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2017 DIGILAW 172 (TRI)

Sikha Malakar, W/O. Shri Rashik Malakar v. Monoranjan Rudrapal, S/O. Shri Manindra Rudrapal

2017-03-22

T.VAIPHEI

body2017
JUDGMENT & ORDER : Dissatisfied with the award of Rs. 1,48,905/- passed by the learned Member, Motor Accident Claims Tribunal (Court No. 2), West Tripura in Title suit (MAC) No. 234 of 2009, this appeal is preferred by the appellant for enhancement of the compensation. 2. The case of the appellant, in brief, is that on 28-8-2008, when the appellant was proceeding to her place of work on foot, at about 9-30/10 AM, she was knocked down by Maruti Gypsy bearing registration No. TR-04-658 coming from behind near Jaharnagar Chowmohani along Assam-Agartala road and dragged her for about 15/20 cubits and ran over the lower portion of her body thereby causing serious injuries to her. She was then immediately shifted Kulai PHC in an unconscious condition, but was referred to AGMC & GBP Hospital for better treatment due to the seriousness of her injuries. She was admitted at that Hospital and was treated there from 28-8-2008 to 29-9-2008. At the time of her discharge, she was, however, advised to attend the OPD of the Hospital after fifteen days. During the period of her treatment, she underwent two major operations. She was again admitted to the same Hospital as indoor patient on 16-10-2008 and was discharged on 21-10-2008 with an advice to attend OPD of the Hospital regularly. Till the time of filing the claim petition, she was under the treatment of Orthopaedic Surgeon of AGMC & GBP Hospital, Agartala and Kulai Hospital. Ultimately, she became permanently disabled. The accident took place due to the rash and negligent driving of said Maruti Gypsy by its driver. Prior to the accident, she was a daily labourer and used to supply labourers on commission basis. She also used to perform domestic activities to main her family. She used to earn a sum of Rs. 5,000/- per month from such occupations. She, therefore, claimed a compensation of Rs. 21,25,000/-. 3. The claim petition was resisted by the owner of the vehicle (respondent 1) and the Oriental Insurance Co. Ltd. (respondent 2) by filing their respective written statements. The respondent No. 1 claimed that the accident occurred due to the negligence of the appellant and not due to the fault of the driver of the vehicle. 21,25,000/-. 3. The claim petition was resisted by the owner of the vehicle (respondent 1) and the Oriental Insurance Co. Ltd. (respondent 2) by filing their respective written statements. The respondent No. 1 claimed that the accident occurred due to the negligence of the appellant and not due to the fault of the driver of the vehicle. In any case, his vehicle being insured with the respondent No. 2, any liability for the accident may be satisfied by the respondent No. 2; he has no financial liability whatsoever. The respondent No. 2 in their written statement denied their liability to pay the compensation. The burden of proving the case lies upon the appellant by producing relevant documents including the driving license of the driver. On the basis of the pleadings of the parties, the Tribunal formulated the following issues: 1. Whether the appellant sustained grievous injuries on her person in a vehicular accident which occurred on 28-8-2008 at about 09.30/10 AM on Assam-Agartala road near Jahar Nagar Chowmohani under Ambassa P.S. due to rash and negligent driving of Maruti Gypsy bearing registration No. TR-04-0658 by its driver? 2. Whether is entitled to get any compensation as prayed for. If so, up to what extent and who shall be held liable to pay the same? 4. In order to prove her case, the appellant herself as PW-1 and exhibited discharge certificate (Exhibit-1), prescriptions (Exhibit-2 series), disablement certificate (exhibit-3), cash memos and vouchers (exhibit-4series), certified copy of FIR, ejahar, charge sheet, injury report, etc. (Exhibit-5 series) and documents relating to her treatment (Exhibit-6 series). On the other hand, the respondent No. 1 examined himself as OPW-1 and submitted photo copy of insurance policy, tax token, registration certificate of the vehicle and driving license in the name of Samarendra Goswamy, which were marked as Exhibit-A series. He also examined the said Samarendra Goswamy as OPW-2 to prove his defence that OPW-2 did not drive the vehicle rashly and negligently. At the conclusion of the trial, the Tribunal passed the impugned judgment awarding the said compensation. In this appeal, the appellant is only making a grievance against the finding of her income at Rs. 3,000/- per month and of her disability with the resultant compensation awarded on the basis thereof for the disability sustained by her. 5. At the conclusion of the trial, the Tribunal passed the impugned judgment awarding the said compensation. In this appeal, the appellant is only making a grievance against the finding of her income at Rs. 3,000/- per month and of her disability with the resultant compensation awarded on the basis thereof for the disability sustained by her. 5. In so far as the disability of the appellant is concerned, the learned Member recorded the following findings: “It is stated by the petitioner that being a labour and labour contractor, she used to earn Rs. 5,000/- per month, but the petitioner could not produce any document in support of her income and profession from any