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2017 DIGILAW 259 (TRI)

Shadir Miah S/o Titu Miah v. Utsawmoy Dey S/o Nirmal Chandra Dey

2017-06-12

T.VAIPHEI

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.S. Roy, the learned counsel for the claimant-appellant. I have also heard Mr. P. Gautam, the learned counsel for the insurance company, i.e. the Oriental Insurance Co. Ltd. 2. Dissatisfied with the award of Rs. 52,742.50/- passed by the Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala in T.S. (MAC) No. 128/2011 on 25.04.2014, the claimant-appellant is filing this appeal for enhancement of the compensation on two grounds namely, (i) the finding that there was contributory negligence on the part of the claimant-appellant is perverse and (ii) the amount awarded did not take into account his actual medical expenses, his correct monthly income and his pain and suffering, etc. entitled to him. 3. The case of the claimant-appellant is that on 16.10.2010 at about 5/5.30 a.m. when he was proceeding towards Gakulnagar by riding motor cycle bearing registration No. TR-01-E-6682 near Nabodaya Sangha at Gakulnagar, he stopped his motor cycle and at that time, one Santro Xing GLS bearing No. TR-01-X-0414 driven in a high speed coming from the opposite direction dashed against the claimant-appellant and his motor cycle. As a result, the appellant sustained serious injuries on various parts of his bodies. He was then taken to Bishalgarh Hospital and was thereafter referred to G.B.P. Hospital, Agartala and was treated there as indoor patient from 16.10.2010 to 29.12.2010. Even after his discharge, he is stated to have received treatment as OPD Patient at the same hospital. According to appellant, he took rest for one year on the advice of the doctor. The appellant claimed that he was a milk seller at the time of the accident, was aged 35 years old and used to earn Rs. 7,000/- per month. He, therefore, filed a claim petition claiming a compensation of Rs. 18,20,000/-. 4. Both the owner of the vehicle and the insurance company contested the claim petition and filed their respective written statements. The stands taken by the respondents are that they were in no way responsible for the accident and are not liable to pay any compensation. The owner of the vehicle admitted that the accident occurred due to rash and negligent driving of the Santro Xing GLS vehicle. On the basis of the pleadings of the parties the Tribunal framed following issues: “1. The owner of the vehicle admitted that the accident occurred due to rash and negligent driving of the Santro Xing GLS vehicle. On the basis of the pleadings of the parties the Tribunal framed following issues: “1. Whether the claimant petitioner sustained any kind of injury in a vehicular accident occurred on 16.10.2010 at about 5/5.30 a.m. at Gokulnagar near Nabodaya Sangha under Bishalgarh P.S. due to rash and negligent driving of both the vehicles bearing Nos. TR-01X-0414 (Santro Xing GLS) & No. TR-01-E-6682 (Motor Bike), by the drivers? 2. Whether the claimant petitioner is entitled to get any compensation due to the said injury, if so, what would be amount of compensation and who shall be held liable for payment of the same? 3. What other relief/reliefs are the parties entitled to?” 5. After hearing the parties and examining the appellant as the sole witness in the case, the Tribunal passed the impugned judgment. According to the Tribunal, in the absence of the final report submitted by the police, there was a presumption against the appellant. The Tribunal recorded a finding that the FIR was lodged by the brother of the appellant was not even an eye witness to the accident and that the appellant was in a running condition and that it was a face to face collision between his motor cycle and said Santro Xing GLS. The Tribunal held that the accident occurred due to the rash and negligent driving of the motor cycle by the appellant as well as the said Santro Xing GLS and that both of them were equally negligent. The Tribunal awarded Rs. 20,000/- for pain and suffering and a sum of Rs. 47,485/- for his treatment. The Tribunal determined the income of the appellant as Rs. 4,000/- per month by virtue of his being a milk seller and disbelieved the case of the appellant that he used to earn Rs. 7,000/- per month. The Tribunal also found that the appellant took rest for three months and accordingly awarded Rs. 4,000 x 3 = Rs. 12,000/- towards loss of income. The Tribunal also awarded Rs. 10,000/- as misc. expenses like fooding, lodging etc. in Tripura and Silchar. The total amount of compensation so awarded thus came to Rs. 1,05,485/-. The Tribunal thereafter deducted 50% thereof from the compensation so determined as there was contributory negligence on the part of the claimant-appellant. 