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GAHC010283642019
2024:GAU-AS:10000
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./674/2019
ABUL HUSSAIN
S/O- LATE KASHEM ALI, R/O- VILL. AND P.O. GOBINDPUR, P.S. AND DIST.-
GOALPARA, ASSAM, PIN- 783101.
VERSUS
THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD. AND 2
ORS.
GOALPARA BRANCH, P.O. AND DIST.- GOALPARA- 783101, ASSAM.
2:GOLBHANU BEGUM
W/O- ABUL HUSSAIN
R/O- VILL. AND P.O. GOBINDPUR- 783101
P.S. AND DIST.- GOALPARA
ASSAM
3:HEBZUR RAHMAN
S/O- SONTESH ALI
R/O- VILL. AND P.O. GOBINDPUR- 783101
P.S. AND DIST.- GOALPARA
ASSA
Advocate for the appellant : Mr. A.R. Agarwal
Advocate for the respondents : Mr. A.J. Saikia
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BEFORE
HON’BLE MRS. JUSTICE MARLI VANKUNG
JUDGMENT AND ORDER (CAV)
Date of hearing : 10.09.2024.
Date of judgment : 30.09.2024
Heard Mr. A.R. Agarwal, learned counsel for the appellant along with Mr.
A.J. Saikia, learned counsel for respondent No. 1/Insurance Company.
2. This is an appeal against the Judgment and award dated passed by the
learned Member, Motor Accident Claim Tribunal (MACT), in MAC Case No.
373/16 dated _The appellant is the claimant in MAC Case No. 373/16, who had
filed the claim application before the learned Member, Motor Accident Claims
Tribunal, Goalpara claiming compensation of Rs. 10,00,000 (Rupess ten lakhs)
only for injuries sustained by him due to a motor vehicular accident that
occurred on 06/10/2016.
4. The claimant’s case, in brief, is that on 06.10.2016 at about 10:00 AM,
while the claimant/appellant Abdul Hussain was going on foot towards
Gobindapur Bazar, on reaching near Gobindapur LP School, he was knocked
down by a truck having registration No. AS-18-C-6405, which was driven by its
driver, in a rash and negligent manner, as a result of which the
appellant/claimant sustained grievous injuries. He was taken to Solace hospital,
but was later shifted to GMCH, Guwahati as an indoor patient till 27.10.2016.
The case was registered under the Goalpara PS vide Goalpara PS Case No.
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505/16 under Section 279/338 IPC and the driver of the offending vehicle was
charge sheeted accordingly. The claimant/appellant had filed the claim
application claiming for compensation of Rs. 10,00,000/- for the injuries
sustained by him in the accident. The opposite party No. 1, United India
Insurance Co. in their Written Statement denied that the alleged accident
occurred due to rash and negligent driving by the driver of the offending vehicle
having Registration No. AS-18-C-6405 and also denied all the averments made
in the claim petition. The owner of the vehicle/opposite party No. 2 stated that
at the time of the accident, the vehicle was duly insured with the opposite party
No. 1 having a valid policy No. 1306043115P112226680. The opposite party No.
3, the driver of the offending vehicle in his written statement, claimed that the
accident did not occurred due to his rash and negligent driving and that at the
time of the driving, the said vehicle was having a valid driving license No. AS-
1820150015031, valid upto 07.03.2018.
From the pleadings of both the parties, the learned Tribunal framed the
following issues:-
(i) Whether the claimant Abdul Hussain sustained injuries in the alleged
motor accident dated 06.10.2016 involving the vehicle bearing registration No.
AS-18-C-6405 (Truck) and whether the accident had taken place due to rash
and negligent driving of the aforesaid vehicle.
(ii) Whether the claimant is entitled to compensation? And if yes to what
extend and by whom amount the opposite parties, the said compensation will
be payable?
