MAC CASE NO.185/2013: U/S 166 OF THE M.V.ACT. Member, MACT, Golaghat

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1 1 P a g e IN THE COURT OF THE MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, GOLAGHAT. MAC CASE NO.185/2013: U/S 166 OF THE M.V.ACT. Present: Md.A.U.Ahmed Member, MACT, Golaghat Sri Dilip Sarma Son of Sri Jogen Sarma Vill-Salikihat Do Borhani Gaon PS & Dist- Golaghat, Assam Versus Claimant 1. Sri Krishna Tamuly Son of Late Gunin Tamuly Vill-Ahomgaon PS & Dist- Golaghat, Assam ( Owner cum driver of vehicle No.AS-01-T-9954(Santro Car) 2. The Branch Manager, United India Isurance Company Ltd G.F.Road, Bengenakhuwa, Golaghat PS & Dist- Golaghat, Assam Policy No P Valid upto (Insurer of vehicle No.AS-01-T-9954(Santro Car) Opposite Parties

2 2 P a g e Advocates appeared:- For the Claimant Mr. J.Nath For the OP No.1 Mr. S.Nath For the Op No Mr.K.P.Singha. Date of Argument Date of Judgment JUDGMENT 1. This case arose from the petition No filed under sections 166/140 of the Motor Vehicle Act by the claimant named above where in he has prayed for compensation on account of injuries sustained in motor vehicle accident for which he became permanent total disabled person. 2. The case of the claimant as appeared in brief is that on while he was going on foot at the side of the road at the grass portion towards Bongaon Tinali, a motor vehicle bearing registration No. AS-01-T-9954 (Santro Car) coming from Golaghat towards Bongaon in rash and negligent manner knocked him down from back side as a result he sustained injuries on his left leg and rest part of body. Thereafter he was taken to K.K.Civil Hospital and was got admitted there for treatment. Seeing his seriousness he was referred to Jorhat Medical College Hospital. Accordingly he was taken to Jorhat Medical College Hospital and was got admitted there for treatment. He was treated there till There after he was taken to Pain and Fracture Clinic and Research Centre, Jorhat wherein he took treatment as indoor patient from to He spent a sum of Rs. 40, 000/-for his medical treatment. Due to injuries sustained in the said accident he became disabled person and lost his earning capacity at 100%. At the time of the occurrence he was 49 years old and by profession he was a businessman owning a wood and furniture shop. Hence this has come up.

3 3 P a g e 3. The op No.1 appeared and contested the case by filing written statement with a legal plea that the case is not maintainable denying the facts that at the relevant point of time the offending vehicle was being driven in rash and negligent manner, that the claimant sustained grievous injuries and lost earning capacity, he was 49 years old at the time of occurrence and that by profession he was businessman. It has been further stated that the accident in question was taken place due to fault of the claimant. Hence the case of the claimant is liable to be dismissed. 4. The op No.2 appeared and contested the case by filing written statement with a legal plea that the case is not maintainable and that there is no cause of action denying the facts that at the relevant point of time the offending vehicle was being driven in rash and negligent manner, that the claimant sustained grievous injuries and lost earning capacity, that he was 49 years old at the time of occurrence, that he suffered any disability of permanent in nature and that by profession he was businessman. Hence the case of the claimant is liable to be dismissed. 5. Upon pleadings of the parties and documents submitted, my predecessor framed the following issues: i. Whether there is rash and negligent driving on the part of the driver of vehicle No. AS-01- T-9945 that caused accident on at 2-30 PM at Bongaon Tin Ali under Golaghat Police Station? ii. iii. Whether Sri Dilip Sarmah sustained grievous injuries as a result of such accident? Whether the Claimant is entitled to get compensation? If so, what is the proper quantum?

