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2018 DIGILAW 1365 (GAU)

Nur Zamal Sk v. Abdul Goffar

2018-09-15

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. A.R. Agarwala, learned counsel appearing for the appellant. Also heard Mr. M. Hussain, learned counsel appearing for the respondent No.1 (owner) and Mr. B.J. Mukherjee, learned counsel for the respondent No.2 (insurer). 2. The present appeal has been directed against the judgment and order dated 16.12.2014, passed by the learned Member, Motor Accident Claims Tribunal, Dhubri, in the MAC Case No.255/2010. 3. Briefly stated, the case of the claimant is that on 12.03.2010, at about 1:00 P.M., while the claimant was proceeding towards his home at Baruabhita from Kalahat Dharmasala by the vehicle No. AS-17-B/0715 (Auto Rickswa), on the way when the vehicle reached near Baruabhita L.P. school, the driver of the vehicle suddenly turned and applied brake and as a result, the claimant fell down from the auto rickswa on the PWD road and sustained multiple injuries on his person. According to the claimant, the accident occurred due to the rush and negligent driving of the vehicle. Soon after the accident, the local brought him to Dhubri Civil Hospital and treated there as an indoor patient till 16.3.2010, wherefrom he was referred to the GMCH, where he was admitted on 17.3.2010 and subtrochan right fumer K-nail fixation was done and discharged on 28.3.2010. Thereafter the claimant was under treatment in the Dhubri Civil Hospital as an indoor patient till 11.4.2010. The Medical Board, Dhubri certified him as 50% disablement as a result of the accident. The claimant claimed Rs. 5 lacs as compensation, for the injuries sustained by him, as a result of the accident. 4. The learned Tribunal issued notice to the owner, driver and insurer of the offending vehicle, who in turn contested the case by filing their respective written statement. It is contended by the owner and driver of the vehicle that the vehicle was duly insured with the M/s. Bajaj Allianz General Insurance Corporation Ltd. So the liability if any is to be indemnified by the Insurance Company. As usual, the insurance company also denied the allegations and submitted that their liability is subject to production of relevant documents like insurance policy, valid permit, driving license of the driver, etc. of the said vehicle. 5. Upon pleadings, the learned Tribunal framed the following issues: 1. As usual, the insurance company also denied the allegations and submitted that their liability is subject to production of relevant documents like insurance policy, valid permit, driving license of the driver, etc. of the said vehicle. 5. Upon pleadings, the learned Tribunal framed the following issues: 1. Whether the accident took place due to rush and negligent driving of vehicle No. AS-17-B /0715 and the claimant sustained injuries due to the accident? 2. Whether the offending vehicle was duly insured with M/s. Bajaj Allianz General Insurance Corporation Ltd. at the time of accident? 3. What shall be the just and proper compensation and by whom payable? 4. Whether the claimant is entitled to get the relief as prayed for? 6. In support of the case, the claimant examined three witnesses including one Doctor and the respondents adduced no any evidence. 7. After taking into note all the evidence on record and the documents filed, the learned Tribunal came to findings that the injured/appellant sustained injury in the said accident due to rush and negligent driving of the Auto Rickswa, bearing Regn. No.AS-17-B/0715. 8. As regards the amount of compensation, the learned Tribunal on examination of documents and age of the claimant, etc., came to a finding that the injured was a student at the time of accident, aged about 18 years and is a non-earning member. However, the learned Tribunal assessed three months income @ Rs. 3000/- per month and awarded an amount of Rs. 9000/- for the three months, for the loss of income. Having regard to the medical documents, that has been submitted, an amount of Rs. 12,000/- was awarded on the basis of medical vouchers. Over and above, Rs. 10,000/- each was granted under the heads of pain and sufferings and loss of amenities in life. The learned Tribunal however discarded the disability certificate (Exhibit 17), that was produced before the Tribunal, on the ground that the Doctor who examined the injured was not examined before the Tribunal and in fact, the said certificate was issued by the convener (PW.3) of the said Medical Board but not by the examiner of the injured. The PW.3 (Sri Khagen Mohan) also admitted that none of the Members of the Medical Board was Orthopedic Surgeon, whereas the injured sustained fracture injury. 9. The PW.3 (Sri Khagen Mohan) also admitted that none of the Members of the Medical Board was Orthopedic Surgeon, whereas the injured sustained fracture injury. 