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2017 DIGILAW 1387 (GAU)

Nur Mohammad v. Samir Sen

2017-10-30

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. A.R. Agarwala learned counsel for the appellant as well as Ms. M. Choudhury learned counsel for the respondent No.2. None appears on call for the respondent No.1. 2. Challenging the award on quantum of compensation, the appellant has filed this appeal under section 173 of the Motor Vehicles Act, 1988, challenging the judgment and award dated 04.04.2012 passed by the learned Member, Motor Accident Claims Tribunal, Dhubri in MAC Appeal No. 278/2003 and has prayed for enhancement of the award. 3. The case in brief is that on 16.10.2002 while the appellant/claimant along with one other person boarded a Mini Bus being registration No. AS-17-2544 at Agomoni for a journey to Halakura. At a place near Sonakhuli, the said bus met with an accident and rolled down by the side of the road. As a result of the accident, the appellant/claimant suffered various injuries including a fracture of the right fibula and injury on the back side. The appellant was admitted at Dhubri Civil Hospital from 17.10.2002 to 24.10.2002. Alleging that he had suffered permanent disability, the appellant claimed that he had spent a sum of Rs.20,000/- (Rupees Twenty thousand only) as on the date of filing the claim petition and prayed for compensation of Rs.2,00,000/- (Rupees Two lakh only). In the claim petition it was stated that the appellant was unable to walk and work after the accident, which has resulted in permanent disability. 4. The respondent No.2, who is the insurer of the offending vehicle, contested the case by filing written statement. Records reveal that the written statement was filed by the respondent No.2 on 04.03.2004. As per the judgment passed by the learned Tribunal, the respondent/opposite party No.1 had filed his written statement on 23.02.2007. However, as per the order dated 04.10.2007, the learned Tribunal did not accept his written statement. On a perusal of the said order the only reason for not accepting the written statement was that nobody was present on call for the opposite party No.1. According to this Court, that cannot be a good ground for not accepting the written statement on record. However, as the said order is not the subject matter of the present appeal and as the said order has not prejudiced the appellant or the respondent No.2 herein, this Court refrains from interfering with the said order at this stage. 5. According to this Court, that cannot be a good ground for not accepting the written statement on record. However, as the said order is not the subject matter of the present appeal and as the said order has not prejudiced the appellant or the respondent No.2 herein, this Court refrains from interfering with the said order at this stage. 5. Upon the pleadings, the following issues were framed for trial:- 1. Whether the accident took place due to rash and negligent driving by the driver of the offending vehicle? 2. Whether the claimant sustained injuries due to the accident arising out of use of the said vehicle? 3. Whether the claimant is entitle to get compensation? If so, to what extent. 4. Whether the claimant is entitled to get any other relief or relief’s? 6. In support of the claim, the claimant examined himself as CW1 and he was cross-examined by the insurer i.e. respondent No.2 herein. None of the opposite parties adduced any evidence in support of the defence. CW1 gave his evidence in terms of the claim petition. He had exhibited the following:- Exhibits-1 to 6 Medical prescriptions Exhibit-7 Discharge slip Exhibit-8 X-Ray report Exhibit-9 to 13 Cash memo totaling Rs.891.41p Exhibit-14 Accident Information Report and Exhibit-15 Medical Certificate. 7. The learned Tribunal held that although the claimant witness was subjected to long cross-examination, but his evidence as to multiple grievous injuries due to rash and negligence driving of the driver of the offending vehicle remained unchallenged. 8. The learned Tribunal did not find anything to disbelieve the evidence of the claimant and the said issues No. 1 and 2 were decided in favour of the claimant. In respect of the issues No. 3 and 4, which were taken up together, the learned Tribunal arrived at a finding that no document was exhibited by the claimant to permanent disability as contemplated under section 92-A of the Motor Vehicles Act and, as such, it was held that the claimant was entitled to compensation for grievous injuries and not for compensation for permanent disablement. It may be relevant to state here that the Motor Vehicles Act, 1988 (Bare Act of Universal Law Publishing Co. Pvt. Ltd. 2014 Edition) does not contain the said provisions of section 92-A of Motor Vehicles Act, 1988. Hence, reference to said provision by the learned Tribunal appears to be a typing error. It may be relevant to state here that the Motor Vehicles Act, 1988 (Bare Act of Universal Law Publishing Co. Pvt. Ltd. 2014 Edition) does not contain the said provisions of section 92-A of Motor Vehicles Act, 1988. Hence, reference to said provision by the learned Tribunal appears to be a typing error. Holding the income of the appellant to be Rs.3000/- per month as claimed, i.e. Rs.100/- per day, it was held that the appellant was entitled to compensation under the head of pain and suffering for 7 (seven) man-days of labour while he was in hospital, a sum of Rs.7000/- was awarded on account of loss and sufferings, the claimant was held to be also entitled to a sum of Rs.891.41p towards an expenditure made for his treatment. 