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2019 DIGILAW 458 (GAU)

Sanatan Baishya v. Managing Director, ASTC

2019-04-09

NELSON SAILO

body2019
JUDGMENT : 1. Heard Mr. J. Kalita, the learned counsel for the appellant as well as Mr. S.K. Barkataki, the learned counsel for the ASTC (respondent Nos. 1 & 3). None appears for the respondent No. 2. 2. It is seen that the notice sent upon the respondent No. 2 returned back with a postal remark "Dead". Therefore, there is no other option but to hear the appeal without the respondent No. 2, since he has not been substituted by his legal heir. 3. The appellant being aggrieved with the Judgment & Award dated 09.12.2013, passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Nalbari in MAC Case No. 11/2011 has preferred the instant appeal seeking enhancement of the compensation that was awarded to him. 4. The case of the appellant in brief is that on 30.08.2009 when he was coming towards Nalbari mid-town on a bicycle, he was knocked down from behind by a Bus, belonging to the respondent Nos. 1 & 3, bearing registration No. AS-20/0942. As a result, the appellant sustained severe injuries. He was brought to SMK Civil Hospital in Nalbari but due to want of better medical facilities, he was shifted to Dr. N.M.B. Baruah Nursing Home, and then to Gauhati Medical College & Hospital in Guwahati. He was admitted in the Gauhati Medical College & Hospital on 02.09.2009 as an Indoor Patient and he was discharged on 08.09.2009. As a result of the accident and due to the injury sustained by him, he could not walk properly and was advised by the Doctor to undergo Physiotherapy. Accordingly, the appellant took Physiotherapy at "Care Home" in Nalbari for a total number of 369 days. 5. The appellant therefore filed a claim application before the Motor Accident Claims Tribunal at Nalbari, which was registered as MAC Case No. 11/2011 and he claimed a sum of Rs. 3 lakhs as compensation for the injury and loss suffered by him. The appellant submitted a claim under Section 140 as well as Section 166 of the Motor Vehicles Act, 1988 (MV Act). The appellant in order to establish his claim examined 2 witnesses, including himself. The respondent ASTC did not examine any witness. The learned Tribunal consequently passed the impugned Judgment & Award on 09.12.2013, awarding the appellant a sum of Rs. The appellant in order to establish his claim examined 2 witnesses, including himself. The respondent ASTC did not examine any witness. The learned Tribunal consequently passed the impugned Judgment & Award on 09.12.2013, awarding the appellant a sum of Rs. 15,600/- (Rupees fifteen thousand six hundred) only as compensation along with interest @ 7.5% per annum to be paid by the Managing Director, ASTC and the opposite party No. 2 i.e. Driver of the vehicle involved and the respondent No. 2 in the present appeal. 6. Being aggrieved, the appellant filed the present appeal on 11.03.2014 seeking enhancement of the compensation. 7. Mr. J. Kalita, the learned counsel for the appellant submits that the appellant was admitted to the Gauhati Medical College & Hospital on 02.09.2009 and discharged on 08.09.2009. During his hospitalization, the Doctor advised him to undergo Physiotherapy since he was not able to walk and move without the aid of a stick. Accordingly, the appellant took physiotherapy from 17.05.2010 up to 08.12.2010. Thereafter, since his condition did not improve, he took further Physiotherapy from the month of January, 2011 up to the month of October, 2011. In all, he was under Physiotherapy treatment for 369 days. In support of his claim, the appellant exhibited Certificate issued by the Physiotherapist as Exhibit-8 (xxvi) and Exhibit No. 8 (xxvii). The learned counsel further submits that the appellant prior to the accident was a Satriya Dance Teacher and for which, he was being paid monthly salary by Shivaam Suralay Songeet Kala Kendra School, Paschim Tamulpur in the district of Baksa amongst others. He submits that in support of his claim, the appellant also exhibited Certificates issued by the Dance Schools. Mr. J. Kalita, the learned counsel submits that the documents exhibited by the appellant were not objected to by the respondents and therefore, the learned Tribunal in consideration thereof, ought to have awarded a reasonable compensation to the appellant. He further submits that although the learned Tribunal adopted the notional income of Rs. 3000/- per month to have been earned by the appellant but the said calculation was only for the period of 6 days i.e., the period during which the appellant was admitted to the Gauhati Medical College & Hospital. As such, only a meager amount of Rs. 600/- was awarded by the learned Tribunal towards loss of income of the appellant. 8. Mr. As such, only a meager amount of Rs. 600/- was awarded by the learned Tribunal towards loss of income of the appellant. 