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Tripura High Court · body

2020 DIGILAW 18 (TRI)

Pinki Roy v. Lekha Roy Chowdhury

2020-01-24

AKIL KURESHI

body2020
JUDGMENT 1. Heard learned counsel for the parties for final disposal of the appeal. This appeal is filed by the original claimant seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, West Tripura, Agartala in its judgment and award dated 17.12.2018 passed in T.S.(MAC) No.467 of 2013. [2] Brief facts are as under: The claimant was travelling in an auto rickshaw on 29.09.2013 in the afternoon hours when the vehicle collided with a Maruti car. She received serious injuries on her right leg for which she had to undertake extensive treatment and had to undergo operations. She was engaged in the tailoring job. She produced disability certificate of 30% and claimed compensation Rs.40,02,000/- inter alia on the ground that the loss of earning capacity was far more than the physical disability suffered by her. [3] At one stage her claim petition was dismissed because she could not produce the medical evidence of her disability. It was later on restored by the High Court upon which a fresh decision was rendered by the Tribunal which is impugned in this appeal. The Tribunal in the impugned judgment and award has awarded a total compensation of Rs.3,79,262/- under following different heads. 'Medicines & Medical Treatment Rs.32,662/- Loss of Income on Account of accident Rs.2,91,600/- Compensation on account of disability Rs.25,000/- Pain and Suffering ...................... Rs.10,000/- Conveyance Attendant Charges & Special diet ................... Rs.20,000/-' [4] The claimant was examined before the Claims Tribunal as witness No.1. In her deposition she had stated that during the accident she had received serious injuries for which she had to be treated at GBP hospital, Agartala as an indoor patient from 29.09.2013 upto 23.11.2013. An operation was performed on her knee on 08.11.2013. Thereafter, she was treated as an outdoor patient. She produced various documents such as the bills and payments of medical expenditure and disability certificate. [5] The claimant examined Dr. Tusar Kanti Chowdhury as P.W.2, who was a member of the District Disability Board, West Tripura. He had been a member of the board when the disability certificate was issued in favour of the claimant. Her disability was assessed at 30% since the claimant was not able to perform as a normal person. Reassessment was recommended after five years. In the cross-examination, he stated that the certificate of injury was temporary and would have to be reassessed after five years. Her disability was assessed at 30% since the claimant was not able to perform as a normal person. Reassessment was recommended after five years. In the cross-examination, he stated that the certificate of injury was temporary and would have to be reassessed after five years. He clarified that her injuries would not permit her to perform her tailoring job as a normal person. [6] Based on such evidence, the Claims Tribunal after believing the income of the injured at the time of accident at Rs.9,000/- per month, awarded a sum of Rs.2,91,600/- for a total of 32 months and 12 days of forced layoff. This period the Tribunal assessed on the basis of the conclusion that for initial period of 2 years after the accident the claimant could not have been able to perform any work at all and thereafter she had to undergo an operation for removal of the implant previously inserted for which she was hospitalized on 07.06.2016 and discharged on 12.06.2016. Noticeably, the Tribunal granted no compensation for future loss of income on the basis that the doctor had opined that the injury was temporary. The Tribunal had awarded Rs.25,000/- towards compensation on account of disability and Rs.10,000/- for pain and suffering. These three areas of compensation require consideration and deliberation. [7] Firstly, I find that the Tribunal committed some error in holding for a full period of 32 months the claimant could not have been able to perform any work at all. There was no direct evidence of this assessment. The Tribunal presumed that right from the date of accident till the claimant underwent second surgery for removal of the implant, she would not have performed any work at all. This in my opinion was not correct. After reasonable recovery the claimant could have been able to do her work partially carrying the disability with her. [8] At the same time the Tribunal also committed an error in believing that the disability was temporary. Neither in the medical certificate of injury nor in his deposition Dr. Tusar Kanti Chowdhury, P.W.2 it has been stated that such disability was temporary. The medical certificate of the board was clear and certified that the claimant had suffered disability to the extent of 30% (of a body as a whole). Neither in the medical certificate of injury nor in his deposition Dr. Tusar Kanti Chowdhury, P.W.2 it has been stated that such disability was temporary. The medical certificate of the board was clear and certified that the claimant had suffered disability to the extent of 30% (of a body as a whole). Significantly, the certificate