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2018 DIGILAW 353 (CAL)

Jagadish Singh v. Ranjit Kumar Dawn

2018-05-04

DIPANKAR DATTA, PROTIK PRAKASH BANERJEE

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JUDGMENT : 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereafter the ‘Act’) is directed against an award dated 21st February, 2007 passed by the Motor Accident Claims Tribunal, First Court, Asansol in M.A.C. Case No. 109 of 2005. 2. The appellant was the claimant before the tribunal. He had suffered an injury on his right forearm as a result of a motor vehicular accident on 1st September, 2003. It was certified by the medical board of Sub-Divisional Hospital, Asansol that the claimant had suffered 45% disability having neural weakness of right hand and forearm. 3. In the application under Section 166 of the Act, the appellant claimed Rs.24,00,000/-on account of compensation from the owner of the offending vehicle or the insurer thereof, whoever is found liable. Considering the evidence that was adduced, the tribunal was of the view that the appellant had failed to establish that he was earning Rs.31,500/- as monthly salary. The tribunal was further of the view that the disability certificate issued by the Sub-Divisional Hospital, Asansol could not be believed, although we find that no specific reason was assigned as to why the certificate did not appeal to the tribunal to be creditworthy. A finding was also recorded by the tribunal that the appellant had not been rendered jobless because of the injuries suffered by him. Despite these perceived infirmities connected with the claim of the appellant, the tribunal proceeded to determine compensation in a sum of Rs.2,50,000/-(Rs.2,00,000/-for medical treatment & Rs.50,000/- for pain and sufferings) to be paid by the insurance company within two months from date of delivery of judgment failing which the said sum would carry interest @ 6% per annum. 4. We have heard Mr. Samanta, learned advocate for the appellant and Mr. Pahari, learned advocate for the respondent insurer. 5. The accident having been established, we need not refer to the evidence in that respect in detail. 6. The finding of the tribunal that the appellant had failed to establish his monthly earning of Rs.31,500/- cannot be held to suffer from any infirmity. Mr. Samanta, however, has referred to a ‘pay slip’ which is available in the lower court records. On that basis, he has contended that the tribunal ought to have in the least, held the appellant to be drawing Rs.3,575/-as his monthly salary from the Shipping Corporation of India. Mr. Samanta, however, has referred to a ‘pay slip’ which is available in the lower court records. On that basis, he has contended that the tribunal ought to have in the least, held the appellant to be drawing Rs.3,575/-as his monthly salary from the Shipping Corporation of India. However, unfortunately, we find that the said document was not led in evidence in a manner known to law. The said document found its way in the records of the tribunal by way of ‘firisti’. We, therefore, cannot accept the said document as proof of monthly salary of the appellant. 7. However, we have kept in mind the decision in Laxmi Devi and others Vs. Mohammad Tabbar and another reported in 2008 (2) T.A.C. 394 (S.C.) and accordingly, hold that the tribunal ought to have proceeded on the basis that the appellant could have earned Rs.100.00 per day, meaning thereby that he had an earning of Rs.36,000.00 per year. 8. Turning our attention to the disability certificate issued by the Sub-Divisional Hospital, Asansol, we find that P.Ws. 3 & 4 before the tribunal were doctors who had examined the appellant and were signatories to such certificate. As has been noted earlier, the tribunal did not assign a single reason as to why the disability certificate was found to be unreliable. The oral evidence of P.Ws 3 & 4 could not be impeached even by the insurer in course of cross-examination and therefore, the tribunal committed gross error in not accepting the disability certificate produced by the appellant. The disability certificate certified that the appellant had suffered 45% disability and, therefore, this aspect shall be kept in mind by us while we proceed to redetermine compensation payable to the appellant. 9. In dealing with cases of disability arising out of motor accidents, the laid down in Arvind Kumar Mishra Vs. New India Assurance Company Limited reported in 2010 (10) SCC 254 and Raj Kumar Vs. Ajay Kumar & Anr. reported in 2011 (1) SCC 343 would guide us to determine appropriate quantum of compensation payable to a victim. The views taken in the said decisions have also been followed in a subsequent decision in Govind Yadav Vs. New India Insurance Co. Ltd. reported in 2012 (1) T.A.C. 1 (S.C.). 10. We are conscious that the tribunal did not have the benefit of perusal of the aforesaid decisions. The views taken in the said decisions have also been followed in a subsequent decision in Govind Yadav Vs. New India Insurance Co. Ltd. reported in 2012 (1) T.A.C. 1 (S.C.). 10. We are conscious that the tribunal did not have the benefit of perusal of the aforesaid decisions. However, the appeal being a continuation of the original claim application, we have no hesitation in applying the law laid down in the aforesaid three decisions. 11. We, therefore, proceed to re-assess the amount of compensation payable to the appellant in the manner as follows :- Sl No. Heads Calculation (i) Loss of earning Rs.16,200/- (ii) Compensation after multiplier of 15 is applied Rs.16,200/-X15 = Rs.2,43,000/- (iii) Medical treatment Rs.2,00,000/- (iv) Suffering of pain and trauma Rs.50,000/- (v) Loss of amenities Rs.25,000/- Total Compensation Rs.5,18,000/- 12. The said sum of compensation shall carry interest @6% per annum from the date of filing of the claim application till full payment. 13. Since the award was satisfied by the insurer, the appellant would be entitled to the balance sum. The insurance company is directed to make payment thereof by remitting it in favour of the appellant by National Electronic Fund Transfer (NEFT) within a period of two months from date of receipt of a certified copy of this judgment and order. Mr. Samanta shall inform Mr. Pahari within Tuesday next (8th May, 2018), particulars of the bank account maintained by the appellant in which remittance is to be made. 14. With the aforesaid modification of the impugned award, the appeal stands disposed of. There shall be no order for costs. 15. The lower court records shall be sent down to the tribunal by the department immediately. 16. Urgent photostat certified copy of this judgment and order, if applied for, be given to the parties as expeditiously as possible.