4 4 P a g e iv. Any other relief? 6. During trial the claimant has examined two witnesses and exhibited some documents in support of his claim. The ops have examined none. DECISIONS AND REASONS THERE OF:= 7. I have very carefully gone through the arguments duly advanced by the Ld Lawyers of both sides as well as evidence on record. Now I would like to move on for issue-wise discussion. Issue No.1 8. The claimant has stated in his pleading as well as in his deposition on while he was going towards Bongaon Tin Ali on foot, the vehicle bearing registration No. AS-01-T-9954 coming from Golaghat towards Bongaon driven in rash and negligent manner at high speed knocked him down. On the other hand it has been stated in the written statements filed by the ops that at the relevant point of time, the offending vehicle was not driven in rash and negligent manner but to substantiate the same no evidence has been led. It is found that the ops have not challenged the fact averred in paragraph 9 of the compensation petition that in respect of alleged occurrence a criminal case under section 279/338 IPC was registered by Golaghat Police Station. Ext- 1 is the Accident Information Reportb prepared by I/C Traffic, Golaghat PS which shows that the offending vehicle was involved in the alleged accident. It also shows that in respect of the occurrence a criminal case under sections 279/338 IPC against the driver-cum - owner Sri Krishna Tamuly was registered. Apart from this, evidence of the claimant to that effect could not be impeached during crossexamination. In view discuss made above I find no way to discard the evidence of the claimant that at the relevant point of time, the offending vehicle was driven in rash and negligent manner at high

5 5 P a g e speed. Hence Issue No.1 is answered in positive in favour of the claimant. Issue No.2 9. This issue relates to the injuries sustained by the claimant. It has been stated in the petition in question that the claimant sustained compound fracture in both bones of left leg. The claimant is the injured person who examined himself as CW-1. CW- 2 is the medical officer who was a member, orthopedics of the District Medical Board, Golaghat. He has stated in his testimony that he examined the claimant and found him post operative case of both bones leg with Soft Tissues Injuries). Ext-5 is the certificate and Ext-5(1) is his signature. Ext-5(ii) is the signature of Dr. K.K. Dutta, chairman of the Board. CW-1 has stated that he was under treatment in Jorhat Medical College & Hospital and Ext-6 is the CT Scan Report. Ext-6 shows that the claimant sustained comminuted fracture. I find nothing to disbelieve the evidence of CW-2 and contents of Ext-5 and Ext-6. The fracture injury is termed as grievous injury. In view of the discussion made above I am of the opinion that the claimant Dilip Sarmah sustained grievous injuries as a result of the accident taken place on at 2-30 PM at Bongaon Tin Ali. Accordingly Issue No.2 is answered. Issue No This issue relates to entitlement of compensation as prayed for by the claimant as well as liability of the opposite parties to pay the compensation arising from the motor vehicle accident in question. In view of my discussions and opinions in the foregoing issues it can be said that the claimant is entitled to getting compensation. 11. The claimant has deposed in his testimony that he spent more than Rs. 80, 000/- for his medical treatment including hospitalization, nursing, food, medication, transportation, attendant etc. The claimant has submitted cash memos and bills of

6 6 P a g e Rs. 57, 754/- in respect of expenditure for his medical treatment. Ext-8 is the statement of expenditure for Rs. 57, 754/-. I have very carefully gone through Ext-8. I find nothing to disbelieve the expenditure of Rs. 57, 754/- for medical treatment. But I feel hesitation to accept the version of the claimant that he spent more than Rs. 80, 000/- for medical treatment. 12. Ext-2 is the discharge certificate issued by K.K. Civil Hospital, Golaghat which shows that the claimant was admitted in K.K.Civil Hospital. Ext-3 is discharge certificate which shows that the claimant was under treat from to in Jorhat Medical College & Hospital. Ext-4 is the discharge Certificate which shows that the claimant was under treatment in Pain & Fracture Clinic & Research Centre, Jorhat from From the evidence available with record shows major medical treat was completed within 15 days. The claimant is a resident of Golaghat District and his treatment was done in Jorhat. 13. The claimant has stated in his evidence that he was working as a Carpenter and used to earn Rs. 300/- per day. In the petition in question he has stated that he was a businessman having a shop of wood and furniture. No certificate has been submitted showing that he was a Carpenter and earned Rs. 300/- per day. I feel hesitation to hold that the claimant was a Carpenter and earned Rs.300/- per day. However in absence of income certificate, his monthly income is taken to be Rs. 3000/- per month. 14. The claimant has further stated in his deposition that he needs a sum of Rs. 20, 000/- for his future medical treatment as ORIF is yet to be removed from left leg. In this regard no document has been submitted to substantiate his version. Ext-5 shows that the injuries are not likely to improve. However for the purpose of removing of ORIF a minor expenditure will come.

