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2014 DIGILAW 341 (GAU)

RAHUL KALITA v. REGIONAL MANAGER

2014-03-20

N.CHAUDHURY

body2014
ORDER 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the claimant praying for enhancement of the awarded sum. 2. The factual matrix on which this appeal is based is simple. The appellant was the claimant before the learned Motor Accident Claims Tribunal, Kamrup at Guwahati. He used to run hardware business at Malaibari within the district of Kamrup. On 29.03.2003 while he was moving from Paltan Bazar to his native village at Malaibari by bus bearing Registration No. AS-25C-4224, the bus met with an accident and turned turtle on the road near Nazirakhat. According to the claimant, the vehicle was moving in rash and negligent manner. The claimant sustained multiple injuries and his right ulna was severely fractured. According to the claimant the offending vehicle was covered by insurance of the respondent No. 1 company and that the driver possessed a valid driving licence. The insurance company on being summoned appeared and submitted written objection disputing all allegations made in the claim petition and claimed that the accident was an outcome of hit and collision between the aforesaid bus and another truck bearing Registration No. AS-25A-6952. The respondent No. 1 denied any liability in the case. The learned Tribunal framed as many as 2 issues and they are quoted below: 1. Whether victim Sri Rahul Kalita sustained injuries as a result of the road accident dated 29.03.2003 involving the passenger bus bearing Registration Number AS-25C-4224 and whether the said mishap took place due to rash and negligent driving of the bus driver? 2. Whether the claimant is entitled to receive any compensation as prayed for, and if yes, from whom and to what extent? 3. Claimant was examined as PW1 whereas one Dr. P.K. Padmapati, an Orthopaedic Surgeon was examined as PW2. The respondents did not adduce any evidence in support of their pleadings. Upon perusal of the materials available on record the learned tribunal decided issue No. 1 in favour of the claimant and held that the victim Rahul Kalita sustained injuries as a result of the road accident which occurred on 29.03.2003 involving bus bearing Registration No. AS-25C-4224 and that the accident took place owing to rash and negligent driving of the bus driver. Having held so, the learned tribunal proceeded to assess the compensation payable to the claimant on the basis of the materials available on record. Having held so, the learned tribunal proceeded to assess the compensation payable to the claimant on the basis of the materials available on record. The learned tribunal held that the victim sustained compound fracture on the right ulna for which he had to undergo surgical operation in Gauhati Medical College Hospital. He was also confined to hospital w.e.f. 29.03.2003 to 09.05.2003 for a long period and thereafter he had undergone treatment in Popular Nursing Home, Patna in this connection. The claimant adduced vouchers to show that he had incurred expenditure of Rs. 46,000/- in medicines, transport etc. The learned tribunal also noted that in course of his deposition claimant claimed that his monthly income was about Rs. 4,200/- from the hardware shop named as M/s. Kalita Hardware. He also stated in course of his evidence that because of the accident he cannot work because of the 40% disability suffered by him. Learned tribunal noted that because of the aforesaid accident, there was difficulty in movement of the wrist joint of the claimant and as such the tribunal was satisfied that he was not in a position to bend and the learned trial Court came to the conclusion that such injuries were unlikely to make any dent in the business income of the injured. However, discussing the evidence laid down by PW2, Dr. P.K. Padmapati, the learned tribunal held that physical disability of the claimant was to the extent of 40 percent. Thereafter the learned tribunal assessed the compensation at Rs, 1,10,000/- by making the assessment of his loss of amenities in life due to permanent disability at Rs. 40,000/- and pain, shock and sufferings at Rs. 24,000/-. 4. I have heard Mr. D.K. Kalita, learned counsel for the appellant and Mr. B. K. Purkayastha for the respondent No. 1. Other respondents have not appeared despite service of notice. 5. The judgment dated 24.04.2008 passed by the learned tribunal is based on two findings of fact: 1. The victim/claimant sustained injury owing to rash and negligent driving of the offending bus bearing Registration No. AS-25C-4224. 2. The injury caused in the accident is a one of permanent disability to the extent of 40%. 6. No cross objection under Order XLI Rule 22 of the Code of Civil Procedure has been filed either by the insurance company or by the owner or the driver. 2. The injury caused in the accident is a one of permanent disability to the extent of 40%. 