8. Mr. S.K. Barkataki, the learned counsel for the respondent Nos. 1 & 3 on the other hand submits that the appellant no doubt suffered some injuries but the same cannot be termed as grievous injuries. He submits that the appellant was admitted in the hospital only for a short duration and he has not produced any finding of a duly constituted Medical Board to show that he suffered any disability. He further submits that the appellant no doubt submitted a Certificate, issued by the Physiotherapist to show that he had under taken Physiotherapy but however, the appellant failed to examine the author of the Certificate before the learned Tribunal. Therefore, the Certificate exhibited by the appellant cannot be relied upon. The Certificate issued by the Principal of Shivaam Suralay Songeet Kala Kendra School as well as the Secretary of Shivaam Suralay Songeet Kala Kendra School, Paschim Tamulpur, including the one issued by Samalay Sangeet Vidyalay, Dhamdhama cannot be relied upon, inasmuch as, not only does it not disclose the amount being paid to the appellant for the service rendered by him as a Dance Teacher but the authors of the Certificates were not examined before the Tribunal. Therefore, considering the nature of the injuries said to have been sustained by the appellant, the learned Tribunal is only justified in awarding the compensation to the appellant in terms of the impugned Judgment & Award dated 09.12.2013. Hence, appeal being without any merit, the same should be dismissed. 9. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record, including the LCR requisitioned from the Tribunal. 10. As may be noticed, the appellant in support of his claim examined himself as well as one Shakti Prasad Deka as claimants witness. He exhibited medical investigation requisition slips, medical advice slips, discharge certificate, medical receipts, certificates showing Physiotherapy treatment and certificates showing that he was working as Dance Teacher amongst others. It is also noticed that medical receipts amounting to Rs. 7121/- has been exhibited, while receipts towards accommodation amounting to Rs. 600/- has also been enclosed. The fact that the appellant was knocked down by the Bus belonging to the respondent Nos. It is also noticed that medical receipts amounting to Rs. 7121/- has been exhibited, while receipts towards accommodation amounting to Rs. 600/- has also been enclosed. The fact that the appellant was knocked down by the Bus belonging to the respondent Nos. 1 & 3 on 30.08.2009 is not disputed. Further, the fact that the appellant being brought to SMK Civil Hospital in Nalbari and Dr. N.M.B. Baruah Nursing Home and ultimately to Gauhati Medical College & Hospital in Guwahati, where he was admitted for 6 (six) days is not disputed. Besides producing medical receipts of Rs. 7121/-, the appellant has not produced any receipts towards his Physiotherapy treatment. Likewise, the certificate issued by the Dance School also does not divulge payment of any amount of salary to the appellant. The respondent Nos. 1 & 3 on their part did not examine any witness except for cross-examining the appellant and the other witness. The Tribunal upon considering the case presented by the appellant awarded the appellant the following relief:- (i) A sum of Rs. 5,000/- towards pain and suffering. (ii) A sum of Rs. 5,000/- towards medical expenses. (iii) A sum of Rs. 3,000/- towards special diet and attender charge during hospitalization. (iv) A sum of Rs. 2,000/- towards transportation charge. (v) A sum of Rs. 600/- towards loss of income for 6 (six) days during hospitalization. Thus, a total sum of Rs. 15,600/- was awarded to the appellant along with interest @ of 7.5% per annum from the date of filing of the claim till final realization. 11. From what can be noticed above is that the learned Tribunal apparently has awarded lump sum compensation to the appellant which cannot be said to be unreasonable under the facts and circumstances of the case. Considering the manner in which the appellant has suffered on account of the accident, I am of the considered opinion that ends of justice will be served, if the compensation awarded to the appellant is enhanced or modified as follows :- (i) Rs. 10,000/- towards pain and suffering. (ii) Rs. 7,121/-, which is the actual medical expense from the receipts submitted by the appellant. (iii) A sum of Rs. 5,000/- towards special diet and attender charge during hospitalization. (iv) A sum of Rs. 3,000/- towards transportation charge. (v) A lump sum amount of Rs. 3,000/- towards loss of income. Total Rs. 28,121/-, say Rs. (ii) Rs. 7,121/-, which is the actual medical expense from the receipts submitted by the appellant. (iii) A sum of Rs. 5,000/- towards special diet and attender charge during hospitalization. (iv) A sum of Rs. 3,000/- towards transportation charge. (v) A lump sum amount of Rs. 3,000/- towards loss of income. Total Rs. 28,121/-, say Rs. 28,000/- (Rupees twenty eight thousand) only. 12. The appellant shall therefore be entitled to a sum of Rs. Rs. 28,000/- (Rupees twenty eight thousand) only as compensation with interest @ 7.5% per annum from the date of filing the claim application i.e., 15.02.2011 till final realization. The awarded amount of compensation shall be paid by the respondent Nos. 1 & 3 by depositing the same before the Tribunal concerned within a period of 2 (two) months from the date of receipt of a certified copy of this Judgment. 13. Appeal accordingly stands disposed of on the above modified terms. Payments already made to the appellant, if any, shall be adjusted. 14. LCR be sent back to the Tribunal.