Dismissed

Ujjala Nag v. Royal Sundaram Aliance Insurance Co. Ltd. and 2 Ors.

Gauhati HC8 Apr 2019I.A.(Civil)/1006/2018

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed the insurance company's appeal against a motor accident claim award. The court upheld the Tribunal's findings on the 75% disability percentage and the assumed monthly income of Rs. 7,500 despite the appellant's objections regarding evidence sufficiency.

What did the court decide?

The appeal stands dismissed and the lower court's award is affirmed.

Ujjala Nag Vs Royal Sundaram Aliance Insurance Co… — Motor Accident Claims | Gauhati HC (2019)

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Page No.# 1/6

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GAHC010124412016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : MACApp. 402/2016

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Royal Sundaram Alliance Insurance Co. Ltd.

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Having its Regisetered Office at Subramania Building, 2nd Floor, No. 1 Club House Road, Chennai 600002 Represented by its Zonal Manager, Office at Divine Plaza, G.S. Road, Dispur, Super Market, Guwahati, Assam-07

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Versus 1:On The Death Of Subhojit Nag his Legal heir Ujjala Nag and Anr, W/O Late Indrajit Nag, R/O Ward No. 8, Kharupetia Town, P.O. Kharupetia, P.S. Dalgaon, Dist. Darrang, Assam. 2:Md. Ali Mortoza S/O Md. Omar Ali Vill. Kamarpara P.O. Junglepara P.S. Dalgaon Dist. Darrang Assam Advocate for the Petitioner : Mr. S.S. Sharma Advocate for the Respondent : Mr. M. Islam

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Date of hearing: 26.06.2019

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Date of Judgment: 26.06.2019

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Page No.# 2/6

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BEFORE

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HON’BLE MR. JUSTICE AJIT BORTHAKUR

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Judgment and Order (Oral)

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Heard Mr. S.S. Sharma, learned counsel for the appellant and Mr. M. Islam, learned counsel for the claimant/respondent.

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This appeal under Section 173 of the Motor Vehicles Act, 1988 (‘M.V Act’ for short) is directed against the Judgment and award, dated 26.07.2016, passed by the learned Addl. District Judge, F.T.C., Darrang at Mangaldai in M.A.C Case No (i) 138 of 2011.

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The claimant/respondents’ case, precisely, is that on 15.10.2010 at about 9.30 a.m., while the claimant Subhojit Nag (now dead) along with his friend one Jugal Kishore Paul was proceeding towards Dalgaon by his motorcycle No. AS 13/0064 (Temporary Registration) and reached Alikash, the offending vehicle bearing registration No. AS 01 U/3917 (TATA Indica), which was driven in a rash and negligent manner dashed against their motorcycle from behind. In the said accident, his friend Jugal Kishore Paul died on the spot. The claimant Subhojit Nag (now dead) sustained grievous injuries. The local people immediately shifted him to Kharupetia Hospital for treatment.

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The owner and the driver of the offending vehicle contested the claimant’s case by filing a written statement denying the claim of the claimant. It was contended that at the relevant time of the accident, the offending vehicle was driven towards Dalgaon and the claimant/injured (now dead) was also driving their motorcycle on the same direction, but the claimant all on a sudden pressed the brake and as a result, he sustained injuries, when the motorcycle skid off the Highway. According to them, the accident did not occur due to rash and negligent driving of the vehicle, which was duly insured with the appellant/insurance company.

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The insurance company of the motorcycle namely, National Insurance Co. Ltd. contested the proceeding by filing a written statement. It was contended that the claimant suppressed the actual facts of the accident, without specifically denying the accident and that at the time of accident, who was riding the motorcycle. The insurance company did not deny the insurance coverage of the motorcycle at the time of the accident.

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Based on the above pleadings, the learned Tribunal framed the following issues (extracted):

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Page No.# 3/6

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“(1) Whether the injured sustained grievous injury in a road traffic accident due to rash and negligent driving of the Offending Vehicles, such as, Vehicle No. AS-01 U-3917 and the Motor Cycle No. AS-13-0064?

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(2) Whether the offending vehicles were duly covered with the insurance policy at the relevant time of accident?

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(3) To what relief/reliefs, the parties are entitled to?”

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The claimant examined 6 (six) witnesses including himself, while the respondents including the appellant insurance company and others did not examine any witness.

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The learned Tribunal, after appreciating the evidence, oral and documentary, on record and hearing the learned counsel of both sides, passed the impugned Judgment and award as stated above.

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Be it mentioned here that after the impugned Judgment and award was passed on 26.07.2016 in MAC Case No. 138/2011, the claimant/injured died on 13.08.2017 and as such, by filing I.A (Civil) No. 1007/2018, his mother Smti. Ujjala Nag prayed for substitution of her name in place of the respondent No. 1, the claimant/injured Subhajit Nag, which was allowed vide order, dated 21.02.2019.

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Being aggrieved, the appellant/ insurance company has preferred the instant appeal, inter alia, on the following grounds:

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(a) That the total disability of lower limbs suffered by the claimant did not justify the finding of disability of whole body to the extent of 75% and resultant loss of earning capacity to the extent of 75% and hence, the awarded amount requires suitable reduction; and

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(b) That in absence of any reliable documentary evidence about the monthly income of the claimant, it was not justified to assume his monthly income at Rs. 7,500/- p.m. and therefore, the same ought not to have been presumed more than Rs. 5,000/-. p.m. and accordingly, the award requires suitable reduction.

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Mr. S.S. Sharma, learned counsel for the appellant/insurance company, during argument has emphasized the above two grounds of appeal with reference to the evidence on record.