7 7 P a g e 15. For purpose of ascertaining multiplier, it is necessary to hold how old was the person at the time of the occurrence who suffered permanent disability as a result of injuries he sustained in the motor vehicle accident. The claimant has stated in his evidence that on the relevant point of time he was 42 years old. Ext-5 also shows that at the time of occurrence he was 42 years old. It has been stated in the petition filed under sections 166 and 140 of the MV Act that at the time of accident in question the claimant was 49 years old. It has been suggested by the opposite party No.2 that the claimant was more than 50 years at the time of occurrence. But in support of the suggestion no evidence has been led. The claimant has admitted that he has not submitted any age proof certificate. However I am constrained to hold that at the time of occurrence the claimant injured was 49 years old. Hence in view of the Second Schedule the multiplier is taken to be The claimant marked as CW-1 has stated in his deposition that he cannot rest pressure on his left leg and lost his active movement. He has further stated that he became disabled person and lost his earning capacity at 100%. Evidence of CW-2 and content of Ext-5 show that the claimant suffered permanent disability of 60% which is not likely to improve. Ext-5 was prepared by a Medical Board consisting of three physicians. CW-2 is one of the members of the said Boar. During the cross-examination of CW- 2 it has been suggested that percentage of permanent disability of the claimant was less than 60%. But in order to substantiate the said suggestion no evidence has been led and as such finding no alternative I am to rely upon the evidence of CW-2 and Ext-5. For the purpose of calculation of future loss of income, it is necessary to ascertain how much percentage of capacity of income of the claimant has been lost. How loss of future income in respect of the claimant who suffered a permanent disability rising from injuries sustained in motor accident is calculated a guide line is worked out in the Judgment of Basappa Versus T.Ramesh reported in MANU/SC/0917/2014 is reproduced below:

8 8 P a g e 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. It has been stated in the petition filed under sections 166/140 where from this case is arisen that the claimant was a businessman having a shop of wood and furniture. On the other the claimant has stated in his evidence that he was a carpenter. No certificate showing that he was a carpenter has been submitted. He has admitted in his cross-examination that he had a shop of furniture. From his cross-examination and averment made in the petition that it has become crystal clear that the claimant at the time of accident he was businessman dealing on wood and furniture. It is revealed that the claimant lost capacity of movement. It is also revealed that the claimant was to discharge managerial works in his firm. Major portion of managerial job can be done in sitting. Taking nature of his job and ratio laid down in the aforesaid Judgment it is held that the claimant lost his earning capacity at 40%.

9 9 P a g e 18. The claimant has claimed total compensation of 4, 60,000/- with interest there on at the rate of 9% per annum with effect from the date of filing the claim. In the view of the ration of the judgment in the case of Municipal Corporation of Delhi, Delhi Versus Upphar Tragedy Victims Association and Ors reported in MANU/SC/1255/2011 the rate of interest will be held to be 9%. 19. Admittedly the opposite No.2 is the insurer of the offending vehicle vides policy No P which was valid from to midnight on At the time of accident in question the offending vehicle was under coverage of the aforesaid police. 20. In view of discussions made above the compensation is calculated in the following manner:- i) Loss of future income Rs.3000 X 12 X 40% X 13= Rs 1, 87,200/- ii) Medical Expenses =Rs. 57, 754/- iii) Loss of Amenities =Rs. 10, 000/- iv) Incidental Expenses = Rs. 1 0, 000/- v) Future Medical Expenses-----=Rs. 2, 000/- vi) Pain and Suffering = Rs. 20, 000/- Total Rs.2, 86, 954/- (Rupees two lac eighty six thousand nine hundred fifty four only) Accordingly this issue is answered. Issue No I find that other than compensation, the claimant is not entitled to any other relief.

10 10 P a g e ORDER 22. In the result, the claim petition is allowed on contest. The claimant is awarded total compensation of Rs. 2, 86, 954/-( rupees two lacs eighty six thousand nine hundred fifty four) for the injuries sustained by him in the motor vehicle accident in question. The said amount of compensation shall carry an 9% per annum from date of filing claim petition i.e from till its realization. The United India Insurance Company Ltd arraigned as opposite party No.2 is asked to pay the aforesaid amount of compensation within 60 days from to-day, the 9 th September, 2015 along with interest as stated above. Send a copy of the Judgment to the opposite party No.2, the United India Insurance Company Ltd for information and necessary action. Given under my hand and seal of the Tribunal on this 9 th September, 2015 at Golaghat. Dictated & corrected by me. MEMBER, MACT:::::GOLAGHAT. MEMBER, MACT::: GOLAGHAT...

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