Calcutta High Court (Appellete Side)
Fatick Sk @ Abdul Matin vs The New India Assurance Co. Ltd. & Anr on 30 March, 2015
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Samapti Chatterjee
F.M.A. 1157 of 2013
Fatick Sk @ Abdul Matin
-versus-
The New India Assurance Co. Ltd. & Anr.
For Appellant : Ms. Sima Biswas.
For the Insurance : Mr. Saibalendu Bhowmick.
Company.
Heard On : 30.3.2015
Judgement On : 30.3.2015
Jyotirmay Bhattacharya, J.
On the prayer of Ms. Sima Ghosh, learned advocate, appearing for the appellant, leave is granted to her to remove the defect in the vakalatnama.
On the joint prayer of the learned counsel appearing for the parties we have heard the learned counsel of the parties on merit by dispensing with the requirement of filing of the paper books in this appeal.
This first miscellaneous appeal is directed against the judgment and/or award dated 30th May, 2012 passed by the Motor Accident Claim Tribunal (Additional District & Session Judge), 3rd Court at Suri, Birbhum, in M.A.C. No.69 of 2008 at the instance of the claimant/appellant.
The claimant/appellant was insured in a motor accident which occurred on 14th September, 2007. He received grievous injuries on his body. He had to be hospitalised for his treatment. Ultimately, a major operation was carried on his left hip and his other leg was plastered. He, thus, filed an application under section 163A of the Motor Vehicles Act claiming compensation to the tune of Rs.50,000/- which was inclusive of medical expenses. He, further, claimed a sum of Rs.14,000/- for his grievous injury.
The owner of the offending vehicle did not contest the claim petition. As such, the said proceeding was decided ex-parte against the owner of the offending vehicle.
Insurance company contested the said proceeding by filing written statement denying its liability to pay compensation to the claimants. The maintainability of the said proceeding was questioned. The involvement of the offending vehicle in the said accident was denied. The cause of disablement of the victim due to the alleged accident was also denied. It is, however, not denied that the offending vehicle being bus bearing no. WB-41A-6341 was insured under a policy of insurance issued by the insurance company on the day when such accident occurred. The parties have led evidence in support of their respective claims. Apart from the victim who deposed as PW-1 in the said proceeding, the Doctor who treated him was also examined. The evidence of the Doctor is very material in the facts of the present case as determination of the extent of the victim's disability and the nature of his disability can be ascertained from the evidence of the said Doctor. The Doctor stated in his evidence that disability of the victim was temporary in nature and the extent of his disability is 50%. The Doctor has also stated in his evidence that the victim lost his normal earning capacity as he received a major fracture for which steel rod had to be implanted on his leg.
The learned Trial Judge after considering the evidence of the parties about the nature of disablement of the victim and the extent of his disablement, ultimately came to the conclusion that the victim's disablement is neither permanent total disablement, nor permanent partial disablement. The learned Tribunal held that the disability certificate issued by the Doctor being exhibit 3 shows that the nature of the victim's disablement is temporary in nature. The learned Tribunal assessed the loss of the earning capacity of the victim at 20%. The learned Tribunal also believed the victim's evidence regarding his earning capacity of Rs. 3,000/- per month as he was a mason by profession.
Having regard to the age of the victim, recorded in his voter's identity card the learned Tribunal held that the victim was aged about 24 years at the time of the said accident. The learned Tribunal, thus, held that 17 will be the multiplier in the facts of the instant case. Accordingly, the learned Tribunal assessed the future loss of income of the victim at Rs.1,22,400/-. A sum of Rs.40,000/- was also allowed by the learned Tribunal on account of the medical expenses. For pain and suffering, a further sum of Rs.5,000/- was allowed. Thus, a sum of Rs.1,67,000/- was allowed in total, on account of compensation payable to the claimants under section 163A of the Motor Vehicles Act. The victim/claimant/appellant is not happy with the said award of the Tribunal and as such he has preferred this appeal.