9. In view of the decision of the issues No. 3 and 4 as stated above, the appellant/claimant was found to be entitled to an award of Rs.7892/- together with interest @ 6% per annum from the date of filing of the evidence on affidavit, which as per the Trial Court’s record, was filed on 08.09.2011. 10. Challenging the said award, the learned counsel for the appellant has referred to the evidence of the appellant (CW1) and has also referred to the various exhibits and the cross-examination of the said witnesses. It is submitted that it was stated in the evidence of the appellant/claimant that because of the injuries suffered, he had suffered partial permanent disability and he had specifically stated in his evidence on affidavit that after the accident, he could not do work for about one year. 11. The learned counsel for the appellant has further submitted that in view of the said evidence, the loss of income ought to have been assessed for the loss of income for the entire year and not for 7 days as was done by the learned Tribunal. It is further submitted that as the appellant was suffering for one year, he was taking continuous treatment. It is further submitted that as the appellant was suffering for one year, he was taking continuous treatment. However, coming from a rural background and residing in a remote village of the district of Dhubri, the appellant did not maintain cash memos for the expenditure but still considering the length of his disability, the appellant was entitled to loss of income for the entire year, and a lump sum amount for cost and pecuniary loss, as well as under head of pain and suffering, as well as towards cost of litigation. 12. As per the submissions made by the learned counsel for the appellant, the claimant was entitled to compensation on the aforesaid heads. 13. The learned counsel for the appellant further submits that as the claim petition was filed on 01.11.2003, the claimant was entitled to interest from the date of filing the claim petition and not from the date of filing the evidence on affidavit. 14. Per contra, the learned counsel for the respondent No.2 submits that although the case was filed on 01.11.2003 but the evidence on affidavit was filed on 08.09.2011 and therefore, the learned Tribunal was right in awarding interest from 08.09.2011. Considering the fact that the respondent No.2 had filed the written statement on 04.03.2004 and therefore, the delay was not on their account. It is further submitted that total value of the cash memo exhibited by the appellant marked as Exhibits-9 to 12 was Rs.891.41p rounded as Rs.892/- (Rupees Eight hundred and ninety two only). 15. As per the Exhibit-3 the amount spent on X-ray was Rs.280/-. Apart from that there was no document to prove any further expenditure by the appellant. The learned counsel for the respondent No.2 submits that the evidence on affidavit filed by the claimant witness No.1 was silent as to the precise period of time during which the appellant had taken treatment and the details of expenditure incurred thereon. It is also submitted that there was no evidence on the loss of any man-days by the appellant and therefore, on the basis of the documents proved, at the best the appellant could only demonstrate that he had loss of income during the time he had spent in the hospital between 17.10.2002 to 24.10.2002. It is also submitted that there was no evidence on the loss of any man-days by the appellant and therefore, on the basis of the documents proved, at the best the appellant could only demonstrate that he had loss of income during the time he had spent in the hospital between 17.10.2002 to 24.10.2002. Referring to the injury report at Exhibit-15, it is submitted that the appellant was under treatment of the said Doctor only from 20.12.2002, the date on which the certificate was issued. 16. It is submitted that reference to the X-Ray report showing crack on the lower end of shaft fibula and right leg and spondylisis of L3, L5 vertebral body is related to the X-ray report dated 19.10.2002 (Exhibit-8). It is submitted that no current X-ray was done as on 20.12.2002 to indicate that the said two cracks/fracture was not healed. It is also submitted that as per the discharge slip (Exhibit-7) there is nothing to show that at the time of discharge, the appellant was suffering from any disability. 17. The learned counsel for the respondent No.2 further submits that there is nothing on record to show that because of the fracture suffered by the appellant, any plaster was applied on the appellant. Therefore, the crack which is reflected in the X-Ray report (Exhibit-8) was merely temporary partially disability that cannot be held to be an injury which had brought about any permanent disability to the appellant. 18. Referring to the said X-ray report (Exhibit-8), the learned counsel for the respondent No.1 submits that the same was a photocopy and was not admissible any evidence. It is further submitted that there was no infirmity in the award passed by the Tribunal and, as such, the appeal may be dismissed. 19. Having heard the learned counsel for both sides this Court has perused the materials available on record. The expenditure for the X-Ray on 19.10.2002 is proved by the Exhibit-13. The said document (Ext.