Tripura High Court
Sri Balaram Chakraborty vs Sri Goutam Chandra Sukladas on 28 August, 2018
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
MAC App No. 68 of 2015
Sri Balaram Chakraborty,
S/O Late Surendra Chakraborty,
of Jirania, Bidyasagar Colony,
P.S. Jirania, District- West Tripura
-----Appellant(s)
Versus
1. Sri Goutam Chandra Sukladas,
S/O Late Biswamer Sukladas,
of Milanchakra, Adarsha Palli,
ward No.28, P.S. West Agartala,
District West Tripura
(Owner of the Mini Bus bearing No. TR.01.1393)
2. The New India Assurance Company Limimited,
represented by its Branch Manager,
having the Branch Office at
Mantribari Road, Agartala,
P.S. West Agartala, District- West Tripura
(Insurer of the Mini bus bearing No. TR.01.1393)
---- Respondent(s)
For Appellant(s) :Mr. SB Debnath, Adv.
For Respondent(s) :Mr. . S Adhikari, Adv.
Mr. A. Das, Adv.
Whether fit for reporting :NO.
HON'BLE MR. JUSTICE S. TALAPATRA
Judgment & Order(Oral)
28/08/2018
Heard Mr. SB Debnath, learned counsel appearing for the appellant as well as Mr. S Adhikari, learned counsel appearing for the respondent No.1 and Mr. A Das, learned Page 2 of 7 counsel appearing for the respondent No.2, New India Assurance Co. Ltd.
2. This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988 from the judgment and award dated 07.08.2015 delivered in TS(MAC)178/2013 by the Motor Accident Claims Tribunal, West Tripura, Agartala No.1.
3. One of the distinguishing feature in this appeal is that the fact of the accident and the permanent disability caused by its impact to the extent of 80% leading to 100% occupational disability and the vehicles valid insurance coverage by the respondent No.2 are not in dispute by any of the parties.
4. The appellant on 04.12.2012 while travelling by the vehicle, Mini Bus bearing registration No. TR01 1393 towards Agartala along the Assam Agartala Raod, the said bus parked on the road side at Mohanpur had dashed a truck. From the said accident, the appellant sustained fracture injury on his right hand and he was immediately taken to GB Hospital, in the said hospital he was admitted for the period from 04.12.2012 to 02.01.2013 and he was operated upon for re-fixing the fractured bone.
5. Finally, he was assessed by the District Disability Board and this found him the said assessment is reflected in the 80% disabled. The certificate issued by the Chairman of the board (Exhibit-7). The Doctor who examined the appellant prior to issuance of the certificate was examined in the inquiry as PW3. He has opined that "the disability being 80% (permanent), Page 3 of 7 driving of vehicle by the person is not possible because of the stiffness of wrist and elbow joints". On the basis of that, the tribunal has considered him 100% disabled occupationally. The tribunal assessed the compensation at Rs.11,40,095/- with interest @ 9% per annum from the date of filing of the claim application i.e. 03.05.2013.
6. However, since the appellant was not satisfied with the compensation, he has filed this appeal and raised the grounds of objection, viz - (i) assessment of income has been made against the evidence and it ought to have been Rs.14,000/- per month as the employer PW2 has deposed in the inquiry and pointed out that the appellant is a Tripper driver for his vehicle bearing No. TR01 Q 1561 on payment of Rs.14,000/- (fourteen thousand only) per month; and (ii) the medical expenses and the conventional damage for pain and suffering are shockingly inadequate and those require enhancement for making the award fair and reasonable.
7. Mr. Debnath, learned counsel appearing for the appellant has urged that the monthly income should be treated at Rs.14,000/- or at least Rs.13,000/- in terms of the notification issued by this High Court under No.F.44(11)-HC/2016-497 dated 09.01.2017. Mr. Debnath has further urged that the fee for the attendant ought to be raised to Rs.500 per day, meaning for two attendants for the whole day - Rs.1,000/- per day during the period of hospitalization by interfering with the finding of the tribunal in this regard.
