BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL: CACHAR: SILCHAR: ASSAM

Transcription

1 1 BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL: CACHAR: SILCHAR: ASSAM Present: Shri B. Debnath, B.Com, LLM, AJS. Member, Motor Accident Claims Tribunal, Silchar. JUDGMENT IN MAC CASE NO 1383/2009 Sanjib Kumar Deb... CLAIMANT V E R S U S 1. Ashique Uddin Barbhuiya :Owner of the Truck 2. Salim Uddin Barbhuiya :Driver of the Truck 3. National Insurance Co Ltd :Insurer of the Truck 4. M/s JagannathTravels & Tour Ltd :Owner of the Sumo 5. Samsul Haque Talukdar :Driver of the Sumo 6. Oriental Insurance Co Ltd :Insurer of Sumo... OPPOSITE PARTIES APEAREANCE: Shri Rajat Ghosh, Ld. Advocate :For the claimant Shri S. Dutta, Ld. Advocate :For the OP3 & 6 Institution of the case : Date of argument : Date of Judgment : J U D G M E N T 1. This claim case has been brought by the claimant Sri Sanjib Kumar Deb for award of compensation on account of amputation of his right hand due to motor accident. 2. He brought the following facts:- 3. On the fateful date on he being a bride groom party was travelling by Tata Sumo vehicle bearing Registration No. ML-05/E from Dalu toward Kalain. When the vehicle reached at Bororampur turning near Bijoyapur GP office under Borkhola PS the DI Truck bearing Registration No. AS-11/C-6840 coming from opposite direction dashed the aforesaid Tata Sumo in its right middle side. In

2 2 consequence the claimant who was sitting on the middle row in extreme right side sustained crash injury on his right hand above the elbow and on the spot the right hand above the elbow separated. 4. He was immediately brought to Silchar Medial College and Hospital (SMCH) and admitted as an indoor patient. During treatment 2/3 operations were done and ultimately he obtained disablement certificate. 5. However his father lodged a formal FIR on before the OC, Borkhola PS. Accordingly OC, Borkhola PS registered Borkhola PS case No. 24/09 under Section 279/338 IPC. 6. The Police investigated the incident and prepared Accident Information Report and after investigation submitted Charge Sheet against the driver of the DI Truck for rash and negligent driving and causing crash injury to the claimant. 7. The instant case brought against the owner and driver of both the DI Truck and Tata Sumo. The Insurer of both the Truck and Tata Sumo are arrayed as OP3 and OP6 respectively. The National Insurance Company is the insurer in respect of the DI Truck and Oriental Insurance Company is the insurer in respect of Tata Sumo. Both the Insurance Companies submitted WS but owner and driver of both the vehicles remained absent without any WS. 8. However during hearing the claimant examined himself as PW1 and exhibited 12 documents including FIR, Charge Sheet, Disablement certificate and cash memos for medical expenses. The claimant also examined one Suman Deb as eye witness. The Medical Officer, Dr. Vikash Agarwala is PW3. Both the Insurance Company crossexamined the PW1, 2 & 3 but did not examine any defence witness. 9. Heard argument of both side s counsels and perused the evidence on record. 10. The claimant deposed that the DI Truck dashed the right middle of the Tata Sumo and due to that the right side glasses of the Tata Sumo were broken and his right hand crashed. The crash injury of his right hand has been supported by the PW2. The PW2 further deposed that he was sitting in the Tata Sumo at the relevant time of accident beside

3 3 the claimant and due to crash injury the claimant became senseless because the right hand has been separated on the spot. 11. The Accident Information Report vide Ext5, the FIR vide Ext6 as well as Charge Sheet vide Ext7 supported the said facts. The Medicolegal injury report vide Ext2 also described the injury of the claimant as traumatic amputation above elbow (right) with segmental fracture humerus right. Not only that, Ext3 permanent disability certificate reflected the said amputation. Moreover the PW3 the Medical Officer deposed that as per medical papers the claimant is physically disabled to the extent of 89% in respect of right hand and unable to do any work relating to right hand. 12. However after perusal of cross-examination of all the PWs it is opined that the fact of separation of the hand from body on the spot due to motor accident is believable. But question is as whether the accident was occurred due to composite negligence of both the driver or it was occurred due to rash and negligent driving of the driver of the DI Truck. In this aspect both the claimant and PW2 deposed that the Tata Sumo was proceeding with normal manner but the DI Truck was coming from opposite direction in a very rash and negligent manner. For which as per them the accident was occurred due to rash and negligent driving of the DI Truck. 13. The police investigated the case. During investigation both the vehicles seized vide Ext8 Seizure Lists. The MVI also inspected both the vehicles and submitted his report vide Ext9. As per the Ext9 MVI report only scratch mark mentioned at the right hand side but Windshield glass, rear glass and all door glasses of Tata Sumo were found to be broken. The aforesaid extent of damage of the vehicle also indicated that the DI Truck dashed the body of the Tata Sumo with heavy impact. Moreover, the Investigation Officer in Charge Sheet stated that he found material against the driver of the DI Truck for rash and negligent driving. Thus I believed the fact that the accident was occurred due to negligence of the driver of the DI Truck. 14. So the owner of the DI Truck is vicariously liable to pay compensation. As the DI Truck was under coverage of insurance at the relevant time of accident so the insurer i.e. the National Insurance Company Limited is liable to indemnify the owner of the DI Truck.