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5. The claimant examined two witnesses and the claimant/PW-1, exhibited
Exhibit No. 1 to Exhibit No. 165, which included certified copy of the FIR,
certified copy of the charge sheet, certified copy of the MVI report, certified
copies of the medical report along with the cash memos and investigation done
for the treatment of the claimant. The nature of injury sustained by the claimant
is multiple fracture of right ribs and shattered Spleen. The claimant also
exhibited disablement certificate as Exhibit No. 151. The claimant/appellant also
stated that he was an agriculturist having 5 bighas of land and earned Rs.
8000/- per month as a cultivator. He was the only earning member of the family
and had suffered 70% disability affecting him in his work, as a result of the
accident. PW-2 is Dr. S. Ali, who proved the Disability Certificate (Exhibit No.
151) by adducing his evidence. None of the opposite parties adduced any
evidence before the Tribunal.
6. The learned Tribunal on considering the materials on record decided issue
No. 1 in favour of the claimant and held that claimant Abdul Hussain sustained
injuries in the motor accident dated 06.10.2016 involving the vehicle bearing
registration No. AS-18-C-6405 (Truck), due to the rash and negligent driving of
the aforesaid vehicle.
7. With regard to the quantum of the award, the learned Tribunal noted that
the claimant sustained multiple fracture of ribs of right side and
Haemoperitonnium with grade iv splenic laceration (shattered spleen) for which
the claimant claimed he spend Rs.1,86,979/-, by submitting the medical
documents and vouchers. The learned Tribunal on careful scrutiny of the
medical documents held that the claimant spent Rs. 37,000/- in his treatment
and had also incurred some expenditure towards conveyance, maintenance
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attendant, food etc. and therefore, the claimant is entitled to some amount of
pecuniary damages as accidental expenditure as the claimant had sustained
grievous injury. The learned Tribunal also observed that Dr. S.Ali /Pw2 stated
that on, 24.01.2017, he was one of the member of the District Standing Medical
Board, which issued a 70% disability certificate to the appellant on the
examination of the physical injuries sustained by the appellant. The learned
Tribunal observed that injuries have caused disability which may be calculated
at 40% permanent partial disability, which would definitely reduce the earning
capability of the claimant and hence held that the claimant is entitled to 40%
loss of earnings due to the disability along with other damages.
8. The learned Tribunal relied on the medical documents and held that the
age of the claimant was 40 years at the time of the accident. The learned
Tribunal also observed that though the claimant had said that he was an
agriculturalist by profession, from which he used to earn Rs. 8000/- per month,
however, since there were no supporting evidence produced by him to prove
his monthly income, thus, considering the minimum wage structure prevailing,
the learned Tribunal held that the income of the claimant would be Rs. 4000/-
per month. The multiplier used was 15, since the age of the claimant was
taken in the age group of 36-40 years.
9. The learned Tribunal thus held that the claimant is entitled to
compensation as assessed herein under:-
Medical Expenses…………………………………… Rs. 37,705.00
Loss of earnings p.a…………..Rs. 48000 x40%x15 = Rs. 2,88,000.00
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Accidental expenditure …………………………… Rs. 25,000.00
Pain, Shock and suffering :………………………. Rs. 25,000.00
Total …………………………… Rs. 3,75,705.00
10. The learned Tribunal also found that the driver of the offending vehicle AS-
18-C-6405 (Truck) was having a valid driving license at the time of the accident.
It was also found that the offending vehicle was validly insured with the
opposite party No. 1 at the time of the accident and therefore, held that the
opposite party No. 1 was liable to pay compensation to the claimant.
Accordingly, the learned Tribunal directed that the awarded amount of Rs.
3,70,705/- with interest of 6% p.a from the date of the institution of the claim
petition till the date of the payment, was to be borne by the Insurance
Company/respondent No. 1.
Aggrieved by the above judgment and award, the claimant has filed the
instant appeal for enhancement of the compensation amount awarded by the
learned Tribunal.
