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2021 DIGILAW 2 (TRI)

Pradip Kumar Dey v. Biswanath Sen

2021-01-06

ARINDAM LODH

body2021
JUDGMENT Arindam Lodh, J. - The instant appeal is directed against the Judgment and award dated 26.07.2017, passed by the learned Motor Accident Claims Tribunal(Court No.2), Agartala, West Tripura in connection with TS (MAC) 249 of 2012, for enhancement of the compensation. 2. Heard Mrs. S. Deb (Gupta), learned counsel appearing for the claimant-appellant. Also heard Mr. A. Gan Chaudhury, learned counsel appearing for the insurance company, the respondent No.2. 3. The brief facts are that the appellant herein filed an application under Section 166 of the Motor Vehicles Act, 1988 [for short MV Act] claiming compensation to the tune of Rs.73,00,000/- for his disability out of the accident occurred on 04.11.2011 on Agartala-Airport road due to rash and negligent driving of the motor cycle bearing registration No.TR03-A-4923. It is stated in the claim application that the claimant-appellant was travelling through the said motor cycle as a pillion rider at that time another motor cycle bearing registration No. TR02-A-9787 coming from the same direction at an abnormal speed dashed the motor cycle in which the claimant was travelling. Due to the said accident the appellant had suffered severe injuries on various parts of his body more particularly, in his left leg and became unconscious. He was taken to AGMC and GBP Hospital, Agartala where he was treated for few days and considering his precarious condition he was air-dashed to SSKM/AMRI Hospital, Kolkata on reference. He got admitted to Apollo Gleneagles Hospital, Kolkata for specialized treatment. He underwent major surgery. Steel plates were inserted in his left proximal tibia and in course of treatment he had to incur huge expenditure. The bills and vouchers were produced before the learned Tribunal in course of trial. He also produced disability certificate issued by the competent authority of the AGMC and GBP Hospital. The owner of the offending vehicle as well as the insurance company had contested the claim application. The insurance company did not adduce evidence. 4. Having considered all material evidence and relevant facts, the learned tribunal had awarded a sum of Rs.05,01,448/- as compensation in favour of the claimant-appellant. 5. Being aggrieved by and dis-satisfied with the said award the present appeal has been preferred by the claimant for enhancement of the award. 6. Mrs. The insurance company did not adduce evidence. 4. Having considered all material evidence and relevant facts, the learned tribunal had awarded a sum of Rs.05,01,448/- as compensation in favour of the claimant-appellant. 5. Being aggrieved by and dis-satisfied with the said award the present appeal has been preferred by the claimant for enhancement of the award. 6. Mrs. Deb(Gupta), learned counsel appearing for the appellant has preferred to confine her submissions within the following points:- (i) Exbt.15 i.e. the advisory note issued by the Apollo Gleneagles Hospital to the effect that the claimant was required to undergo another surgery to remove the plates and screws implanted in his leg in course of treatment wherein the estimated cost also was mentioned. The cost to be incurred is estimated to the tune of Rs. 1,66,300/-[approx.] was not considered by the learned Tribunal. (ii) The claimant-appellant had adduced evidence that he was allowed to receive only half pay leave and for that reason, the claimant-appellant is entitled to encash the remaining half pay out of his salary during the period of his treatment i.e. for 176 days. (iii) The claimant-appellant was further entitled to compensation for loss of future income even after his retirement. In support of loss of future income even after the retirement, Mrs. S. Deb (Gupta), learned counsel appearing for the claimant-appellant has relied upon the decision of this Court rendered in National Insurance Company Ltd. Vs. Sabita Biswas, reported in (2015) 1 TLR 574. 7. On the other hand, Mr. Gan Chaudhury, learned counsel appearing for the insurance company has submitted that learned Tribunal had considered extent of loss of income of the claimant-appellant. He has drawn my attention to the findings of the learned Tribunal wherein the learned Tribunal considered the disability certificate of the claimant-appellant and quantified the loss of future earnings. 8. Mr. Gan Chaudhury, learned counsel for the insurance company has particularly drawn my attention to the observation made by the learned Tribunal to the effect that there is no evidence to show that due to 40% physical disability suffered by him in his left Proximal Tibia and left knee of upper leg, he is not in a position to earn any amount for his livelihood or he has totally lost his earning capacity. 9. 