9. Being dissatisfied with the award, the present appeal has been preferred by the claimant on the ground that the learned Tribunal has failed to appreciate the disability certificate, produced before the Tribunal as well as the loss of earning and other inconvenience/conveyance expenses were not granted by the Tribunal while awarding compensation. Hence, prayer has been made to enhance the award along with interest. 10. It has to be mentioned here that the Insurance Company also produced two witnesses along with certain documents to prove that the said offending vehicle (AS-17-B/0715) of the insured do not have valid permit at the relevant time i.e. on the date of accident. It has been deposed by the defence witnesses that as per the official record, the permit of the vehicle was renewed from 25.3.2010 to 24.7.2010, which do not cover the accident that occurred on 12.3.2010, in respect of the said vehicle. The original file of the aforesaid auto-rickswa, bearing No. AS-17-B/0715, was produced before the Tribunal to prove the said aspect. On the basis of which, the learned Tribunal found and held that there was a violation of the policy condition and as such the awarded amount shall be payable by the insurance company but the same is recoverable by the insurance company from the owner of the vehicle/opposite party No.1 Abdul Goffar. 11. I have heard the submission of learned counsel for the appellant as well as the learned counsel for the insurer and the owner of the vehicle (respondent No.1). During the pendency of the appeal, the respondent No.1 has also filed a Cross-Objection No.8/2016, raising certain contention that in fact he never contested the said proceeding neither filed any written statement and no notice was served upon him by the Tribunal. So he should be exonerated from the liability as has been imposed by the Tribunal. It has also been contended that the findings of the learned Tribunal is wrong, as the insurer is vicariously liable to pay the awarded amount, instead of direction to the insurer to recover the amount from the owner. 12. So he should be exonerated from the liability as has been imposed by the Tribunal. It has also been contended that the findings of the learned Tribunal is wrong, as the insurer is vicariously liable to pay the awarded amount, instead of direction to the insurer to recover the amount from the owner. 12. The learned counsel for the Insurance Company has submitted that they have already paid the awarded amount to the claimant including the interest and the learned Tribunal has rightly appreciated all the materials on record and the claimant is not entitled to any amount under the head of permanent disability, as the same was not properly proved. It is submitted that enhancement if any of the amount should be recovered from the owner of the vehicle and not from the insurer. They are contemplating further proceeding to recover the money already paid by them from the owner/respondent No.1. 13. Due consideration has been given to the submission of the learned counsel for the parties and also gone through the LCR and the documents annexed. It is to be noted that the injured/claimant was a student stated to be 18 years but his age is not proved before the Tribunal, which indicates that he may be less than 18 years also. So he can be termed as a non-earning member of the family and in that context, the learned Tribunal has liberally allowed some amount to the claimant under the head of loss of income to the tune of Rs. 9,000/-, as indicated above. On the other hand, exactly on the basis of medical documents, cash memos, etc., the expenses has been calculated by the Tribunal, which amounted to approximately Rs. 12,000/-, which has also been awarded by the Tribunal and it calls for no interference. Other amount awarded under pain and sufferings and loss of amenities in life, needs some consideration, in the given background that the victim suffered fracture injury at fumer and he has undergone long treatment (admitted in the hospital for around one month). Further nail was fitted for his fracture injury but there is no document to show whether it was already removed or not. The learned counsel for the appellant has submitted that some amount under the head of future treatment is required as he is still to remove the nail fixation. 14. Further nail was fitted for his fracture injury but there is no document to show whether it was already removed or not. The learned counsel for the appellant has submitted that some amount under the head of future treatment is required as he is still to remove the nail fixation. 