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Gauhati High Court · body

2015 DIGILAW 1524 (GAU)

New India Assurance Co. Ltd. v. Tokheswar Bora

2015-12-14

N.CHAUDHURY

body2015
JUDGMENT : This is an appeal under Section 173 of the Motor Vehicle Act, 1988 at the instance of New India Assurance Co. Ltd. against the judgment and award dated 27.1.2011 passed by the learned Member, MACT, Nagaon in MAC Case No.393 of 2005. By the impugned judgment and award, the learned Tribunal has directed the insurance company to make payment of Rs.7,23,805/- along with interest @ 6% per annum to the claimants from the date of institution of claim petition till realization. 2. The basic facts involved in the appeal are as follows. On 10.5.2005, the claimant was moving on a motor cycle driven by one Jiten Bora. Being a pillion rider, he noted that a truck was coming from opposite direction in a rash and negligent manner and collided with their motor cycle resulting in death of the motor cycle driver on the spot. He was also seriously injured and people who gathered at this spot took him initially to Nagaon Civil Hospital and thereafter to PKB Nursing Home at Haibargaon. This accident took place on 10.5.2005 at about 10.45 pm and on 16.5.2005, his right leg was amputed in the knee level. There was compound fracture of his right leg and ultimately he was released from hospital on 13.5.2005. But thereafter, once again some complication arose for which he had to be referred to GNRC, Guwahati for further treatment. The claimant who was a pillion rider claims to have made huge expenditure for his treatment. He claimed to be a qualified electrician earning Rs.7000/Rs.8000 per month and because of his amputation, his earning came down. He therefore filed claim petition against the offending truck bearing Registration No.AS-25/4199 along with the insurer, New India Assurance Co. Ltd.. He prayed for compensation to the tune of Rs.10 lakhs. He also impleaded United India Insurance Co. Ltd who was the insurer of motor vehicle No.AS-02-B-6832 on which he was a pillion rider. 3. On being notified, both the insurance companies appeared and submitted respective written statements entirely denying the case of the claimant. According to them, they were neither liable nor responsible to make payment of any compensation to the claimant at all. The income of the claimant, his occupation and even the factum of accident was denied by the insurance companies. 3. On being notified, both the insurance companies appeared and submitted respective written statements entirely denying the case of the claimant. According to them, they were neither liable nor responsible to make payment of any compensation to the claimant at all. The income of the claimant, his occupation and even the factum of accident was denied by the insurance companies. Upon such pleadings of the parties, the learned trial court framed the following four issues and asked the parties to lead their respective evidence:- (I) Whether the claim petition is maintainable? (II) Whether the claimant sustained grievous injuries in the accident, which was caused due to rash and negligent driving of the truck bearing No.As-25/4199? (III) Whether the claimant is entitled to compensation and if so by whom it is payable? (IV) To what relief, the parties are entitled? 4. Claimant examined himself as PW-1, Dr. Birinchi Kumar Bora as PW-3 and one Monesh Bora as PW-2 .Claimant produced and exhibited a series of documents to show that he incurred expenditure to the tune of Rs.83,805/- for treatment and that he has sustained injures. He also proved by examining witnesses as well as adducing documents that his right leg was amputed above the knee level. In course of examination in chief, he stated on oath that he was earning Rs.7000/- to Rs.8000/- per month but in course of cross examination, the insurance company did not put him a single question challenging quantum of his income or the basis thereof. Situated thus, his claim of income of Rs.7000/- to Rs.8000/- per month went unrebutted in evidence. Be that as it may, after consideration of the materials available on record, the learned tribunal arrived at the finding that claimant was pillion rider in the motor vehicle bearing registration No. As-02/B-6832 which met with an accident due to rash and negligent driving of the offending truck bearing registration No.AS-25/4199, that the claimant was physically disabled to the extent of 75% on the basis of Exhibit adduced by the claimant and that he was earning Rs.4000/- as monthly income. With these findings, compensation was calculated at Rs.5, 40,000/- by accepting 15 as multiplier. With these amounts, pecuniary loss of Rs.83,805/- was added and thus the total amount of compensation is Rs.7,23,705/-. This includes a sum of Rs.1 lakh awarded towards pain and suffering. With these findings, compensation was calculated at Rs.5, 40,000/- by accepting 15 as multiplier. With these amounts, pecuniary loss of Rs.83,805/- was added and thus the total amount of compensation is Rs.7,23,705/-. This includes a sum of Rs.1 lakh awarded towards pain and suffering. Having found that the offending vehicle was moving in a rash and negligent manner and that it was covered by valid insurance of New India Assurance ltd, the learned Tribunal directed the New India Assurance Ltd. to make payment of the amount along with interest @ 6% from the date of application till realization. It is this judgment and award dated 27.1.2011 which has been brought under challenge in the present by the New India Assurance Co. Ltd. 5. On being notified, the claimant has entered appearance and has filed a cross objection under Order XLI Rule 22 of the Code of Civil Procedure challenging the findings of the learned Tribunal in regard to his monthly income. It is the case of the claimant that he specifically pleaded in para-14 of his examination in chief that his monthly income was Rs.7000/- to Rs.8000/- before the accident but the insurance company did not put any question to him in course of cross examination which only goes to show that insurance company did not deny the fact as to his monthly income. According to the claimant, his monthly income of Rs.7000/- not having been disputed by the insurance company, the same stands unrebutted and accordingly, the learned tribunal ought to have considered Rs.7000/Rs.8000/- to be his monthly income but he arbitrarily fixed monthly income without there being any basis. The claimant therefore prays that the just compensation should be calculated by accepting Rs.7000/-/Rs.8000/- as the monthly income. 