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2018 DIGILAW 1477 (GAU)

Janti Das v. New India Assurance Co Ltd

2018-10-03

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. B. Baruah, learned counsel for the appellant. Also heard Mr. S. Dutta, learned counsel appearing for the respondent No.1 (the New India Assurance Co. Ltd.) and Mr. R. Goswami, learned counsel for the respondent No.2 (the ICICI Lombard General Insurance Co. Ltd.) 2. The present appellant preferred a claim petition before the learned Member, MACT, Lakhimpur, under Section 166 of the Motor Vehicle Act, 1988, praying for compensation for the injuries sustained in a road traffic accident. 3. Briefly stated, the case of the appellant/claimant is that on 31.12.2010, while he was travelling from Kaziranga by a Tata Winger vehicle bearing Regn. No.AS-07 C/0266 towards Laluk and the vehicle reached at Dholpur, the vehicle met with an accident, as the said vehicle dashed against one truck bearing Regn. No.AS-01 C/9215, which was stationing on the middle of the road. The claimant sustained severe injuries on his person and he was immediately treated at GMCH and after some recovery from the injuries, he preferred the aforesaid claim petition claiming compensation on account of injury he suffered which is according to him disabled the claimant to certain extent. 4. The learned Tribunal issued notice to the driver, owner as well as insurer of both the offending vehicles and in turn, the driver of the Tata Winger contested the case by filing written statement, contending inter alia that he had the requisite driving license at the time of occurrence and the owner also not liable to pay the compensation as the vehicle was insured with the ICICI Lombard General Insurance Co. Ltd., at the time of incident. So the compensation, if any is to be indemnified by the Insurance Company. The owner of the Tata Winger also contested the case by filing written statement, contending that the accident occurred due to the fault of the truck which was stationed on the road without proper caution and protection. It was also stated that the vehicle was duly insured with the ICICI Lombard General Insurance Co. Ltd. and so the compensation, if any is to be indemnified by the Insurance Company. 5. The ICICI Lombard General Insurance Co. Ltd. in their written statement has stated that the owner of the vehicle No.AS-07 C/0266 is to produce the relevant insurance policy, registration certificate, driving license, etc. failing which the Insurance Company has no liability to pay the compensation. 5. The ICICI Lombard General Insurance Co. Ltd. in their written statement has stated that the owner of the vehicle No.AS-07 C/0266 is to produce the relevant insurance policy, registration certificate, driving license, etc. failing which the Insurance Company has no liability to pay the compensation. However, it was contended that they were not aware of the accident and that the claim petition is excessive and speculative. 6. However the driver and the owner of the truck did not turn up before the Tribunal to contest the case for which the case proceeded ex-parte against them. 7. The New India Assurance Co. Ltd., which was the insurer of the offending truck filed their written statement, denying the liability of the aforesaid truck. It was stated in fact that the winger vehicle by its own fault and negligent driving, dashed against the stationing vehicle and the said truck was not at fault for the accident. It is also contended that liability to pay compensation is subject to production of the relevant documents such as insurance policy, driving license, etc. 8. Upon the pleadings of the parties, the following issues were framed: (1) Whether the alleged accident took place on 31.12.2010 at 12 pm, at Dholpur under Bihpuria PS due to rush and negligent driving of the driver of the offending vehicle bearing registration No.AS.07.C/0266 (Tata Winger) or due to carelessness and negligent parking of the offending vehicle bearing registration No.AS.01.C/9215 (Truck) by its driver causing injury to the person of claimant, Sri Janti Das? (2) Whether the claimant is entitled to get any compensation as prayed for, and if so, from whom? (3) What other relief/relief’s the claimant is entitled to? 9. In course of the proceeding, the claimant examined five witnesses including himself and one medical officer. No evidence was adduced from the side of the opposite parties. 10. It was the pleaded case of the claimant that on the date of occurrence i.e. on 31.12.2010, while he was coming along with his colleague in the Tata Winger and reached Dholpur at midnight at 12 O'clock, the vehicle dashed against the backside of a truck which was parked on NH-52, covering half of the road negligently. As a result of which the claimant sustained grievous injuries on his person and leg was totally broken. As a result of which the claimant sustained grievous injuries on his person and leg was totally broken. He was shifted to Dholpur PHC and thereafter to North Lakhimpur Civil Hospital and also to GMCH for his treatment and operation of the fractured injury of his leg was performed. According to him, the accident took place due to fault of the truck which was parked on the main road without proper caution. There were several passengers in the said vehicle at the time of occurrence and two of the passengers namely, Sapon Hazarika and Pranab Das, who were travelling with the claimant have also given their evidence in support of the claimant that the accident occurred due to the fault of the said truck, which was not parked properly on the road. Another evidence i.e. CW.4, Labodar Das has also corroborated about the accident and the injuries sustained by the claimant although he was not an eye witness to the accident. 