11. Mr. A.R. Agarwal, learned counsel for the appellant submits that the
learned Tribunal had failed to take into consideration the evidence on record in
its proper perspective while deciding the case and that the awarded amount is
inadequate and unjust. The learned counsel submits that the learned Tribunal
had erred in taking Rs. 4000/- only as the monthly income of the insured victim,
while it is clear that the victim was an agriculturalist earning Rs. 8000/- per
month at the time of the accident, that the earnings of the insured victim which
is proved by the oral evidence and cross examination of PW-1/claimant. He
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further submitted that the insured victim had suffered 70% disablement and the
learned Tribunal had erred in not making proper assessment of the pecuniary
loss suffered by the claimant and had assessed the loss of earnings only as 40%
without giving any reason or justification. The learned counsel submits that due
to the serious injuries sustained by the claimant, wherein he himself used to
work towards cultivation, his earning capacity has reduced to 100%. For the
above reason, the award is liable to be modified and enhanced. His Disability
Certificate is exhibited as Exhibit 151, issued by the District Standing Medical
Board Goalpara . The permanent disability is 70% but the learned Tribunal had
not taken into consideration the physical disability as assessed by the Medical
Board and had erred in finding that the loss of earning capacity is only 40% .
12. The learned counsel for the appellant further submits that the learned
Tribunal had erred in awarding only Rs. 37,705/- as medical expenses in spite of
the fact that the claimant/appellant had incurred more than Rs. 1,86,979/- in his
treatment and medical bills/vouchers were duly submitted. The learned counsel
also submits that non-acceptance/non-consideration of some medical bills and
reduction from the bills and vouchers submitted is unwarranted and without any
reason.
13. The learned counsel thus submits that the awarded amount made by the
Tribunal is on the lesser side and should be enhanced. The learned counsel for
the appellant has relied on the judgment of the Apex Court in Syed Sadiq Vs.
Divisional Manager, United India Ins. Company, reported in (2014) 2
SCC 735, Smt. Neeta vs.The Divisional Manager, MSRTC reported in
2015(1) T.A.C 340(SC), (Principal Seat) in Colap Lata Goswami and
Anr vs. Ajit Deka and ors. reported in (2016) 4 GLR1
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14. The learned counsel also relied on the following rulings for the
enhancement of the award due to the permanent disability suffered by the
claimant/appellant ; Raj Kumar Vs. Ajay Kumar & Anr., reported in (2011)
1 SCC 343, Sanjay Batham Vs. Munnalal Parihar & Ors., reported in
(2011) 10 SCC 665, Basappa Vs. T. Ramesh & Anr., reported in 2014 (4)
T.A.C 663 (S.C), Sri Laxman Vs. Divisional Manager, Oritl. Ins.
Company Ltd. & Anr., reported in (2012) 1 TAC 376. The judgment of a
Coordinate Bench of this Court (Agartala Bench) in Narayan Chandra Banik
Vs. Siddarthan Sankar Ray & Ors., reported in (2013) 2 GLR 522. Sanjay
Verma Vs. Haryana Roadways, reported in (2014) 3 SCC 210, the
judgment of the Allahabad High Court in Oriental Insurance Company Ltd.
Vs. Surendra Umrao & Anr., reported in 2007 (3) T.A.C 40 (All.). MD
Goffar Ali Vs. MD Golam Ali, reported in 2015 (2) T.A.C 197 (Gau),
15. Mr. A.J. Saikia, learned counsel for respondent No. 1/Insurance Company,
on the other hand submits there were no grounds to interfere with the
judgment of the learned Tribunal since the learned Tribunal had rightly assessed
the amount to be awarded to the appellant as per the documents produced and
available on record. The learned counsel also submits that in the medical
documents submitted and the deposition of PW-2, it is stated that the
claimant/appellant can be cured slowly. That the injury is on the ribs and thus,
the nature of disablement is temporary and is not a permanent disability as
claimed by the claimant/appellant. The learned counsel also submits that since
no documents to prove the income of the claimant is produced, the learned
Tribunal has rightly taken the income of the claimant at Rs. 4000/- per month
which is a reasonable amount.