Page 4 of 7
8. According to Mr. Debnath, learned counsel, cost of medicine as given is also on the lower side. It can reasonably be more than what has been given. However, Mr. Debnath has fairly admitted that for supporting the expenses on medicine, the vouchers on the claimed amount could not be produced. In addition, he has urged this Court that the cost of transportation as well as the award as made for pain and suffering be enhanced.
9. On the other side, Mr. Das, learned counsel appearing for the respondent No.2 has submitted that deposition of the PW3 is abrupt and not supported by any medical evidence. According to him, mere stiffness in two points of the body cannot make someone 100% occupationally disabled. Even if, it is accepted that he cannot drive the vehicle but the appellant can pursue some other professions with this amount of disablement. Even Mr. Das has questioned the procedure for determining the disablement as in this regard PW3, Dr. Dipti Bikash Roy has not stated anything. Mr. Das, learned counsel has pointed out that even PW3 has in the cross-examination clearly stated that other than driving he can perform some other works to a limited extent where movement of the wrist and elbow joint is not necessary.
10. Mr. Das, learned counsel when confronted as to whether he can raise that ground of objection in as much as the respondent has not filed any appeal or cross objection against the finding as returned by the Tribunal, he has fairly admitted that a better procedure would have been to file such appeal or Page 5 of 7 cross-objection to question the finding of the tribunal but since the respondent No.2 has not done so this objection is being raised based on the evidentiary materials already available on record.
11. Mr. Adhikari, learned counsel for the respondent No.1 has adopted the submissions of Mr. Das, learned counsel for the respondent No.2.
12. Having due regard to the records as produced before this Court and the submission made by the learned counsel for the parties, this Court has drawn certain inferences on the threshold. It has surfaced that the appellant had a driving licence for heavy motor vehicles, even his employer who came to the Court has vouched that statement by way of corroboration. But at the same time, PW3 has stated that even though the appellant is 80% disabled, he is not fit for driving the vehicle for the stiffness of the wrist and elbow joint. He has further stated that he is disabled for driving the vehicle. However, in the cross examination, he has stated as pointed out by Mr. Das, that the appellant can pursue some other occupations where the movement of wrist and elbow joint is not required.
13. This is one aspect which really requires serious attention from this Court inasmuch as the expert (Dr. Dipti Bikash Roy) has stated in the inquiry that the appellant can purse some other professions on the other hand, this Court does not find in the records any other evidentiary material placed by the respondents to rebut the claim of the appellant about his income Page 6 of 7 at Rs.14,000/- per month. This court is of the view that for the said disablement the appellant cannot be treated 100% occupationally disabled. Even if it is accepted that he cannot drive the vehicle in the future he can pursue some other alternative occupations, but this cannot be denied that for the injury suffered in the accident, the appellant has substantially lost his earning capability. We are to make a balance between the loss of the earning capability and the probability of earning from an alternative occupation.
14. For the purpose, this Court would treat Rs.14,000/- as the monthly income for driving the heavy motor vehicle. But since the wholesome proposition is not being accepted by the Court that for the said accident the appellant has become 100% disabled, from that income of Rs.14,000/-, a sum of Rs.4,000/- would be deducted as the supplementary income that the appellant can derive by pursuing the alternative occupation. Thus, the income should be treated at Rs.10,000/- per month. Thus, the compensation is required to be re-determined.
15. The compensation would be Rs.18,00,000/-. With this another amount of Rs.30,000/- for pain and suffering, Rs.3,000/- for transportation cost, Rs.12,000/- towards cost of attendants and Rs.2,495 towards purchase of medicine are to be paid to the appellant in the form of compensation. Thus, the total compensation would be Rs.18,47,497/-. The said amount shall carry interest @ 7% per annum from the date of filing of the claim petition, i.e. 03.05.2013 till the payment is made. Page 7 of 7
16. 50% of the entire awarded sum shall be kept in a term deposit for a period of 10 years and remaining 50% of the said award shall be disbursed to the appellant on deposit by the respondent No.2, within a period of 30 days from today in the tribunal. The amount, if any, deposited by now, shall be deducted at the time of making depostis.
17. In view of the modification in the award as made above, this appeal stands partly allowed. There shall be no order as to costs.
JUDGE satabdi