11. On appreciation of evidence on record, the learned Tribunal however held that both the vehicles were at fault for the said incident as the driver of the winger vehicle also should have taken proper care while driving the vehicle on the highway. 12. On the matter of injury, the claimant in his evidence which is also supported by other witnesses, stated that he sustained severe injury on his person and he was treated at different hospitals and to this effect, he also produced certain documents before the Tribunal like laboratory report, X-ray plate, radiology report and also examined one Doctor (CW.5) who in his evidence has also stated that being a member of the District Medical Board, he examined the claimant and issued the disablement certificate (Exhibit 25), which bears his signature and other members of the Board. Accordingly to the CW.5, the disability of the claimant was 30% and the injured had undergone operation due to fracture of left femur. Subsequently the injured developed flucture deformity and restriction of movement, for which disability caused. A steel rod was placed inside femur as a result of which he suffered 30% disability and unable to ride bicycle for performing day to day business and also unable to do any hard work. 13. On the basis of such medical documents and evidence, the learned Tribunal assessed the pecuniary loss and disability as 30%. 14. A steel rod was placed inside femur as a result of which he suffered 30% disability and unable to ride bicycle for performing day to day business and also unable to do any hard work. 13. On the basis of such medical documents and evidence, the learned Tribunal assessed the pecuniary loss and disability as 30%. 14. As regards the income, it was the evidence of the claimant that he used to sale fish in the market and thereby earn Rs. 350 to Rs. 400 per day. That apart, he used to cultivate as an adhiar and thereby he earn Rs. 10,000/- per month. His witnesses have also stated about the livelihood of the claimant as a fisherman as well as cultivator but no any definite proof of income could be produced. 15. The learned Tribunal, relying upon the decision of Raj Kumar vs. Ajoy Kumar and another, (2011) 1 SCC 343 and also the other evidence on record, has accepted the disability as 30% and by taking the income of the claimant as Rs. 4500/- per month, calculated the dependency at Rs. 16,200/- (30% of the yearly income of Rs. 54,000/-). Applying the multiplier 17 and other amounts under the head of pain and sufferings, loss of amenities of live, etc., a total amount of Rs. 3,23,000/- was awarded to the claimant with interest @7.5% per annum. Assessing the liability, the learned Tribunal directed both the Insurance Companies i.e. 75% of the awarded compensation is to be borne by the ICICI Lombard General Insurance Co. Ltd. and the remaining 25% is to be borne by the New India Assurance Co. Ltd. 16. The claimant however being dissatisfied with the amount to be on the lower side, carried the matter to appeal on the ground that despite there being specific evidence on the part of the claimant about his dual income from cultivation and selling of fish, the learned Tribunal has assessed his income on a very lower side @ Rs. 4500/- per month, which should be much higher. Relying on a decision of the Apex Court reported in (Syed Sadiq and Others vs. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735 ), it has been contended that in view of the ratio laid down in the said case, where the monthly income of a vegetable vendor is assessed by the Hon'ble Supreme Court as Rs. Relying on a decision of the Apex Court reported in (Syed Sadiq and Others vs. Divisional Manager, United India Insurance Co. Ltd., (2014) 2 SCC 735 ), it has been contended that in view of the ratio laid down in the said case, where the monthly income of a vegetable vendor is assessed by the Hon'ble Supreme Court as Rs. 6500/- per month, without insisting for documents, the income of the present petition who is in a better position than the vegetable vendor, his income should have been taken at least Rs. 10,000/- per month. Further it is contended by the learned counsel for the appellant that as for the injuries he sustained, the claimant's income has been badly affected for his disability. So his pecuniary loss should have been assessed by the learned Tribunal @50%. 