competent authority. However, I believe that in the year 2008 a woman aged about 45 years (as revealed from ejahar and discharge summary) could earn Rs. 3,000/- per month. ……. So far as the disability of the petitioner is concerned, the petitioner has produced certificate of disability issued by the District Disability Board, Dhalai, Tripura which reveals that she has become disabled to the extent of 40% with validity for 5 (five) years. Since her disability is for five years and so she is entitled to get compensation for her loss of 40% income for five years @ Rs. 3,000/- as the monthly income, annual income comes to Rs. 36,000/-. Multiplying Rs. 36,000/- by 5 (five years) and taking 40% out of it, we get Rs. 72,000/-. This is the amount of compensation which the petitioner is entitled to get for her 40% disability for five years.” 6. In my opinion, the income of the appellant could not be less than Rs. 4,500/- per month even in the year 2008, after all, a healthy woman like her could easily earn not less than Rs. 150/- per day even as a labourer in those days. It is not the case of the respondents that she was a frail and unhealthy woman before the accident. Consequently, I have no difficulty in holding that the appellant used to earn a sum of Rs. 4,500/- per month at the time of the accident. 150/- per day even as a labourer in those days. It is not the case of the respondents that she was a frail and unhealthy woman before the accident. Consequently, I have no difficulty in holding that the appellant used to earn a sum of Rs. 4,500/- per month at the time of the accident. As for the extent of her disability, it would appear that the District Disability Board, Ambassa vide the Certificate of Handicapped Person dated 5-3-2009 had certified that the appellant had suffered post traumatic injury on the left femur due to road traffic accident and had 40% disability with a validity period of five years meaning thereby that the disability was not permanent in nature. However, from such certificate, it was not mentioned, nor could it be understood as to, the percentage of loss of earning capacity of the appellant. Physical disability is one thing and loss of earning capacity due to sufferance of physical disability is an entirely different concept. After all, physical disability does not, and cannot, necessarily lead to substantial loss of earning capacity. In order to find out the loss of earning capacity of the appellant, the District Disability Board, Dhalai was asked to re-examine the appellant to determine his present condition. After stonewalling my direction for sometime, the Board, on the pain of facing contempt proceeding, re-examined her on 2-3-2017 and opined that her disability is temporary in nature and her loss of earning capacity is to the extent of 40% vide the report dated 2-3-2017, which is marked “X” and is hereby made a part of the record. Both the parties did not question the opinion of the District Disability Board. In the absence of contradiction to these findings by the appellant, it can be safely said that the appellant did not suffer from permanent disability but had suffered temporary loss of earning capacity to the extent of 40% for a period of five years from the date of the accident. As the appellant used to earn Rs. 4,500/- per month at the time of the accident, her yearly income would come to Rs. 4,500x12= Rs.54,000/-. 40% of Rs. 54,000/- would come to Rs. 21,600/- and if this is multiplied by 5 years, the loss of earning capacity of the appellant would work out to be Rs. 1,08,000/-. As the appellant used to earn Rs. 4,500/- per month at the time of the accident, her yearly income would come to Rs. 4,500x12= Rs.54,000/-. 40% of Rs. 54,000/- would come to Rs. 21,600/- and if this is multiplied by 5 years, the loss of earning capacity of the appellant would work out to be Rs. 1,08,000/-. Thus, the loss of earning capacity of the appellant to the extent of 40% for a period of five years would come to Rs. 1,08,000/-. She will further be entitled to Rs. 150 x 37days = Rs. 5,550/- for loss of earning capacity during the periods of his hospitalization. She will also be entitled to Rs. 50,000/- for pain and suffering. She is further entitled to Rs. 8,905/- as cost of her treatment. In addition, she will be entitled to Rs. 30,000/- for miscellaneous expenses such as nursing charges, transportation, fooding, lodging, etc. Thus, the total amount of compensation payable to the appellant will come to Rs. 2,02,455/-. The appellant will also be entitled to interest at the rate of 9% per annum with effect from the date of the claim petition. 7. The result of the foregoing discussion is that the appeal partly succeeds. The insurer-respondent is directed to deposit with this Registry a sum of Rs. 2,02,455/- together with an interest @ 9% per annum with effect from the date of the claim petition within two months from the date of receipt of this judgment for payment to the appellant. As and when the awarded amount is deposited, the Registry will disburse the same to the appellant after fulfilling the usual formalities without further reference to this Court. Needless to say, any amount already deposited or paid to the appellant shall be deducted accordingly for refund to the insurer-respondent without further reference to this Court. The impugned judgment is, therefore, modified to the extent indicated above. No cost. Transmit the LC record forthwith.