6. 12,000/- towards loss of income. The Tribunal also awarded Rs. 10,000/- as misc. expenses like fooding, lodging etc. in Tripura and Silchar. The total amount of compensation so awarded thus came to Rs. 1,05,485/-. The Tribunal thereafter deducted 50% thereof from the compensation so determined as there was contributory negligence on the part of the claimant-appellant. 6. Aggrieved by this, this appeal has been preferred. In my opinion, the approach of the Tribunal is not wrong and improper. The appellant in his deposition categorically mentioned that Santro Xing GLS bearing Registration No. TR-01X-0414 running in a rash and negligent manner dashed against his motor cycle while he halted. This statement of the appellant is not at all disputed by the Insurance Company in their cross-examination. At this stage, it may be noticed that the owner of the Santro Xing GLS also admitted in his written statement that his vehicle was driven in a negligent manner. The Tribunal, therefore, misdirected itself by coming to the wrong presumption, which was never pleaded case of the owner of the vehicle or of the Insurance Company. In that view of the matter, the findings of the Tribunal to that effect are perverse. This is a clear case of negligence by the said Santro Xing GLS car, for which the appellant had no role to play in the accident. Therefore, this is not a case of contributory negligence. The owner of the Santro Xing GLS car is clearly responsible for the vehicular accident and the insurer is vicariously liable to satisfy the award. 7. In so far as the award in respect of pain and suffering at Rs. 20,000/- is concerned, in my opinion, this is on the lower side considering the nature of the accident as well as the various injuries sustained by the appellant which are admittedly serious in nature. He should have been awarded Rs. 50,000/- for the pain and suffering. Secondly, though the appellant presented cash memos of Rs. 64,510/- as medical expenses, the Tribunal awarded only Rs. 47,485/- and the same is liable to be enhanced to Rs. 64,510/-. As for the income of the appellant, considering the fact that he was a milk seller and was, therefore, a unskilled worker at the time of the accident, he is deemed to have earned Rs. 5,000/- per month. 64,510/- as medical expenses, the Tribunal awarded only Rs. 47,485/- and the same is liable to be enhanced to Rs. 64,510/-. As for the income of the appellant, considering the fact that he was a milk seller and was, therefore, a unskilled worker at the time of the accident, he is deemed to have earned Rs. 5,000/- per month. As he was taking rest for 12(twelve) months, he is entitled to get Rs. 5000 x 12 = 60,000/- for the loss of income during that period. In the miscellaneous expenses also, keeping in view the treatments undergone by him in 2/3 hospitals, he is entitled to Rs. 30,000/- for fooding, lodging etc. and not Rs. 10,000/-. Therefore, the total amount of compensation payable to claimant-appellant is Rs. 2,04,510/-. As there is no contributory negligence on the part of the appellant in the accident, the claimant-appellant is entitled to the whole amount so awarded and the respondent No. 2 i.e. the Oriental Insurance Co. Ltd. is liable to satisfy the amount of compensation. 8. This appeal is, therefore, allowed. The impugned judgment and award is set aside. The compensation payable to the claimant-appellant is thus enhanced from Rs. 52,742.50/- to Rs. 2,04,510/-. The claimant-appellant will be entitled to interest @ 8% per annum from the date of filing of the claim petition. The insurer i.e. the Oriental Insurance Co. Ltd. is directed to deposit the aforesaid amount with the accrued interest to this Registry within a period of 2(two) months from the date of receipt of this judgment. Any amount already deposited or paid to the claimant-appellant shall stand adjusted accordingly. 9. It is made clear that as and when the aforesaid amount is deposited, the same shall be released to the claimant-appellant as per usual arrangements without further reference to this Court. The impugned judgment and award dated 25.04.2014 stands modified in the manner and to the extent indicated above. Transmit the L.C. records to the Tribunal forthwith. A copy of this order will be furnished to the learned counsel for the insurance company.