-13) as well as the X-Ray report (Exhibit-8) shows that the X-Ray was done in a private centre. However, there is no explanation by the appellant in his evidence as to why the X-Ray plate could not be proved in his evidence. 20. According to the opinion of this Court, the X-Ray report is merely the secondary evidence of the reading of the X-Ray plate by the Radiologist. However, there is no explanation by the appellant in his evidence as to why the X-Ray plate could not be proved in his evidence. 20. According to the opinion of this Court, the X-Ray report is merely the secondary evidence of the reading of the X-Ray plate by the Radiologist. In the absence of the X-Ray plate, the X-Ray report (Exhibit-8), which is a photocopy, does not inspire any confidence of this Court. In the present case no evidence was tendered to show why the original X-ray report could not be exhibited. Therefore, in the absence of the explanation as to the loss of destruction of the original X-ray reports, a photocopy marked as Exhibit-8 is not admissible. The injury report (Exhibit-15) does not mention that the crack on the lower end of the shaft of fibula of right leg was not healed. The said report clearly mentions that the appellant was suffering from injury on the right leg and spondylisis of L3 L5 vertebra. There is nothing to indicate that the spondylisis of L3 L5 vertebra was as a result of the road traffic accident. The Doctor does not certify in his certificate (Exhibit-15) that the appellant had suffered from disability which made him unable to carry out any work or profession. There is no evidence on record as to the nature of business done by the appellant and to what is the loss of man-days for his business. In the said injury report dated 20.12.2002 (Exhibit-15), the Doctor has mentioned that the patient was under his treatment from 20.12.2002. Therefore, the Doctor (PW2) was not the Doctor who had first treated the appellant. 21. On perusal of the affidavit filed by the appellant as CW1, he had stated that his profession was cultivation and in paragraph 7 thereon he stated that he was earning a sum of Rs.3000/- per month by doing cultivation as well as business without indicating either the name of his business or what was his nature of business. Therefore, there is no evidence on record to show what business the appellant was doing. According to this Court, in order to sustain claim for loss of income, the claimant must lead specific evidence of the nature of job he was carrying on at the time of accident, his income therefrom, and the specific period for which he was out of employment. According to this Court, in order to sustain claim for loss of income, the claimant must lead specific evidence of the nature of job he was carrying on at the time of accident, his income therefrom, and the specific period for which he was out of employment. There is no evidence in this case by which it can be inferred that his cultivation or business had come to a standstill while the appellant was lying injured. 22. In the absence of any affidavit to show the nature of work carried out by the appellant, and in absence of any evidence to show that the fracture in the leg had not healed at the time of filing the claim case, and in absence of Doctor’s opinion that the injured had suffered any disability, only a mere statement in the injury report (Exhibit-15) that the patient is having difficulty in walking and back-pain, in absence of radiologist’s opinion, does not make the contents of Exhibit-15 as an conclusive evidence of disability. Thus, this Court does not find any infirmity in the finding recorded by the learned Tribunal that the injuries had not resulted any permanent disability. There is no material available on record to arrive at a finding contrary to the one recorded by the learned Tribunal in respect of issues No. 3 and 4. Therefore, this Court is not inclined to enhance the award of Rs.7000/- on account of loss of pain and suffering as well as Rs.892/- on account of expenditure made during the treatment. However, on account of pain and suffering from the fracture suffering and the spondylisis as diagonised as well as on account of the cost of litigation, this Court is inclined to award a further sum of Rs.2108/- on account of these two heads so as to entitle the appellant a lump sum compensation of Rs.10,000/- in the aggregate. 23. In terms of the award passed by the learned Tribunal, the appellant shall be entitled to interest @ 6% per annum from the date of filing evidence on affidavit i.e. 08.09.2011 till realization of the entire compensation. 24. The appeal is partly allowed to the extent as indicated above by enhancing the award of compensation by an amount of Rs.2,108/- (Rupees Two thousand one hundred and eight only). 24. The appeal is partly allowed to the extent as indicated above by enhancing the award of compensation by an amount of Rs.2,108/- (Rupees Two thousand one hundred and eight only). The respondent No.2 i.e. the insurer is directed to deposit the entire compensation together with interest before the learned Motor Accident Claims Tribunal, Dhubri within a period of 6 (six) weeks from today, failing which the appellant shall be entitled to interest @ 12% per annum from the expiry of 6 (six) weeks from today. 25. Return back the LCR.