was based on the physical examination of the claimant by the medical board as late as on 01.08.2018. This was nearly 5 years after the date of accident. This certificate carried two printed columns. (i) 'This condition is progressive' and (ii) 'reassessment is recommended after 5 year 0 month and validity of certificate upto 01 August, 2023'. This certificate, therefore, did not in any manner suggest that the condition of the claimant was likely to improve over a period of time. When Dr. Tusar Kanti Chowdhury, P.W.2 stated in his cross-examination that the certificate as well as injury is temporary and the same would have to be reassessed after 5 years, in no way, he suggested that there is a likelihood of the improvement in the condition of the claimant. He merely reiterated what the certificate contained namely that the claimant should be examined again after 5 years. [9] Firstly, in the present case the Tribunal committed an error in appreciating the contents of the said injury certificate and the doctor s deposition. I am informed that in the State of Tripura there is a pattern of the examination of an injured claimant of motor accident claim petition by a medical board which assesses the injury only for a limited period and calls for revision of such injury after 5 years. I am not sure the source of this practice having been developed. I have serious doubt about the correctness and practicality of such practice. In an appropriate case the legality of this process will have to be undergone. [10] In the present case, however, I am satisfied that neither the injury certificate nor the doctor s deposition suggested any possibility of improvement to the condition of the claimant with passage of time. The Claims Tribunal, therefore, committed an error in not awarding any compensation for future loss of income. The culmination of this discussion would lead to the following result. As per the Tribunal, the claimant was earning Rs.9,000/- per month at the time of accident. The Claims Tribunal, therefore, committed an error in not awarding any compensation for future loss of income. The culmination of this discussion would lead to the following result. As per the Tribunal, the claimant was earning Rs.9,000/- per month at the time of accident. The period of no activity can be reduced to 1 year. The claimant would, therefore, receive a sum of Rs.1,08,000/- for 1 year of no earning @ Rs.9,000/- per month. The claimant was aged about 26 years at the time of accident. As per the decision of Supreme Court in case of National Insurance Company Limited v. Pranay Sethi and others reported in (2017) 16 SCC 680 , there would be 40% increase for future income. Her prospective monthly income would come to Rs.12,600/-. Looking to her disability, there shall be 30% loss of earning capacity. There would therefore be a monthly loss of Rs.3,780/- i.e. Rs.45,360/- per annum. Multiplier of 17 would be applied as per the decision of Supreme Court in case of Sarla Verma (Smt) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 . Her total future loss of income would, therefore, come to Rs.7,71,120/- added by Rs.1,0,8000/- of actual loss of income. The total loss of income would come to Rs.8,79,120/-. [11] The Claims Tribunal has awarded Rs.25,000/- titled as compensation on account of disability which, in other words, is for loss of enjoyment of amenities of life. This would also include her reduced matrimonial prospects, she being the unmarried lady. With a prolonged limp in her gait, her marriage prospect would certainly come down. A total compensation of Rs.50,000/- under this head would be appropriate. Further compensation of Rs.10,000/- for pain, shock and suffering is extremely low. She was treated as an indoor patient for close to two months in two different hospitals when she had to undergo two separate operations. A total compensation of Rs.50,000/- under this head is awarded. The rest of the amounts remain unchanged. The final calculation therefore would be as under : Medicine and medical treatment Rs.32,662/- Loss of income Rs.8,79,120/- Loss of enjoyment of amenities of life Rs.50,000/- Pain, shock and suffering Rs.50,000/- Conveyance and attendant charges Rs.20,000/- Total Rs.10,31,782/- The claimant has been awarded Rs.3,79,262/- by the Tribunal and would receive additional compensation of Rs. 6,52,520 /- under this appeal. The final calculation therefore would be as under : Medicine and medical treatment Rs.32,662/- Loss of income Rs.8,79,120/- Loss of enjoyment of amenities of life Rs.50,000/- Pain, shock and suffering Rs.50,000/- Conveyance and attendant charges Rs.20,000/- Total Rs.10,31,782/- The claimant has been awarded Rs.3,79,262/- by the Tribunal and would receive additional compensation of Rs. 6,52,520 /- under this appeal. Since previously the claim petition was dismissed because the claimant could not produce necessary evidence which has taken a considerable period of time in disposal of her claim petition, such amount would be awarded along with simple interest @ 7.5% from the date of judgment of the Claims Tribunal till actual payment. [12] Appeal is disposed of accordingly. Pending application(s), if any, also stands disposed of.