9. In the backdrop of facts, I have considered the submissions advanced by the learned counsels appearing for the parties to the lis. Firstly, I have given my due consideration to the findings of the learned Tribunal to the effect that there is no evidence to show the extent of functional disability suffered by the claimant-appellant. To award just and reasonable compensation in favour of a person who suffers accident and either lost his life or becomes permanently disabled or suffers severe injury to his/her person, the court has to decide the facts and circumstances of eash case. Motor Vehicles Act is public welfare legislation. A person who suffers locomotive disability can be said to have suffered a lot and it can easily be inferred that his normal movement has been impaired due to such disability. True it is, in the instant case, in the certificate there is no column indicating the extent of functional disability suffered by a person out of an accident. The insurance company in the instant case did not adduce any evidence that the claimant did not suffer any functional disability. In his evidence the claimant-appellant as PW-1, has specifically stated that his normal movement has been permanently impaired. 10. A Co-ordinate Bench of this Court in the case of Sabita Biswas (Supra) has held that- "29. Having held so, the fact remains that after 5 years, the claimant would have retired from service and after retirement if he was an able bodied man, he could have done some work at least. He could have even worked as a manual labourer if nothing else and, therefore, from the age of 58 years onwards he would be entitled to some compensation but this compensation is not relatable to the salary which he was drawing but with regard to the wages which he could have earned at the time of his retirement. Taking a conservative view of the matter, the claimant would have earned at least Rs.5,000/- per month and his disability is 100% as far as his earning capacity is concerned. Therefore, the disability is assessed at Rs. 60,000/- per year and multiplier of 9 is applicable which means compensation on loss of income comes to Rs.5,40,000." 11. Taking a conservative view of the matter, the claimant would have earned at least Rs.5,000/- per month and his disability is 100% as far as his earning capacity is concerned. Therefore, the disability is assessed at Rs. 60,000/- per year and multiplier of 9 is applicable which means compensation on loss of income comes to Rs.5,40,000." 11. Keeping in mind the above principle laid down by this Court, I am of the considered view that the appellant could have earned at leastRs.5000/- per month as a daily labourer even after his retirement. At the time of accident the claimant-appellant was aged 56 years, so, multiplier will be 9 under the second schedule of the MV Act. In the instant case, the disability certificate shows that the claimant-appellant has suffered disability to the extent of 40%. Hence, for the 40% disability, the actual loss of his yearly earning comes to Rs. 60,000/- X 40%= Rs.24,000/-. Now multiplying with 9, it comes to Rs.24,000 X 9 = Rs.2,16,000/-. Thus, the claimant is entitled to get Rs.2,16,000/- for the loss of his future income. 12. Secondly, the claimant-appellant has been allowed to go on half pay leave during his treatment for 176 days, so he has been deprived of half pay of his salary for those 176 days. In my opinion, the claimant-appellant is entitled to the encashment of half of his salary during those days and it is assessed at Rs. 1,65,000/- against half pay leave encashment. 13. Thirdly, I agree with the submission of the learned counsel appearing for the appellant that Exbt.15, the certificate issued by the Apollo Gleneagles Hospital for future expenditure which has to be incurred by the claimant-appellant. The estimated cost according to the said Hospital is Rs. 1,66,300 (approx.). So, the claimant-appellant is also entitled to get this amount to meet the future expenditure. 14. Accordingly, the award is enhanced, and the compensation on the aforesaid heads works out at Rs. Rs.2,16,000/-+Rs. 1,65,000/-+Rs. 1,66,300/- =Rs.5,47,300/-. I do not find any reason to interfere with the other aspects of the judgment passed by the learned Tribunal. 15. The appeal is allowed to the extent as indicated above. 16. 14. Accordingly, the award is enhanced, and the compensation on the aforesaid heads works out at Rs. Rs.2,16,000/-+Rs. 1,65,000/-+Rs. 1,66,300/- =Rs.5,47,300/-. I do not find any reason to interfere with the other aspects of the judgment passed by the learned Tribunal. 15. The appeal is allowed to the extent as indicated above. 16. The said enhanced amount of Rs.5,47,300/-(Rupees five lakhs forty seven thousand three hundred) shall be paid to the claimant-appellant within a period of 3 (three) months from the date of receipt of the copy of this judgment along with interest @ 7.5% per annum from the date of filing of the claim application. The Insurance Company shall deposit the aforesaid enhanced compensation to the learned Tribunal 17. The appeal accordingly stands disposed of. 18. Send back the L.C. records along with a copy of this judgment.