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16. I have heard the contentions of both the parties and have also perused the
documents on record. The instant appeal is with regards to the quantum of the
award granted by the learned Tribunal. It is seen that the claimant/appellant
has claimed that he owned 5 bighas of land and earned his living as a
cultivator/agriculturist earning an income of Rs.8000/ per month. However since
no income certificate was produced, the learned tribunal had taken the income
at Rs.4000/- per month.
The coordinate bench of this court in Smt. Neeta vs.The Divisional
Manager, MSRTC(supra) had held that the court would be entitled to resort
to rational guess work so as to ascertain the income of the deceased when no
definite materials are available so as to establish the same by applying the ratio
laid down by the Apex Court in Aswini Kumar Mishra v.P.Muniam Babu
reported in (1999)SLT 447, wherein it was held that whenever a tribunal is
required to fix the amount of compensation in cases of accident, it involves
some guess work, some hypothetical consideration, some amount of sympathy
linked with the nature of disability caused. However all such elements are
required to be viewed with objective standards. While assessing damages, the
court cannot base ots opinion merely on speculation or fancy though
conjectures to some extent is inevitable.
It is seen that the Apex court in Syed Sadiq ETC vs. Divisional
Manager,United India INS Co.(supra) held that a labour involved in an
unorganized sector doing his own business is not expected to produce
documents to prove his monthly income. Going by the present state of economy
and rising prices in agricultural products held that a vegetable vendor is
reasonably capable of earning Rs.6,500/- per month.
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This court is thus of the considered view that the learned Tribunal has
assessed the income of the claimant on the lower side and find it appropriate to
enhance the income of the claimant/appellant from Rs.4000/- to Rs. 6500/- per
month.
17. This court also finds that the learned tribunal held that the claimant spent
Rs.37,705/- without giving any reasons, as to why, the medical bills and
vouchers duly exhibited, have not been accepted in total, thus, this court finds it
fit to accept the medical bills and vouchers amounting to Rs.1,86,979/- for the
treatment of the grievous injury sustained by the claimant, wherein, he is shown
to have sustained multiple fracture of ribs if right side and Haemoperitonium
with grade iv spleen laceration (shattered spleen) and was hospitalized from
06.10.2016 to 27.10.2016.
18. This court however finds that there is no mention in the disablement
certificate exhibited as Ext.No.151, that the disability is of permanent nature,
but on considering the nature of the injury sustained by him, wherein, the
claimant being a cultivator will require active physical activity, the 70%
disablement is likely to affect his earning capacity to a great extend and
therefore this Court find it fit if 50% is taken as functional disability. This Court
also find it appropriate if the amount for pain, shock and suffering is increased
to Rs. 50,000/- from Rs. 25,000/-. Accordingly, the awarded amount is
enhanced as below:-
Medical Expenses…………………………………… Rs. 1,86979.00.
Loss of earnings p.a…………..Rs.6500x12 x50%x15 = Rs. 5,85,000.00
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Accidental expenditure …………………………… Rs. 25,000.00
Pain, Shock and suffering :………………………. Rs. 50,000.00
Total …………………………… Rs. 8,46,979.00
19. The enhanced award with an interest of 6% per annum from the date of
the institution of the claim petition till the date of the payment, is to be borne
by the Insurance Company/respondent No. 1. The enhance awarded amount of
Rs. 8,46,979/- (Rupees eight lakh forty six thousand nine hundred and seventy
nine) only should be deposited into this registry after adjusting the original
awarded amount, if already received by the claimant, and the appellant is at a
liberty to withdraw the same after due verification by the registry.
The award granted by the learned Tribunal would thus stand modified in the
above manner by granting the aforesaid enhancement.
Accordingly, MAC Appeal No. 674/2019 stands allowed to the extent
indicated above.
No order as to costs.
JUDGE
Comparing Assistant