Gauhati High Court
(A) Smt. Phulmati Devi vs The Managing Director Of A. S. T. C. And ... on 16 November, 2021
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/4
GAHC010005962010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./151/2010
ON THE DEATH OF AMAR CHOUHAN,
PERMANENT R/O VILL. JAMUA, P.O. DOMALIA, P.S. SALEMPUR, DIST.
DEWARIA, UTTAR PRADESH,
PRESENTLY RESIDING AT ZOO ROAD, GUWAHATI
1: (b) SRI RAJ KUMAR CHAUHAN
R/O VILL. JAMUA
P.O. DOMALIA
P.S. SALEMPUR
DIST. DEWARIA
UTTAR PRADESH
1: (a) SMT. PHULMATI DEVI
R/O VILL. JAMUA
P.O. DOMALIA
P.S. SALEMPUR
DIST. DEWARIA
UTTAR PRADES
VERSUS
THE MANAGING DIRECTOR OF A. S. T. C. and ANR
PALTAN BAZAR, GUWAHATI-8
2:KUMUD MISHRA
DRIVER OF THE VEHICLE NO. 20-0791 S/O LATE NITYANANDA MISHRA
R/O RUP NAGAR OF S.S. A.S.T.C. CITY SERVICE
P.S. PALTAN BAZAR
KAMRUP
ASSAM
Advocate for the Petitioner : MR.B DEY
Page No.# 2/4
Advocate for the Respondent : SC, A S T C
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 16.11.2021 Heard Mr. R. Dhar, learned counsel for the appellant. Also heard Mr. J. Roy, learned standing counsel for the respondent no.1, who also appears for respondent no.2.
2. The appellant has stated to have died on 11.11.2014 and he has been substituted by his son and wife by order dated 19.03.2018 passed in I.A. 2438/2015.
3. By filing this appeal under Section 173 of the Motor Vehicles Act, the appellant has prayed for enhancement of the award dated 23.09.2009 passed by the learned Member, MACT, Kamrup Guwahati in MAC Case No.2411/2007.
4. The facts and the nature of injury are not in dispute. On 03.05.2007, the petitioner was hit by the offending ASTC vehicle, which was being driven by the respondent no.2, as a result of which, the appellant sustained injury due to rash and negligent driving of the offending vehicle. Considering the nature and injury sustained and cost incurred for treatment, a lumpsum award of Rs.14,000/- (rupees fourteen thousand only) was passed by the learned Tribunal on account of medical treatment as well as pain and suffering together with interest of 6% p.a. from the date of filing of the claim petition. The learned counsel for the appellant submits that one of the grounds taken in the memo of Page No.# 3/4 appeal is to the effect that the appellant had undergone further treatment at Patna and was out of employment for about 20 months. It is claimed that the appellant was a Mason and was earning Rs.7,000/- (rupees seven thousand only) p.m. and accordingly, it is submitted that the learned Tribunal had failed to quantify the loss of earning and accordingly, he prays for enhancement of the award. It is submitted that the appellant had lost documents relating to treatment undergone outside Assam, i.e. Uttar Pradesh and Bihar.
5. The learned standing counsel for the respondent no.1, who also appears for respondent no.2 has submitted that there is no material on record to justify enhancement of the award.
6. In this regard, it is seen that in the claim petition, there is no statement regarding further treatment at Uttar Pradesh and Bihar and there is also no claim made on account of the alleged loss of income for 20 months. It is further seen that in the evidence on affidavit filed by the appellant, which was sworn on 02.10.2008, no statement has been made to the extent of the period where the petitioner was out of work. It is also seen that the talking medical expenses incurred by the appellant was to the extent of Rs.6,684/- (Rupees six thousand six hundred eighty four only), considering which the learned Tribunal had awarded compensation of Rs.14,000/- (Rupees fourteen thousand only) to the appellant. Accordingly, based on the evidence to the effect that the appellant as CW-1 had claimed that he had undergone treatment for about 20 days, which remains uncontroverted. Accordingly, the Court is inclined to accept the claim to the effect that the income of the appellant was Rs.7,000/- (Rupees seven thousand only) as a Mason and considering the period of treatment Page No.# 4/4 undergone i.e. for 20 days, the Court is inclined to enhance the award by Rs.7,000/- (Rupees seven thousand only) on account of loss of income of the appellant for a period of 1 (one) month only. Accordingly, the award stands enhanced by Rs.7,000/- (Rupees seven thousand only).
7. The respondents shall satisfy the award within a period of 2 (two) months from the date of receipt of copy of this appellate order. In the event the enhanced award remains unsatisfied, it would be open to the substituted appellants to enforce the award in accordance with law.
8. The LCR is returned.
9. Appeal is allowed to the extent as indicated above.
10. There shall be no order as to cost.
JUDGE Comparing Assistant