Patna High Court - Orders
The Branch Manager New India Assurrance ... vs Sanjay Kumar Singh & Ors on 24 July, 2013
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.36 of 2012
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The Branch Manager, New India Assurrance Company Limited, Ballord
Estate, Mumbai-400001 and another represented through the Chief Regional
Manager and the constituted attorney, Regional Office, the New India
Assurance Company Ltd., 6th Floor, B.S.F.C. Building, Frazer Road, Patna-1.
....Opposite Party nos.4 & 5 .... Appellant/s
Versus
1. Sanjay Kumar Singh, son of Shri Gopal Singh, resident of Mohalla-
Pokharia, Chitragupta Nagar, Ward No.20 within the Municipal Area-
Begusarai, At & P.O.- Begusarai, District- Begusarai.
.....Claimant .....Respondent 1st Set.
2. M/s Larsan and Tubro Company L & T House, Belloard Estate, Post-
Box No.278, Mumbai-400 001, local address- M/S L & T Company
Refinery, P.S.- Barauni Refinery O.P., Subdivision and District-
Begusarai. ....(owner of Jeep no. M.H.-01R-4992....O.P. No.1)
3. Shri Amit Kumar Ghosal, son of Radha Govind Ghoshal, Sath-55, Jasin
Das Road, Kolkata-25, P.S.- Lake, District- Kolkata (West Bengal), at
present residence at Barauni Refinery Township, Quarter no.01, P.O.-
Refinery, P.S. & Town- Begusarai, District- Begusarai. (Authorised
signatory of the above company)....O.P. No.2.
4. Barun Singh, son of Shri Jwala Prasad Singh, of Village- Numar,
District- Jamui (Driver of Jeep No.MH-01R-4992).... O.P. NO.3.
.... .... Respondents 2nd Set.
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Appearance :
For the Appellant/s : Mr. Raj Kumar Singh Vikram
For the Respondent/s : Mr. Jitendra Prasad Singh
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
7 24-07-2013Re: I.A. No.4554 of 2012:
Heard the parties.
This interlocutory application has been filed for condonation of the delay in filing the appeal. It is submitted by learned counsel for the appellant that the delay of five months and one day has occasioned in obtaining departmental approval in the light of the legal advice tendered for filing the appeal. It is submitted that there is no deliberate laches on the part of the Patna High Court MA No.36 of 2012 (7) dt.24-07-2013 2 appellant in seeking their remedy.
I have heard learned counsel for the parties on the prayer made in this application and being satisfied by the reasons assigned, the delay in filing this appeal is condoned.
I.A. No.4554 of 2012 is allowed.
Re: M.A. No.36 of 2012:
This appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') is directed against the judgment and award dated 29.8.2011 passed by the Additional District Judge-1-cum- Motor Vehicles Accident Claim Tribunal, Begusarai in Claim Case No.85 of 2001, whereby the learned tribunal has assessed compensation of Rs.7,08,000/- payable to the claimant-respondent no.1 together with interest @ 9% from the date of filing of the claim after adjustment of the amount of Rs.25,000/- paid to him under section 140 of the Act.
The factual aspect of accident is not in dispute rather it is only the computation of compensation made by the tribunal on the basis of evidence on record that is put to question before this Court.
I have heard Mr. Raj Kumar Singh Vikram, learned counsel appearing for the appellant and Mr. Jitendra Prasad Patna High Court MA No.36 of 2012 (7) dt.24-07-2013 3 Singh, learned counsel appearing for the claimant-respondent no.1.
As the contesting parties to the lis are the parties in attendance before this Court, this Court does not deem it necessary to issue notice to the other parties. The only issue that has been raised by Mr. Vikram, learned counsel appearing for the insurance company is that despite the medical certificate certifying the claimant to be disabled temporarily to the extent of 50%, the tribunal has committed serious infirmity in computing the amount by treating the claimant to be permanently disabled. Learned counsel without questioning the other component forming the part of compensation submits that it is only the computation of the compensation payable to the claimant by treating him to be permanently disabled that the issue has been put up before this Court in this appeal. Mr. Vikram, learned counsel appearing for the appellant has also questioned the certification by the proprietor regarding the salary drawn by the claimant on grounds that it does not bear any date nor has any identification bearing any letter number and thus does not satisfy the test of genuineness. He further submits that there is nothing on record nor any evidence was led by the claimant to demonstrate before the tribunal as to whether Patna High Court MA No.36 of 2012 (7) dt.24-07-2013 4 the injury has disabled him from discharge of official duties thus affecting his future earning prospects. He thus submits that in absence of the aforesaid relevant aspects, the presumption drawn by the tribunal treating the claimant to be permanently disabled is contrary to the evidence on record.
Perusal of the judgment and award impugned manifests that the tribunal has accepted the salary statement as certified by one Meera Engineering Works claiming to be the employer of the claimant. Since the claimant was aged 30 years hence applying the multiplier of 18 in terms of the Second Schedule to the Act a compensation was arrived at Rs.12,96,000/- and taking into consideration and treating the claimant to be 50% permanently disabled the tribunal awarded 50% compensation, i.e. Rs.6,48,000/- to be the amount payable to him besides the medical expenses of Rs.60,000/-.
The evidence on record could not be controverted by Mr. Singh, learned counsel appearing for the claimant nor there is anything on record to demonstrate whether the injury suffered by the claimant has affected his future earning prospect. The very fact that the tribunal has proceeded on an erroneous presumption that the claimant has become permanently disabled to the extent of 50%, has rendered the computation of the Patna High Court MA No.36 of 2012 (7) dt.24-07-2013 5 compensation illegal for simple reason that the certification of disablement is 'temporary' to the extent of 50% and not 'permanent' in nature. Mr. Vikram in support of his submission has relied upon a judgment of the Supreme Court reported in 2011 (2) PLJR 1(SC) (Raj Kumar vs. Ajay Kumar) to submit that the protection extended to persons suffering injury leading to temporary or permanent disablement has been fully discussed in the judgment. In the said case, the tribunal had proceeded on the basis of a permanent disability to the injured-claimant to the extent of 45% and it was held that while computing compensation payable to such claimant it is desirable for the tribunal to also consider the extent of injury and whether it has affected the future earning prospects of the injured. In so far as the case in hand is concerned, it is manifest that simply by treating the claimant to be permanently disabled to the extent of 50% that the computation has been made without assessment as to the degree of disability and the extent thereof rendering him incompetent for future earnings. These are the relevant aspects which have not been considered by the tribunal despite the evidence available on record as well as the absence of evidence relatable to the extent of injury affecting the future earning prospect of the claimant.Patna High Court MA No.36 of 2012 (7) dt.24-07-2013 6
For the reasons aforesaid this appeal is allowed, the judgment and award impugned is set aside and the matter is remitted to the tribunal for consideration and disposal afresh in accordance with law and after hearing the contesting parties. The tribunal would also afford opportunity to the contesting parties to lead additional evidence in accordance with law, if they so desire.
Let the statutory amount deposited by the appellant- insurance company be transmitted to the tribunal for its disbursement in accordance with law.
Let the lower court records be returned to the tribunal concerned forthwith.
As the claim case dates back to the year 2001, the tribunal should endeavour to dispose of the claim case expeditiously and preferably within a period of six months from the date of receipt of the records. The parties are directed to ensure their attendance on the date fixed for hearing of the claim case.
(Jyoti Saran, J) SKPathak/-