It is contended by the learned advocate appearing for the appellant that having regard to the fact that the Doctor has certified the extent of disablement of the victim as 50%, the learned Tribunal while assessing the compensation payable to the claimant ought not to have calculated the loss of actual income of the victim by accepting his extent of disablement as 20%.
Let us now consider as to how far the assessment made by the learned Tribunal in the facts of the instant case can be supported within the scope and ambit of Section 163A of the Motor Vehicles Act.
Section 163A of the Motor Vehicles Act provides for payment of compensation both, in case of fatal and non-fatal accident, by following the structured formula under 2nd schedule. So far as fatal accidents are concerned, compensation payable to the heirs of the victim is assessed on the basis of the structured formula and with reference to the note appended thereto under note 1, 2 & 3. So far as the payment of compensation in non-fatal accidental claim is concerned, the compensation payable to the victim is required to be estimated with reference to the structured formula by applying the provisions contained in note 4, 5, & 6.
Let us now ascertain as to how much is payable to the claimant in the facts of the instant case as per the said structured formula under 2nd schedule.
The learned Tribunal believed the evidence of the victim regarding his earning capacity of Rs.3,000/- per month. This is neither a case of permanent total disablement, nor a case of permanent partial disablement. This is a case where a Doctor himself stated in his evidence that the disablement of the victim was temporary in nature. As such, the extent of his disability cannot be ascertained with reference to the schedule 1 under the Workmen's Compensation Act, 1923. In fact, in the schedule under the Workmen's Compensation Act, percentage of loss of earning capacity of the victim for the disablement which the victim has suffered in the particular case, is not mentioned therein.
As such, we cannot ascertain the extent of loss of earning capacity of the victim with reference to the schedule 1 of the Workmen's Compensation Act, 1923. The compensation in the instant case is, thus, required to be computed by following note 6, appended to the 2nd schedule under 163A of the said Act, which provides that in case of other injuries, only general damages is applicable. How general damages is required to be computed is mentioned in note 4 of the 2nd schedule under Section 163A of the said Act. It is provided therein that in case of grievous injuries, a sum of Rs.5,000/- will be awarded. It also provides that maximum compensation of Rs.15,000/- will be awarded on account of medical expenses. In addition thereto, mode of computation of compensation, in case of disablement of non-fatal accident, is provided in note 5 under the said 2nd schedule which provides that loss of income of the victim has to be assessed for the actual period of disablement, not exceeding 52 weeks.
Here is the case where we find that the victim claimed that he used to earn a sum of Rs. 3,000/- per month. This part of his evidence was believed by the learned Tribunal. As such, we do not want to disturb such finding of the learned Tribunal regarding the earning capacity of the victim.
We, thus, hold that the victim is also entitled to a further sum of Rs. 36,000/- being his loss of income for 52 weeks, i.e. for an year. Thus, as per our estimate, the victim is entitled to a sum of Rs. 36,000/- on account of his loss of income for 52 weeks and in addition thereto he is entitled to a sum of Rs. 5000/- on account of grievous injury which he received in the said accident and further in addition thereto a sum of Rs.15,000/- on account of his medical expenses. Thus, we find that a total sum of Rs.56,000/- is payable to him on account of compensation under section 163A of the Motor Vehicles Act.
However, in the present case we find that the learned Tribunal awarded compensation of Rs. 1,67,000/- in favour of the victim. We are informed by the learned counsel appearing for the parties that the said award has also been satisfied by the insurance company. The insurance company has not preferred any appeal challenging the said award. The insurance company has also not filed any cross objection in this appeal for challenging the said award.
Since the award has already been satisfied by the insurance company, we do not want to upset the said award, even though, we hold that a lesser amount of compensation was payable to him on account of such accident.
The appeal is, thus, disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J.) (Samapti Chatterjee, J.) ac.