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Per contra, Mr. M. Islam, learned counsel for the claimant/respondents herein, has contended that the claimant/injured expired on 13.08.2017 as a result of RTA that took place in the year 2010 vide the death certificate issued by NH Narayana Superspeciality Hospital, Amingaon. Mr. Islam further submits that para nos. 15 and 16 of the impugned Judgment and award contain a detailed analysis of

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Page No.# 4/6

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evidence, whereby disability of the claimant/injured was proved. Mr. Islam has contended that no fresh claim case is filed after death of the claimant/injured due to the injuries sustained in the said accident.

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I have considered the above arguments advanced by the learned counsel of both sides and perused record in the context of the above grounds of appeal.

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A perusal of the impugned Judgment and award, it is noticed that the learned Tribunal computed the compensation amount as follows:

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Rs. 56,625.00 x 12 x 17 = Rs. 11,47,500.00

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Pecuniary damaged is fixed at = Rs. 6,66,816.00

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Loss of pain and suffering = Rs. 50,000.00

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Total: Rs. 18,89,316.00

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with interest @ 7% per annum from the date of the amendment of the petition i.e., 29.04.2015

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With regard to the nature of injuries sustained by the claimant (now dead), C.W.1, Subhajit Nag, the claimant, interalia, deposed that in the accident caused by rash and negligent driving of the vehicle, bearing registration No. AS 01 U-3917 (TATA Indica), he sustained multiple grievous injuries, while his accompanying friend Jugal Kishore died on the spot. He was treated at Kharupetia Hospital, Mangaldai Civil Hospital, Gauhati Medical College and Hospital (GMCH) and Dispur Hospital, Guwahati Neurological Research Centre (GNRC) respectively in quick successions. He underwent a number of major operations at GNRC but as his condition did not improve, he was referred to the Indian Spinal Injuries Centre, New Delhi, where he was treated till 24.02.2011. However, still his health condition did not improve and he was brought back home due to inability to arrange sufficient money for his further continuation of the treatment. His health condition so deteriorated that could not stand on his foot as both the legs were totally disabled and had to move in wheel chair and with the help of walker. He also sustained brain injuries. Thus, the claimant/injured (now dead) had become disabled to the extent of 90%. He exhibited 20 (twenty) number of documents inclusive Ext. 19, the Permanent Disability Certificate issued by the notified Medical Authority in relation to his both lower limbs and Ext. 20, the Medical Certificate issued by C.W. 5, Dr. P. Choudhury, the doctor.

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In the short cross-examination, the appellant/insurance company did not dispute the injuries and the rate of permanent disability.

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Page No.# 5/6

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C.Ws. 2, 3 and 4, namely, Md. Saitullah Ali, Sri Payal Nag and Sri Kanu Pal respectively have categorically stated that the claimant (now dead) sustained multiple injuries in the accident and they in their estimation, put the percentage of disability to the extent of 95%.

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Supporting the evidence of the claimant/injured (now dead), C.W. 5, Dr. P. Choudhury, the doctor, who was the member of the expert jury and who examined the C.W. 1, had found 90% disability due to paraplegia (both lower limbs) caused by spinal injury vide Ext. 19, the Permanent Disability Certificate. Further, C.W. 6, Dr. B.B. Dey, Senior Consultant in the Department of Neurosurgery in G.N.R.C., has also supported the evidence of the claimant/injured (now dead) deposing that the latter reported to the GNRC, on 28.10.2010, with history of RTA at Kharupetia and recognized the report of GNRC vide Ext. 9. Ext. 9 shows that the injured was diagnosed with head injury, fracture of lower dorsal spine D12 with spinal injury and displaced fracture of right big toe proximal phalanx. The appellant/insurance company, in cross-examination of C.Ws. 5 and 6 has not disputed their findings on the injuries and approximate percentage of disability.

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Inspite of the above, the learned Tribunal substituted the finding of medical experts in regard to the permanent disability of 90%, substituted the aforesaid finding by holding the opinion of 75% of disability based on the plight of the claimant/injured (now dead) as evident from his overall morphological appearance. In the backdrop of such abundance of evidence, oral and documentary, substitution of medical expert’s opinion was not permissible. However, as the claimants’ side has not raised any objection, as such, the learned Tribunal’s finding of permanent disability of the injured at 75% is accepted for the purpose of the instant claim proceeding.

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With regard to the issue of income of the claimant/injured (now dead), it appears that although he claimed to be an Electrician, he was not a qualified Electrician with a formal ITI qualification and worker in a private Mill. No documentary evidence in connection with his profession was produced and exhibited. No documentary evidence in support of his monthly income of Rs. 12,000/- was also produced and exhibited. However, on an overall appreciation of evidence on record, the learned Tribunal assessed his monthly income, as he was an young youth of 25-30 years, at Rs. 7,500/-, that is, @ Rs. 250/- per day. The aforesaid assessment of income of the claimant/injured, who has succumbed to the injuries after 6 (six) years of the accident at an young age of 25-30 years, cannot be said to be unjustified in terms of the approximate market price of the consumer articles and accordingly, the aforesaid assessment of the monthly income is accepted.

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For the reasons, set forth above, this Court sees no merit in the instant appeal warranting any interference in the impugned Judgment and award. Accordingly, the appeal stands dismissed.

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Page No.# 6/6

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Return the LCR.

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This disposes of the appeal.

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JUDGE

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Sandipon

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Comparing Assistant

Ujjala Nag v. Royal Sundaram Aliance Insurance Co. Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

Ujjala Nag v. Royal Sundaram Aliance Insurance Co. Ltd. and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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