Partly allowed

Biswajit Chakraborty v. Mantu Deb

Tripura HC16 Jun 2017MAC App./36/2015

Case brief

AI extract

What is this about?

The High Court dismissed the appellant's appeal seeking enhancement of compensation awarded in a motor accident case. While noting errors in the Tribunal's assessment of income and failure to prove disability, the Court denied enhancement for disability but increased the award for pain and suffering by adding Rs. 50,000 to the original amount.

What did the court decide?

Appeal dismissed subject to an additional payment of Rs. 50,000/- for pain and suffering, raising the total compensation to Rs. 1,28,985/- with interest.

Biswajit Chakraborty Vs Mantu Deb — Medical Negligence | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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MAC APP. NO.36/2015

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Sri Biswajit Chakraborty, Son of Sri Narayan Chakraborty, Village-Durganagar, P.S.-Ranirbazar, District-West Tripura.

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…. Claimant -Appellant.

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-: Versus :-

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Sri Mantu Deb, S/O. Late Hiralal Deb, Resident of Kashipur, P.S.-East Agartala, District- West Tripura. (Owner of the Vehicle bearing No. TR-01-C-3753, Tata Magic).

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The New India Assurance Company Ltd., Divisional Office, Mantribari Road, Agartala, District-West Tripura. (Represented by its Divisional Manager.) (Insurer of the Vehicle bearing No. TR-01-C-3753, Tata Magic).

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….. Opposite Party-Respondents.

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B E F O R E

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HON’BLE THE CHIEF JUSTICE

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Counsel for the appellant : Mr. S. Datta, Advocate. Counsel for the respondent No.2 : Mr. K. Deb, Advocate. Date of hearing & Judgment : 16-06-2017.

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JUDGMENT & ORDER (ORAL)

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Heard Mr. S. Datta, the learned counsel for the appellant. Also heard

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Mr. K. Deb, the learned counsel for the Insurance Company.

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Dissatisfied with the compensation of ₹88,985/- with interest @ 9%

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per annum from the date of filing the claim petition, this appeal has been filed by the appellant for enhancement of the compensation.

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MAC APP. NO.36/ 2015 Page 1 of 5

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The facts giving rise to the appeal are that on 06.01.2013, at about 1630 hours, the appellant was proceeding from Bishramganj to Agartala by boarding the TATA Magic vehicle bearing registration No.TR-01-C-3753 and as the vehicle was driven in a rash and negligent manner, the same dashed against a stationery bus. As a result, the appellant claimed to have sustained grievous injuries on his body. He was then shifted to AGMC & GBP Hospital, Agartala where he was admitted on 06.01.2013 and was discharged on 12.02.2013. During that period, an operation was claimed to have conducted and steel plate and screws were inserted on his right hand. Thereafter, he continued his treatment as an outdoor patient and also from a private doctor. According to the appellant, despite the treatment given to him, his right hand has become completely paralyzed and has now become a disabled person. He is stated to have spent a sum of ₹50,000/- for the treatment of his injuries. He claimed that he was 25 years old at the time of the accident and was carrying on the profession of a carpenter with a monthly income of ₹11,400/-. He, therefore, filed the claim petition seeking a compensation of ₹40,53,120/- for the damage caused to him due to the vehicular accident.

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Both the owner of the vehicle and the New India Assurance Company Limited contested the claim petition by filing their respective written statements. They denied any liability to pay the compensation.

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On the pleadings of the parties, the following issues were framed to settle the claim:

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Did the claimant sustain any injury on 06.01.2013 at about 1630 hours at Chesrimai on the Agartala to Bishramganj Road in a road traffic accident involving the Tata Magic vehicle bearing No.TR-01-C-3753 due to its rash or negligent driving by the driver of the vehicle?

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MAC APP. NO.36/2015 Page 2 of 5

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Is the claimant entitled to be compensated under the provision of M.V. Act, 1988? If so to what extent and who shall be liable to pay the same?

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After the trial, the Tribunal passed the impugned judgment awarding a sum of ₹88,985/- together with an interest @ 9% per annum from the date of the claim petition.

