs no interference. 6. Before entering into the merit of the rival submissions made on quantum of adequacy of the compensation amount awarded by the learned Tribunal, it is relevant to mention the case of Yadava Kumar Vs. Divisional Manager, National Insurance Co. Ltd. & another (2010) 10 SCC 341 wherein it was held:- “The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, wheras compensation stands as a slightly higher footing. It is for atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation.” 7. In the case of R.D. Hattangadi Vs. Post Control (India) Pvt. Ltd. 1995 ACJ 366(SC) it was held that while fixing the 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 are capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages may include expenses incurred by the claimant for (i) medical treatment and attendance; (ii) loss of earning of profit upto the date of trial; and (iii) other material loss. Pecuniary damages may include expenses incurred by the claimant for (i) medical treatment and attendance; (ii) loss of earning of profit upto the date of trial; and (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensation of the loss of amenities of life which may include a variety of matter i.e., when on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life; when on account of injury, the normal longevity of the person concerned in shortened; and (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. 8. Keeping in view the fact that the claimant sought for compensation on the ground of injuries sustained by him resulting into his disability, it is to be determined first as to what the pecuniary loss, if any, has been sustained by the claimant due to the said accident and what not pecuniary damages, if any, he deserves to be awarded. 9. The claimant in his evident deposed that before the accident took place, he was working in two firms and used to earn Rs. 3,500/- per month. After imputation of his lower limb he stopped working in the firm M/S Sharma & Company wherefrom he was getting Rs. 1,500/- per month. He was paid Rs. 2,000/- by another firm M/S Assam Electricals but his salary has been reduced from 2,000/- to Rs. 1,500/-. He could not prove that he was also working at Sharma & Company. Learned Tribunal therefore calculated the loss of income as Rs.500/- per month only. Thus taking the loss of annual income of Rs. 6,000/-, the learned Tribunal applied 13 as multiplier and calculated the loss of income of the claimant to the tune of Rs. 78,000/-. To this 12 month salary of Rs. 24,000/- was also added. The medical expenditure of Rs. 19,000/- and further sum of Rs. 15,000/- for pain & suffering were added. On giving utmost consideration this Court does not find any arbitrariness in the assessment of the compensation. 10. At the same time thinks that Rs. 78,000/-. To this 12 month salary of Rs. 24,000/- was also added. The medical expenditure of Rs. 19,000/- and further sum of Rs. 15,000/- for pain & suffering were added. On giving utmost consideration this Court does not find any arbitrariness in the assessment of the compensation. 10. At the same time thinks that Rs. 15,000/- on account of pain and suffering may not be adequate considering the fact that he claimant lost on part of his lower limb and for that he deserves at least 50,000/- not only for pain & suffering but also for loss of amenities of life. The total compensation this came to a sum of Rs. 78,000.00+ 24,000.00+ 19,000.00+50,000.00= 1,71,000.00. 11. The appeal is accordingly allowed in part with enhancement of compensation from Rs. 1, 36,000.00 to 1, 71,000.00. So far as the interest in concerned I am not inclined to interfere with the interest awarded by the learned Tribunal. 12. Send down the LCR along with a copy of this judgment.