17. It contends that as the claimant earns his livelihood through manual labour, his income was badly affected for such disability he incurred. On this account and also with prayer to consider enhancement on the other accounts like pain and suffering, future prospect, etc., the claimant has made a prayer for enhancement of the award to a reasonable rate. 18. The learned counsels for both the Insurance Companies have contended that there is no definite proof that the claimant/appellant also carried the work of cultivation as has been contended by him. That apart, there is also no such positive evidence that he used to earn good amount of money as a seller of fish. The evidence of PW.4 Labodar Das, who has given a certificate regarding the income of the claimant by selling of fish, is also stated to be not a proper document to rely upon the income of the claimant. 19. As regards the disability that has been assessed by the Tribunal, it has been stated that it calls for no interference and they have not challenged the said findings by way of appeal. It has been submitted in firm vehemence by the learned counsels for the Insurance Companies that the award so passed by the learned Tribunal has already been passed properly having due regard to the evidence on record and there being no any definite evidence as about the income and the fact that he has suffered in earning his livelihood due to the disability suffered, there could be no any enhancement. 20. 20. Further it has also been contended that the claimant himself is found negligent for his own sufferings. So he is not entitled to get any amount on account of future prospect and medical treatment. It has been pointed out by the claimant in his evidence stated that he was advised by the Doctor to remove the steel rod, that was inserted in his left femur but he himself did not adhere to remove the same and the said exercise he could have been done in the Govt. Hospital or GMCH, where he earlier took treatment and as such there cannot be any claim under the head of future treatment. 21. I have considered the rival submissions made by learned counsels for the parties and perused the entire materials on record and the LCR. 22. So far as the accident as well as the other documents regarding treatment, there is no dispute. Now the only thing to be considered about the fact whether the income of the claimant can be assessed on a higher side or the disability can be taken as 50%, as has been claimed by the appellant. On perusal of evidence on record it reveals that there is no definite evidence as regards the income of the claimant and it now becomes a matter of assumption and presumption about the income. However, there is no rebuttal evidence that the claimant used to earn his livelihood as a cultivator as well as a fisherman. In that prospect and also in view of the decision rendered by the Hon'ble Apex Court, where the income of the vegetable vendor has been assessed as Rs. 6500/- per month, without any valid document, in the present case, on the basis of oral and corroborating evidence we can perhaps accept the income of the claimant as Rs. 6000/- per month. 23. On the other hand, the evidence of Doctor it is not at all clear and specific about the disablement of the claimant to the effect that it will affect his earning capacity to the extent of 50%. In this context, accepting the findings of the Medical Officer as well as the claimant that he cannot ride bicycle to carry on his business of selling fish, no any other incapacity has been reflected. That being so, assessment of 30% disablement is found to be proper. In this context, accepting the findings of the Medical Officer as well as the claimant that he cannot ride bicycle to carry on his business of selling fish, no any other incapacity has been reflected. That being so, assessment of 30% disablement is found to be proper. However it is to be noted that the claimant undergone treatment after the incident at several hospitals and he was also admitted in the GMCH on 05.01.2011 and discharged on 15.01.2011 and due to the fracture, he had suffered restriction of movement for a certain period. 24. On that account the appellant is entitled to certain compensation under the head of miscellaneous expenses for the cost incurred during such period while carrying out the treatment. 25. Taking into account all the above, following amount of compensation is calculated, which according to this Court is just and proper to be awarded to the claimant: (1) Loss of income: 30% of Rs. 6,000/- X 12 X 17 Rs.3,67,200/- (2) Loss of amenities in life Rs.15,000/- (3) Miscellaneous expenses Rs.15,000/- (4) Future medical expenses Rs.30,000/- (5) For pain and sufferings Rs.40,000/- (6) Medical expenses incurred during treatment Rs.25,000/- -------------- Total Rs. 4,92,200/- -------------- (Rupees four lakh ninety two thousand two hundred) only. 26. In view of the above, the amount of compensation is enhanced to an amount of Rs. 4,92,200/- (Rupees four lakh ninety two thousand two hundred) along with interest @7.5% per annum from the date of filing till realization. Both the insurance companies are hereby directed to indemnify the claimant as per the ratio indicated by the learned Tribunal, by adjusting the earlier amount already paid and the same will be deposited before the Registry within six weeks from today. The claimant will withdraw the same on due identification by the engaged counsel. 27. With the above modification in the award, the appeal stands partly allowed. 28. Send back the LCR immediately with a copy of the order.