14. Now as regards the disability certificate, it can be noted that the Doctor who examined the claimant was not examined before the Tribunal but a person who has simply issued one certificate, which bears no name of Doctors comprising the Medical Board has been examined. That apart, the certificate is not based on the opinion of any Orthopedic Surgeon to prove conclusively that the claimant/injured sustained what short of disability, either permanent or temporary or there was any functional disability for a temporary period. Peculiarly the claimant in his evidence has stated that he did not know the office of the Social Welfare nor about the certificate issued in this regard. The credibility of the said certificate is lost in view of such testimony of the claimant himself, to held that he was actually examined by such Board of Doctors. 15. The learned Tribunal has relied upon the decisions of: (i) National Insurance Co. Ltd. vs. Chandreswar Thakur, 2001 2 GauLJ 110 , (ii) National Insurance Co. Ltd. vs. Ismaeli, (2010) 1 GauLJ 240 and (iii) Oriental Insurance Co. Ltd. vs. Lalian Sowma, (2010) 2 GauLR 399 . In aforesaid decisions, it has been clearly held that non-examination of Doctor to establish the extent of disability sustained by the claimant, amounts to deny the opportunity to the other contesting parties to cross-examine the veracity of correctness of such certificate or the statement of victim. On examination of the evidence of the claimant's witnesses herein, it is found that he has not specifically stated anything about his permanent disability, which affected his earning capacity and his simple assertion was that he could not move freely. 16. From all, what has been discussed above, the permanent disability certificate that has been produced cannot be accepted and the learned Tribunal has rightly refused to accept the same. 17. 16. From all, what has been discussed above, the permanent disability certificate that has been produced cannot be accepted and the learned Tribunal has rightly refused to accept the same. 17. Now as regards the contention raised by the respondent No.1/owner of the vehicle that he never appeared before the said Tribunal nor he filed any written statement and the claim of the claimant that the accident occurred due to the fault of the driver of the vehicle is false, is not sustainable in view of the fact that the LCR reveals that the respondent No.1 appeared before the Tribunal by filing vokalatnama and also filed the written statement. So it is difficult to accept such contention that has been laid by way of filing Cross Objection by the respondent No.1. Similarly on the basis of the evidence including the eye witness, the Tribunal has held that due to rush and negligent driving of the offending vehicle, the accident occurred resulting injury to the claimant. There being no any rebuttal evidence on the matter, the contention raised by the respondent No.1, cannot be accepted. It is also not a specific case of the respondent No.1 that he has valid permit at the time of accident to rebut the evidence that have been adduced by the Insurance Company before the Tribunal. That being so, the owner of the vehicle is liable to pay the compensation for violation of the policy condition. Accordingly the Cross Objection was filed by the respondent No.1 deserves no consideration and hence rejected. 18. Finally this Court is of the opinion that as the injured/appellant sustained fracture injury in his tender age and also remained to certain confinement for such injury and continued treatment for around one year and also he require to remove the K-nail fixation, which was inserted on his fractured portion, the claimant deserve certain enhancement of the compensation, which is now calculated as follows : (i) For loss of income Rs. 9,000/- (as decided earlier) (ii) For the medical expenses Rs. 12,000/- (iii) For pain and sufferings Rs. 20,000/- (iv) For loss of aminities in life Rs. 20,000/- (v) For the future treatment including removal of steel plate Rs. 30,000/- Total Rs. 91,000/- 19. 9,000/- (as decided earlier) (ii) For the medical expenses Rs. 12,000/- (iii) For pain and sufferings Rs. 20,000/- (iv) For loss of aminities in life Rs. 20,000/- (v) For the future treatment including removal of steel plate Rs. 30,000/- Total Rs. 91,000/- 19. As it has been submitted by the learned counsel for the Insurance Company that the earlier awarded amount with interest, has already been paid to the claimant and the respondent No.1, present before this Court by way of this Cross Objection, is hereby directed to pay the enhanced amount (after deducting the amount already paid to the claimant), with interest @ 6% per annum, from the date of award dated 16.12.2014 till realization, which, be deposited before the learned Tribunal, within a period of eight weeks from today. The claimant can withdraw the amount on due identification. 20. With the above direction, the appeal is partly allowed. Return back the LCR with a copy of this order.