6. No cross objection under Order XLI Rule 22 of the Code of Civil Procedure has been filed either by the insurance company or by the owner or the driver. There is no challenge against aforesaid two findings of fact. In this appeal praying for enhancement of the awarded amount, therefore, the task that has been taken is to find-out as to what is the quantum of loss of income occasioned due to the accident and the consequent permanent disability caused to the claimant. In his evidence PW1 has stated that he runs a hardware shop under the name and style of M/s. Kalita Hardware. He claimed that his income was Rs. 4,200/- per month. According to him in view of the injuries sustained he now cannot work. This part of the evidence of the PW1 was not challenged by the respondent insurance company at the time of cross-examination. Rather cross-examination was declined by the respondent insurance company both in case of PW1 as well as PW2. So the evidence led by the appellant that now he cannot do any work has to be accepted. Although the question as to incident of physical disability of the appellant to the extent of 40% is beyond dispute yet it is not permissible to accept 40% physical disability to be 40% loss of earning capacity of the insured. Co-relation between physical disability and loss of earning capacity came-up for consideration in number of cases before the Hon’ble Supreme Court. In the case of Raj Kumar v. Ajay Kumar reported in (2011) 1SCC 243 the Hon’ble Supreme Court had considered the aspect of co-relation between physical disability and loss of earning capacity of victim. It is held that in some cases loss of earning capacity owing to an accident may be same as that of permanent disability but it cannot be an established formula and it may vary from case to case. Referring to the aforesaid judgment in the case of Syed Sadiq Etc. v. D.M., United India Insurance Company decided on 16.01.2014 in Civil Appeal No. 662-664/2014 the Hon’ble Supreme Court held that assortment of compensation in such cases has to be done in three steps. First, whether claimant is totally disabled from earning any kind of livelihood? Referring to the aforesaid judgment in the case of Syed Sadiq Etc. v. D.M., United India Insurance Company decided on 16.01.2014 in Civil Appeal No. 662-664/2014 the Hon’ble Supreme Court held that assortment of compensation in such cases has to be done in three steps. First, whether claimant is totally disabled from earning any kind of livelihood? Secondly, whether claimant is capable of carrying on activities effectively and functions as before in respect of disability? Thirdly, whether claimant is prevented from doing work as before but still can do some activity which may be less than the previous activities? 7. On the face of the aforesaid law laid down by the Hon’ble Supreme Court, it is incumbent on the part of the claimant to bring on record material by leading evidence so as to enable learned tribunal to arrive at a finding of the aforesaid three steps. Here in this case, the claimant had stated on oath that he was not in a position to work anymore. On the other hand it is the evidence of PW2 that his permanent disability owing to fracture of right ulna is 40% only. Considering the nature of injury it is difficult to accept the contention of the appellant that his income has totally stopped. A young person of 21 years having fracture on the right ulna cannot be devoid of any income as claimed but in the absence of any specific evidence to the extent that the income of the appellant has substantially come down nothing could be presumed by the tribunal. 8. However, one thing is striking that the appellant remained hospitalised for a period w.e.f. 29.03.2003 to 09.05.2003 that is about 1 month 10 days. Even thereafter he was under treatment of Popular Nursing Home, Patna. It is also on evidence that the medical treatment at Guwahati was not sufficient for the appellant to recover and he had to go to Patna to Mukhopadhaya Orthopaedic Clinic and Research Centre. The prescriptions brought on record by exhibits show that the treatment of the petitioner continued atleast till 05.03.2004 which means that the claimant was unable to pursue any income for nearly 1 year. Even if it is accepted that his monthly income was to the extent of Rs. 4,200/- in that event his loss of income for the treatment period is only Rs. 4,200/- multiplied by 12 = Rs. 50,400/-. Even if it is accepted that his monthly income was to the extent of Rs. 4,200/- in that event his loss of income for the treatment period is only Rs. 4,200/- multiplied by 12 = Rs. 50,400/-. It is needless to say that during this period the claimant had to go to Patna and had to incur expenditure. What has been brought on record is only the expenditure towards purchase of medicine. It cannot be denied that an injured person was definitely accompanied by some attendant and there was some expenditure in his movement as well as maintenance in a place like Patna. None of these considerations have figured in the judgment passed by the learned tribunal. The Motor Vehicle Act, 1988 is a beneficial feature of legislation to pull out the distress persons who got victimised in accidents. Here is a case where a young entrepreneur who was running his family on the basis of a petty business of hardware had to remain busy for treatment of his injuries for over a year and during that period he had no income. A petty businessman who runs the shop by himself without aid of any employee has definitely to bank on his physical capacity. Once he is having permanent disability to the extent of 40%, there is definitely some corresponding loss of income from his business even it is held that he has been effectively running his business at present. 9. Considering all these aspects of the matter, even on a conservative estimate the claimant shall be entitled to another amount of Rs. 1 lakh for the aforesaid accident. This alongwith the loss of income to the extent of Rs. 50,400/- as referred to above, a further sum of Rs. 1,50,000/- should be paid to the claimant. 10. Accordingly this appeal is allowed and the awarded compensation is enhanced by Rs. 1,50,000/-. 11. The aforesaid amount shall be paid by respondent No. 1 within a period of 2 months from today. 12. No order as to costs.