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Tripura High Court · body

2017 DIGILAW 282 (TRI)

Dipti Roy, wife of late Arun Roy v. Sumendra Kumar Dey, son of Chandra kumar Dey

2017-07-10

S.TALAPATRA

body2017
JUDGEMENT AND ORDER : 1. Heard Mr. RR Dutta, learned counsel appearing for the appellant as well as Mr. AL Saha, learned counsel appearing for the respondent No.2, National Insurance Company Limited. None appears for the respondent no.1 despite due notice from this court. 2. By means of this appeal, the judgment and award dated 28.07.2008 delivered in T.S. (MAC) 400 of 2003 has been called in question. 3. Mr. Dutta, learned counsel has made an oral application to take the copy of the certificate for the handicapped person dated 01.10.2008 which was marked as Exhibit 1 series in T.S. (MAC) 291 of 2010. 4. Mr. Saha, learned counsel in a graceful manner has submitted that though the document should have been processed under Order LXI Rule 42 of the CPC but since this document is a public document under Section 74 of the Evidence Act, he would not raise any technical objection. This court may consider that document in the perspective of this case. However, Mr. Saha, learned counsel has clearly submitted that the claimant appellant in the proceeding being TS (MAC) 400 of 2003 filed another certificate for handicapped person dated 29.08.2001 which was issued for 3(three) years. The said certificate also certified the claimant-appellant to have suffered disability to the extent of 30%. Thus, the disability has not reduced or increased over all these years and the present certificate dated 01.10.2010 which has been admitted in the record of evidence by this court on admission marking the same as Exhibit ‘X’ also denoted 30% disability, as stated and that was also certified for 5(five) years and as such the said certificate has expired but the claimant-appellant has not submitted any other certificate for handicapped person on expiry of the said certificate for handicapped person dated 01.10.2008 [the Registry shall take away the Exhibit ‘X’, at page 34 of the Memorandum of Appeal by replacing the same with a photocopy thereof. The certified copy shall be placed with the records of the Tribunal after the exhibited document already in record. 5. Mr. Dutta, learned counsel has submitted that the Tribunal while making the award has not properly considered the monthly income of the claimant-appellant as she was doing farming on her own land and carrying on the business of selling puffed-rice. Her monthly income was much more but her monthly income has been assessed at Rs. 5. Mr. Dutta, learned counsel has submitted that the Tribunal while making the award has not properly considered the monthly income of the claimant-appellant as she was doing farming on her own land and carrying on the business of selling puffed-rice. Her monthly income was much more but her monthly income has been assessed at Rs. 4,000/- per month. However, Mr. Dutta, learned counsel, has submitted that the tribunal ought to have determined the reduction of the income for the damage that has been suffered by the appellant and also the loss of future prospect. That apart, he has submitted that there has been substantive loss of amenities in life for the injuries that has been suffered by the claimant appellant but all these components of compensation have not been taken into consideration. Mr. Dutta, learned counsel has further submitted that Rs. 30,000/- has been awarded as the cost of treatment, Rs. 10,000/- for pain and sufferings and a further sum of Rs.30,000/- for becoming 30% disabled as loss of capacity of income. Thus, the total sum of Rs.70,000/- has been awarded which according to him, is inadequate and unreasonable. 6. Mr. Saha, learned counsel has vehemently contested the submission of Mr. Dutta, learned counsel by stating that without having any evidence to justify such claim, the tribunal has rather liberally granted those components on embarking on the compensation by guess work. The petitioner cannot deserve more against what he has suffered. The tribunal has followed a reasonable procedure and hence this court may not interfere with the said award. 7. Having regard to the submissions made by the learned counsel appearing for the parties, this court finds that contrary to what Mr. Dutta, learned counsel has submitted, the tribunal has not determined the monthly income at all. The loss of capacity of income has been determined on aggregate basis without determining the unit of income. This is even not a very good guess work. 8. This court having regard to the market behaviour would like to hold that the claimant-appellant was capable of earning Rs.5,000/- per month from her vocation, as stated. Thus, her annual income would have been Rs.60,000/-. For the 30% disablement as certified by the competent Board, namely District Disability Board, West Tripura, the claimant-appellant has definitely lost atleast 20% of her earning capacity. Thus, her annual income would have been Rs.60,000/-. For the 30% disablement as certified by the competent Board, namely District Disability Board, West Tripura, the claimant-appellant has definitely lost atleast 20% of her earning capacity. Though there no evidence but this can be assessed in terms of the disability that the claimant-appellant has suffered. Therefore, the annual loss that the claimant-appellant has suffered would be Rs.12,000/-. The loss for 10 (ten) years would therefore come to Rs. 1,20,000/-. This court finds that the amount of Rs.10,000/- for bodily pain or suffering is too inadequate and accordingly this is enhanced to Rs.50,000/-. Someone when suffers 30% of physically disability, this amount would be reasonable for him. That apart, for loss of amenities in life, this court could give another sum of Rs.50,000/- in favour of the claimant-appellant. In absence of any other document to show that the claimant-appellant had spent more than Rs. 30,000/- for treatment, this court would go by the amount that has been assessed by the tribunal. Thus, another sum of Rs.30,000/- would be added with the amount. The total amount therefore comes at Rs. 2,50,000/-. That amount shall carry interest @7% from the date when this appeal has been filed in this court i.e. 24.05.2016. The respondent no.2 is directed to deposit the said amount after deducting the sum that has already been paid within a period of 2(two) months from today in the tribunal below. On deposit, the claimant appellant shall be entitled to draw the entire amount on proper identification. It is made clear that in future the claimant-appellant shall not be allowed to file further claim for purpose of loss of capacities, as already this court has already determined the compensation keeping all the factors in consideration. 9. With this observation, the appeal stands allowed to the extent as indicated above. There shall be no order as to costs.