Calcutta High Court (Appellete Side)
Jitu Pramanik vs National Insurance Company Limited on 1 November, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
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14
01.11.2019
Ct. No. 16
ssd
FMA 1337 of 2019
(FMAT 895 of 2019)
with
CAN 9933 of 2019
Jitu Pramanik
Vs.
National Insurance Company Limited
and another.
Mr. Ashique Mondal
...for the appellant.
Mr. Sanjoy Paul
...for the insurance company.
In view of the good grounds shown, the delay of about
two days in preferring the appeal is condoned and the appeal
is taken on record.
The appeal arises out of an award of May 3, 2019
pertaining to an accident in 2015 that resulted in the right
leg of the appellant being amputated and the appellant being
left, technically, 85 per cent disabled. Several grounds have
been urged by the appellant including that the tribunal erred
in making deduction on account of personal expenses as in a
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death case; that the tribunal disregarded a substantial part of
the medical expenditure incurred by the appellant merely on
the ground that the insurance company objected to the bills
without indicating any reasons; and the tribunal has awarded
a paltry amount of Rs.50,000/- on account pain and
suffering without providing for any future medical expenses
or attendant charges or the like.
The impugned award suffers from serious anomalies
and the matter requires a fresh consideration.
The appellant was about 31 years old at the time of the
accident. The tribunal accepted that the appellant, as a
professional chauffeur, earned Rs.6,000/- a month. However,
the tribunal held that one-third of the notional income had to
be deducted on account of personal expenses, whereas such
a practice is followed in death cases and not in injury cases.
Since the income of the appellant was Rs.6,000/- per month
and 40 per cent of such amount had to be taken into account
towards future prospects, the notional monthly income of the
appellant had to be taken as Rs.8,400/-. Upon annualising
such amount and applying the appropriate multiplier of 16,
the compensation on such score works out to Rs.16,12,800/-
.
3 On account of medical expenses, the appellant claimed to have expended a sum of Rs.2,40,897/-. In course of the examination-in-chief, the appellant tendered the relevant documents which appear from pages 67 to 191 of the informal paper-book filed by the appellant. It appears that a general objection was taken on behalf of the insurance company to all the documents sought to be exhibited on behalf of the appellant. It is submitted on behalf of the insurance company that it was incumbent on the appellant to have the relevant documents proved by the officials from the relevant medical institutions.
It does not appear that the objection taken by the insurance company as to the admissibility of the documents pertaining to the medical expenses incurred by the appellant was on any firm ground. On the contrary, the objection appears to have been rather casual and merely on the ground that personnel from the relevant medical institutions had not been summoned as witnesses.
It must be appreciated that it is difficult to obtain persons from government hospitals or even private nursing homes to come and testify before a tribunal or court. When dealing with motor accident claims, the tribunal has to take a rational and pragmatic approach and merely because a 4 technical objection is raised by the insurance company or the owner of the vehicle, the tribunal should not disregard documents that may otherwise satisfy the tribunal as to their veracity and contents. The tribunal has to appreciate that it is difficult to have witnesses from medical institutions attend court. In case of government hospitals, where several accident victims are taken on a daily basis, it may not be possible for such government hospitals to release employees so that they may appear as witnesses before the tribunal in claim cases.
In such a scenario, it is always open to the insurance company to point out any substantial defect in any document, whereupon the tribunal would require the claimant to prove it in the conventional, strict manner. If the factum of the accident appears to be admitted or undisputed and the admission of the victim to any medical facility is also accepted, the bills of such medical institution may be not questioned merely on the ground that no official from such institution has come to prove the documents, though the contents of the documents may be questioned by the insurance company or the owner of the offending vehicle.
Oftentimes, bills are also relied upon demonstrating the purchase of the medicines as advised by doctors for the 5 treatment of the victim. If medicines are obtained from drug stores, it is difficult to accept that such drug stores would depute personnel to attend the tribunal and prove the bills of such drug stores.
A fair stand has been taken by the respondent- insurance company in this case. Upon perusing the documents in support of the claimant's assertion that a sum of Rs.2,40,897/- was expended on account of medical expenses, the insurance company does not raise any objection to the contents of the documents exhibited before the tribunal. In such view of the matter, the appellant is found entitled to the sum of Rs.2,40,897/- on account of medical expenses, which is in modification of the award of Rs.1,00,000/- made on such count by the tribunal in the impugned award.
Further, it is now the fairly accepted position that in a case of disability to such extent as in the present case, a minimum amount of Rs.1,00,000/- is awarded on account of pain and suffering. The extent of the disability is such that the appellant would require future medical attention and the help of an attendant. The tribunal failed to take into account the loss of amenities, the likely loss of expectation of life and the transportation and attendant charges that the appellant 6 would incur as a consequence of the appellant's right leg being amputated. Accordingly, the amount of Rs.50,000/- collectively is enhanced to Rs. 3,00,000/- on account of pain and suffering, loss of amenities, loss of expectation of life and the like.
Thus, the appellant is found entitled to sums of Rs.16,12,800/-, Rs.2,40,897/- and Rs.3,00,000/- on the several heads as indicated above, taking the gross compensation to Rs.21,53,697/- together with interest thereon at the rate of 8 per cent per annum from the date of lodging the claim till the receipt thereof.
The appellant acknowledges the receipt of a sum of Rs.16,61,838/- on July 30, 2019.
The insurance company will calculate the balance amount due to the appellant, including on account of interest, in terms of this order and make over the sum directly to the bank account of the appellant, correct as on November 30, 2019 by December 15, 2019. For such purpose Advocate for the appellant will forward the bank account details of the appellant to Advocate for the insurance company within a fortnight from date.
FMA 1337 of 2019 along with CAN 9933 of 2019 are disposed of without any order as to costs.
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Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) (Kausik Chanda, J.)