6. I have heard Mr. A Ahmed, learned counsel for the appellant and Mr. MH Rajbharbhuiyan, learned counsel for the claimant. I have perused the LCR including the deposition of the three witnesses of the appellant and the documents adduced by them. It is to be noted here that the insurance company did not adduce any evidence from its side. Mr. I have heard Mr. A Ahmed, learned counsel for the appellant and Mr. MH Rajbharbhuiyan, learned counsel for the claimant. I have perused the LCR including the deposition of the three witnesses of the appellant and the documents adduced by them. It is to be noted here that the insurance company did not adduce any evidence from its side. Mr. Ahmed, learned counsel for the appellant would argue that under Section 143 of the MV Act in a compensation case against permanent disablement , the quantum of compensation has to be assessed keeping in view the corresponding provision of Workmen Compensation Act (amended as Employees Compensation Act hereinafter referred to as Act). If this is done in that event it would be seen that for amputation below thigh, there is only 60% loss of earning capacity under Schedule-I of the Act. This being the position, learned tribunal committed error in making the calculation on the presumption that loss of earning capacity of the claimant was 75% depending upon the disability certificate given by the medical board constituted by the Social Welfare Department. This according to Mr. A Ahmed is untenable in law and the same is liable to be dismissed by allowing the appeal lowering the compensation amount. 8. I have perused the evidence of PWs . It is true that the claimant has suffered amputation of his right leg above knee Under entry No. 19 of the part-II of the Schedule-I of the Workmen Compensation Act, 1923, the percentage of loss of earning capacity is fixed at 60% for such amputation. Section 143 of the M.V. Act provides that the provision of Schedule-1 of the Act would apply to assessment of compensation against permanent disablement and for this purpose provision of the Workmen Compensation Act, 1923 with necessary modification is deemed to form part of the MV Act. Although no question was put to this witness about applicability of the Schedule-1 under the WC Act, yet Item No. 19 of Schedule-1 specifically shows that for such amputation, the loss of earning capacity would be 60%. Since in a similar legislation, loss of earning capacity has been earmarked by the statute, the same would be applicable in the present case and under such circumstances, it is to be held that learned tribunal had committed error in holding that claimant had lost 75 % earning capacity in the present case. Since in a similar legislation, loss of earning capacity has been earmarked by the statute, the same would be applicable in the present case and under such circumstances, it is to be held that learned tribunal had committed error in holding that claimant had lost 75 % earning capacity in the present case. This should have been 60% in terms of Entry No.19 of Part-II Schedule-I. 9. On the other hand, learned tribunal committed error in presuming that the claimant was having a monthly income of Rs.4000/- whereas he specifically pleaded and deposed in course of his deposition on oath that his monthly income is Rs.7000/8000 per month. The insurance company did not put any question to him in regard to his monthly income and so there was no reason on the part of the learned Tribunal not to believe the statement made by the claimant. The claimant’s plea of having monthly income of Rs.7000/8000 has gone unrebutted in the evidence in the absence of any challenge to that effect. The claimant was not challenged/or contradicted by the insurance company when he stood in the witness box and he had claimed of having monthly income of Rs.7000/Rs.8000/-. 10. Under such circumstance, the finding of the learned tribunal that the claimant was having monthly income of Rs.4000/- is held to be erroneous and the income of the claimant should have been accepted to be Rs.7000/- per month. 11. Having noticed the aforesaid two errors in the impugned judgment and award the just compensation payable to the claimant is re-assessed as follows:- His monthly income is Rs. 7000/- per month His loss of earning capacity is assessed at of 60% The multiplier for the purpose of calculation is 15 as he was 37 years of age at the time of the accident. The amount of compensation = Rs.7000 X 60% X 15 X 12= Rs. 7, 56,000/-. The finding of the learned trial court as to compensation towards pain and suffering to be Rs.1 lakh and medical expenses to be Rs.83805 is not interfered with. Accordingly, the total compensation comes to Rs.9, 39,805/-. This amount will carry interest @ 6% per annum from the date of filing of the claim petition till realization. At this stage it is submitted at the Bar that the claimant has already been paid a sum of Rs.3 lakhs. 12. Accordingly, the total compensation comes to Rs.9, 39,805/-. This amount will carry interest @ 6% per annum from the date of filing of the claim petition till realization. At this stage it is submitted at the Bar that the claimant has already been paid a sum of Rs.3 lakhs. 12. The insurance company shall make payment of the balance amount within 4(four) weeks from today with the Registry of this court and upon such deposit being made, claimant shall be entitled to withdraw the same subject to proper identification. 13. Appeal stands party allowed.