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Three contentions are raised by the learned counsel for the appellant in attacking the impugned judgment, namely, (i) though the income of the appellant was ₹11,400/- per month at the time of the accident, the Tribunal assessed his income at ₹6,000/- per month, which did not reflect the actual income earned by him; (ii) though the disability certificate reflected the percentage of his disability at 20% for 5(five) years, the Tribunal did not take into consideration this fact while assessing the compensation amount; and (iii) though the vehicle was insured with the New India Assurance Company Limited for the period commencing from 08.01.2013 to 07.01.2014, the Tribunal wrongly held that the vehicle was not insured.

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On the other hand, the learned counsel for the Insurance Company supports the impugned judgment and submits that the compensation was awarded by the Tribunal after duly taking into consideration all aspects of the matter including the fixation of the liability to satisfy the award upon the owner of the vehicle. At the outset, he draws my attention to the date of the accident, which is 06.01.2013 and submits that since the insurance coverage was only for the period between 08.01.2013 and 07.01.2014, the offending vehicle was not insured with the insurer at the time of the accident. He thus submits that the Tribunal correctly held that on the date of the accident, the vehicle was not insured with the Insurance Company, which cannot, by any stretch of imagination, be held liable to satisfy the award passed by the Tribunal. He also submits that the appellant could not show any evidence to support his assertion that he was drawing a sum of

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MAC APP. NO.36/2015 Page 3 of 5

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₹11,400/- per month as an income at the time of the accident. The learned counsel for the Insurance Company also submits that the extent of disability of the appellant could not be proved by him inasmuch as no medical officer was examined by him in this behalf. He, therefore, submits that the impugned judgment is perfectly legal and does not call for the interference of this Court.

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After hearing both the learned counsel, I am satisfied that the impugned judgment does not suffer from any infirmity warranting the interference of this Court. The assessment of the income of the appellant at ₹6,000/-, as against his assertion that he was earning ₹11,400/-, is reflective of the ground realities and he could not have possibly earned even ₹5,000/- per month in those days. Therefore, the Tribunal correctly assessed the income of the appellant at ₹6,000/- per month. The Tribunal is also correct in holding that the extent of disability of the appellant could not be proved by him in the absence of medical evidence. The Tribunal correctly followed the decision of this Court in Smti. Nirmala Das vs. Madhab Chandra Saha & another (MAC APP. No.133 of 2005) . The burden of proof to show that the appellant suffered permanent disability to the extent of 20% is upon the appellant and having failed to discharge this burden, there is no reason to hold that he suffered permanent disability to the extent of 20%. As for the liability to satisfy the award, it is now proved that the accident took place on 06.01.2013, when, as found by me, vehicle was not insured on the date of the accident. It is, therefore, the liability of the owner of the TATA Magic vehicle to satisfy the amount of compensation awarded by the Tribunal. No other issue remains to be resolved.

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Having said that, I find that the Tribunal is unduly economical in awarding a mere ₹ 10,000/- for the pain and sufferings of the appellant. For a person, like the appellant, who undoubtedly have met a vehicular accident, the pain and suffering undergone by him due to the accident should be considered in their true perspective. To this extent, a sum of

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MAC APP. NO.36/2015 Page 4 of 5

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₹50,000/- can be awarded for the pain and suffering undergone by the appellant due to the vehicular accident.

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In the result, the appeal is dismissed subject to payment of another sum of ₹40,000/- in addition to ₹10,000/- awarded by the Tribunal in the impugned judgment. The owner of the vehicle, i.e. the respondent No.1, is directed to deposit a compensation of ₹88,985+₹40,000=₹1,28,985/- (rupees one lakh twenty eight thousand nine hundred eighty five) to the appellant together with interest @ 9% per annum from the date of the claim petition within two months from the date of receipt of this judgment. Transmit the L.C. record.

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CHIEF JUSTICE

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MAC APP. NO.36/2015 Page 5 of 5

Biswajit Chakraborty v. Mantu Deb

Case brief

What is this about?

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Biswajit Chakraborty v. Mantu Deb

Case brief

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