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2018 DIGILAW 1255 (GAU)

JOGEN TALUKDAR v. BINOD KUMAR DEKA

2018-08-27

RUMI KUMARI PHUKAN

body2018
JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. B.K. Jain, the learned appearing for the appellant. Ms. M. Choudhury, the learned counsel is appearing for the New India Assurance Co. Ltd. (hereinafter referred as 'the Insurance Company'). None is present to represent the respondent No.1. 2. This is an appeal under Section 173 of the Motor Vehicle Act, 1988, against the judgment and award dated 21.05.2012, passed by the Member, Motor Accident Claims Tribunal No.2, Kamrup at Guwahati, in M.A.C. Case No.2737/2008. 3. The brief fact of the case is that on 10.11.2007, at about 8:40 A.M., while the claimant (appellant herein) along with one Nava Nath, was going to Puthimari from Barpalaha and after arriving at Puthimari Chowk, they were getting down from the Bus and tried to cross the road, the offending vehicle (Motorcycle), bearing Regn. No.AS-13-A-6262 knocked him down. As a result, the claimant sustained injuries and undergone treatment in different Hospitals, as outdoor patient. It is alleged that the accident occurred due to rush and negligent driving of the aforesaid vehicle. 4. The appellant as a claimant preferred the claim petition, claiming compensation from the owner, driver and the insurer of the offending vehicle, for the injuries sustained by him due to the accident which was registered as MAC 2737/2008. 5. Necessary notice was issued by the Tribunal to the driver, owner and insurer of the vehicle. The owner cum driver of the offending Motorcycle did not appear to contest the claim petition and the same proceeded ex-parte against him. 6. The Insurer of the Motorcycle appeared in the case and contested the same by filling written statement, contending inter alia that the petition is excessive and exaggerated having no real basis. The insurance company also contends that they are not liable to pay any compensation unless it is proved that the driver of the offending vehicle had valid driving license at the time of accident and if there is violation of policy condition. 7. On the pleadings of both the parties, following issues were framed: 1. Whether the claimant Sri Jogen Talukdar sustained injuries in the alleged road accident dated 10.11.2017 involving vehicle No.AS-13-A-6262 and whether the said accident had taken place due to rash and negligent driving of the offending vehicle? 2. Whether the claimant is entitled to any compensation and if yes, to what extent and by whom amongst the Opp. Whether the claimant Sri Jogen Talukdar sustained injuries in the alleged road accident dated 10.11.2017 involving vehicle No.AS-13-A-6262 and whether the said accident had taken place due to rash and negligent driving of the offending vehicle? 2. Whether the claimant is entitled to any compensation and if yes, to what extent and by whom amongst the Opp. Parties, the said compensation amount will be paid? 8. During the course of proceeding, the claimant examined two witnesses including himself in support of his case and respondent adduced no evidence. The learned Tribunal after examining the evidence on record, comes to the finding that the accident occurred due to the rush and negligent driving of the vehicle resulting the injuries to the claimant. 9. As regards to the quantum of compensation, after hearing the parties and perusal of documents annexed with the claim petition, the learned Tribunal has assessed the amount of compensation under the following heads: (i) Medical expenditure: Rs. 12,000/- (ii) Pain, shock and suffering: Rs. 10,000/- & (iii) Incidental expenditure: Rs. 10,000/-. Total: Rs. 32,000/-. The amount will carry interest @ 6% per annum from the date of filing of the claim petition till payment. 10. Challenging the aforesaid award, the claimant has preferred the present appeal on the ground that the quantum is on the lower side which is inadequate and unjust as the learned tribunal has not taken into account the huge medical expenditure that has been incurred by him and also factum of the permanent disability to the extent of 45% as has been stated by the medical officer. 11. I have heard considered the submission of the learned counsel of the appellant as well as the learned counsel for the respondent/insurance company. As regards the contention regarding non-payment of medical expenditure that has been incurred by the appellant it is to be noted that the learned tribunal has not taken into account those case memos and receipt which does not supported by any prescription. The learned counsel for respondent Ms. M. Choudury has pointed out towards the cross examination of the claimant who has admitted the said aspect that no prescription has been submitted in respect of certain exhibits. Only because that the provision being social legislation, one cannot eschewed from the liability to prove the authenticity of documents. The learned counsel for respondent Ms. M. Choudury has pointed out towards the cross examination of the claimant who has admitted the said aspect that no prescription has been submitted in respect of certain exhibits. Only because that the provision being social legislation, one cannot eschewed from the liability to prove the authenticity of documents. Certain documents has been filed like auto riksaw fair, fees towards physiotherapy etc., without proving the same by examining the author, so the same cannot be accepted in evidence. 12. On the next, although the doctor who has testified about 45% disability of the claimant but his evidence is not supported by any short clinical examination report. He has issue the said certificate in a personal capacity and the claimant was not examined by Board of Doctors constituted under Social Welfare Department to examine the extent of disability. More so, there is lack of evidence as to what extent such disability has affected the earning capacity of the claimant, to indicate the loss of income. The claimant sustained some fracture injure on the shoulder portion as per the report for which he was advised to carry out physiotherapy and regular exercise and as such other medical documents also not suggestive of any sort of disability either permanent or partial. 13. As has been discussed above, the learned tribunal righty appreciated about the quantum of medical expenses and about the disability. But however, certain matter deserved consideration while assessing the compensation. As per the medical documents the claimant continued the medical treatment since the day of accident on 10.11.2007 till 07.07.2008 continuously and one another document has been filed of the year 2010. The claimant sustained fracture of the lateral end of right clavicle and while carrying out such treatment the claimant might have incurred certain amount of expenditure. 14. Taking into account all above, following amount of calculation is being made to be just and proper amount to be awarded to the claimant. (i) Medical expenditure : Rs. 12,000/- (ii) Pain, shock and suffering : Rs. 50,000/- (iii) Incidental expenditure : Rs. 30,000/- & (iv) Loss of amenities of life : Rs. 10,000/-. Total : Rs. 102000/- 15. The amount shall carry an interest @ 7.5% per annum from the date of filling of the petition till payment. (i) Medical expenditure : Rs. 12,000/- (ii) Pain, shock and suffering : Rs. 50,000/- (iii) Incidental expenditure : Rs. 30,000/- & (iv) Loss of amenities of life : Rs. 10,000/-. Total : Rs. 102000/- 15. The amount shall carry an interest @ 7.5% per annum from the date of filling of the petition till payment. The New India Insurance Company/respondent No. 2 is directed to pay the award at the enhance rate as indicated above by adjusting the earlier amount, if any, already paid. 16. The appeal is partly allowed. 17. Return the LCR.