4 4 15. However to assess the compensation on permanent disablement this Tribunal is to determine the loss of earning of the claimant as well as amount of expenditure incurred during treatment. 16. As per the claimant he was shopkeeper of grocery shop and from his shop he used to earn Rs per month. He exhibited income certificate vide Ext11. To establish the occupation exhibited Trade licence of grocery shop vide Ext10. The Ext10 is a Xerox copy. That is why the learned Advocate of the Insurance Company raised objection. The claimant did not explain as why the original of Ext10 was not produced. Nevertheless as per Ext10 the claimant got licence of grocery shop for the period from to but the said licence appeared to be issued on i.e. after the occurrence of accident. The Certificate has been issued in the name of the deceased person. Hence, I do not rely on that document. Moreover Ext11 does not reflect as which year income was Rs.1,20,000. Moreover what data or factor were taken into consideration to assess annual income have not been reflected. 17. As such both the occupation and income as stated by the claimant are not believable. Therefore, in that situation for the sake of assessment of compensation I am taking notional income of the claimant as Rs.3000 per month. 18. So annual notional income is Rs.3000 x 12 = Rs I have taken 89% of the said income as loss of earning because the deposition of the claimant regarding 100% loss of earning is not convincing. 19. The Apex Court has dealt with this subject at length in Raj Kumar vs Ajay Kumar, (2011) 1 SCC 343. The relevant discussion reads thus:- 9.The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When the disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total

5 5 thereof expressed in term of the permanent disability with reference to the whole body, cannot obviously exceed 100%. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of percentage of the income, it has to be qualified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (see for example, the decision of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd (10) SCALE 298 and Yadava Kumar v. D.M. National Insurance Co.Ltd.-2010(8) SCALE 567). 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of permanent disability and what could not do as a result of the permanent disability (this is also relevant foe awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. 20. Thus I find Rs /- as annual loss of earning. The said amount is to be multiplied by multiplier number. The multiplier number is to be selected from the table given by the Supreme Court in Sarla Verma and others vs Delhi Road Transport Corporation and another, 2009 (2) TAC 677 (SC) on the basis of the age of the claimant. 21. His age as per the claim petition was 38 at the relevant time of accident but no age proof document is submitted. All the medical

6 6 papers also reflected his age as 38 years. Thus I have taken the age 38 years. So multiplier is 15. Accordingly amount of compensation on permanent disablement is Rs x 15 = Rs / In addition the claimant is entitled reimbursement of medical expenditure on the basis of actual cash memos and damages for pain and sufferings, loss of amenities etc in view of decision of Supreme Court in Rajkumar Vs Ajay Kumar, (2012) 8 SCC 604 wherein the Supreme Court held as below:- 6.The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages(special Damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditures. (ii) Loss of earnings ( and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment (b) Loss of future earning on account of permanent disablement (iii) Future medical expenses, non-pecuniary damages (general damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries (v) Loss of amenities (and/or loss of prospect of marriage). (vi) Loss of expectation of life (shortening of normal longevity) In routine personal injury cases, compensation would be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corresponding the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings

7 7 on account of permanent disablement, future medical expenses, loss of amenities (and/or loss of prospect of marriage) and loss of expectation of life. 7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as they involve reimbursement of actual and are easily ascertainable from the evidence. Award under the head of future medical expensesitem (iii) depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages- items (iv), (v) and (vi) involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this court and High courts contain necessary guidelines for award under these heads, if necessary The Supreme Court in Laxman alias Laxman Mourya vs Divisional Manager, Oriental Insurance Company Limited (2011) 10 SCC 756 held that while determining pecuniary and nonpecuniary heads some guesswork is permissible. 24. In the instant case the claimant deposed that he spent Rs. 2,00,000/- but exhibited cash memos vide Ext4 series. I have calculated the amount mentioned in the cash memos and found Rs.18,346/-. But nothing deposed regarding amount of compensation non pecuniary damages. Therefore the non pecuniary damages on the head of pain and sufferings and loss of amenity is calculated by applying guesswork as Rs.100,000/- and Rs respectively but the future prospect is not added because the occupation is not believed. It is further to be noted that as per oral evidence of the claimant he was in SMCH as indoor patient for treatment and 2/3 operations were done. But no detail period of hospitalization or detail expenditure available in the record to assess the expenditure for medical attendant. That is why a lumpsum amount of Rs is considered to be just and proper amount on the head of expenditure on medical attendant on the basis of Ext1 because he was hospitalized from to

8 8 25. Thus total compensation of Rs = Rs /- (Rupees six lakhs forty eight thousand nine hundred forty six) only is awarded. 26. As the driver of the DI Truck was in fault the National Insurance Company Limited being the insurer is liable to indemnify the aforesaid awarded compensation. Therefore the National Insurance Company Limited is directed to deposit the awarded compensation of Rs /- (Rupees six lakhs forty eight thousand nine hundred forty six) only within 30 days from today with interest thereon at the rate of 9% per annum with effect from the date of filing of the claim application till realization of the full. 27. With the above the case is disposed of on contest. Supply free certified copy of judgment to the parties immediately. Given under my hand and Seal of the court on this the 28 th day of January, Dictated and corrected by me: (Shri B. Debnath) Member, Motor Accident Claims Tribunal Silchar:: Assam (Shri B. Debnath) Member, Motor Accident Claims Tribunal Silchar::Assam Transcribed and typed by me: (Dhruba Jyoti Das) Stenographer Motor Accident Claims Tribunal Silchar::Assam