Allowed

Pradip Debbarma v. Narendra Paul and Anr.

Tripura HC16 Jun 2017MAC App./76/2008

Case brief

AI extract

What is this about?

This appeal challenged a Motor Accident Claims Tribunal award of Rs. 45,000 as inadequate following an accident where the appellant suffered amputation of toes. The Court set enhanced compensation at Rs. 2,06,500 including hospitalization and pain, directing the insurer to pay it.

What did the court decide?

Compensation enhanced to Rs. 2,06,500 carrying interest from judgment date; insurer to deposit the amount in the tribunal within three months.

Pradip Debbarma Vs Narendra Paul and Anr. — Medical Negligence | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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MAC APP 76 of 2008

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Sri Pradip Debbarma , S/O Tirtha Kumar Debbarma, resident of village- Surjyamaninagar, P.S. Amtali, District- West Tripura,

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… Appellant

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Versus –

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1. Sri Narendra Paul , son of late S.C. Paul, resident of North Badharghat, P.S. West Agartala, District- West Tripura (Owner of TR-01-A-1205, Mini Bus)

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2. The National Insurance Company Limited , Divisional Office at 42 Akhaura Road, Agartala, West Tripura represented by its Divisional Manager (Insurer of TR-01-A-1205, Mini Bus)

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… Respondents

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the appellant : Mr. B. Debnath, Advocate. For the respondent no.2 : Mr. A. Nandi, Advocate For the respondent no.2 : Mr. A. Lodh, Advocate (in CO(FA) 21 of 2008) Date of hearing & delivery of Judgment and Order : 16.06.2017 Whether fit for reporting : NO

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JUDGEMENT AND ORDER (ORAL)

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Heard Mr. B. Debnath, learned counsel appearing

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for the appellant as well as Mr. A. Nandi, learned counsel appearing for the respondent No.2, and Mr. A. Lodh, learned counsel appearing for the respondent No.2 in CO(FA) 21 of 2008.

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2. Both the appeals being MAC APP no. 76 of 2008 and CO(FA) 21 of 2008 are consolidated for disposal by a common judgment as in the appeal and the cross objection

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MAC APP 76 of 2008 Page 1 of 6

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the judgment and award dated 23.02.2007 delivered in T.S. (MAC) 117 of 2006 is under challenge. However, the grounds of challenge in the appeal and in the cross objection are different. In the appeal, the injured claimant has challenged the award as inadequate and unjust in terms of Section 168 of the MV Act and in the cross objection, the owner of the vehicle has challenged the award for shifting the liability of payment of the award on him by the tribunal. Unfortunately none appears for the cross objector when the matter is taken up.

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3. The facts relating to the accident and negligence of the offending vehicle bearing registration no. TR-01-A-1205 (mini bus), a Public Transport vehicle are not in dispute. The appellant met the said accident on 06.12.2005 when he was returning to his house at Surjyamaninagar by boarding the said vehicle from Bishalgarh. When it reached to Bishalgarh Chowmuhani, the appellant, for a sudden jerk, fell from the bus for negligent driving of the said vehicle by its driver. The vehicle at the relevant point of time was plying with an extreme speed. The petitioner was initially taken to Bishalgarh hospital for treatment. He was released and was being treated as an indoor patient but after some days he was referred to the GBP hospital, Agartala where he was admitted as an indoor patient on 12.12.2005. There he was treated till 13.02.2006. At the time of treatment at GBP

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MAC APP 76 of 2008

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Page 2 of 6

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hospital, his right foot was amputed by the doctor on 24.12.2005.

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4. The respondents however did not insisted that the accident or the injuries suffered therefrom were not relatable. But they acceded to the finding returned by the tribunal in this regard.

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5. By filing an application for compensation under Section 166 of the Motor Vehicles Act, the appellant claimed a sum of Rs. 19,94,000/- on various heads, but the tribunal by the impugned judgment assessed the compensation at Rs. 45,000/- payable with interest @6% per annum from 03.03.2006 till the payment is made.

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Mr. Debnath, learned counsel has submitted that the said compensation is extremely inadequate and such assessment has been made without taking proper stock of the evidence as placed for compensation. Mr. Debnath, learned counsel has referred particularly to the discharge certificate issued by GBP hospital, Agartala (Exhibit-2) wherefrom this court has gathered that the second and third toe of the victimappellant was amputed on 24.12.2005 as those were found gangrenous. Mr. Debnath, learned counsel has further submitted that the petitioner deserved a reasonable compensation. According to him, the petitioner was a driver by profession. But no document in this regard has been produced before the tribunal. Mr. Debnath, learned counsel has further submitted that after the appeal was filed, the

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MAC APP 76 of 2008

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Page 3 of 6

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appellant has been favoured with a disability certificate to the extent of 25% but unfortunately no attempt has been made to bring that certificate on the record. As such, this court cannot take any notice of the said disability certificate. The tribunal while assessing the compensation has observed nothing about the occupation of the appellant nor the damage that he has suffered for amputation of the second and third toe and his hospitalization from 12.12.2005 to 13.02.2006

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6. Mr. Nandi and Mr. Lodh, learned counsel however have strenuously argued in defence of the said judgment and award. Both of them have drawn attention of the court that no voucher for purchase of medicine, no money receipt for payment to the attendant, no certificate showing the disability and nor the driving license in support of the appellant being a driver of a heavy vehicle has been filed nor before the tribunal neither before this court. Thus, there is no infirmity, apparent on the face of the impugned judgment and award.

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7. Be that as it may, this court would on scrutiny of the records and appreciating the submissions of the learned counsel find that the compensation that has been awarded is inadequate for the person who was hospitalized from 12.12.2005 to 13.02.2006 and whose second and third toes were amputed in the government hospital as fall out of the injury that he had suffered in this accident. Where there is no documentary evidence, the court may embark on guess work

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MAC APP 76 of 2008

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Page 4 of 6

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to find out the notional or actual medical expenses, pain and suffering that the appellant had suffered as well as damage for reducing the capacities to earn and enjoy and amenities of life. But this is a case where a casual approach to prove the damage is noticed. For amputation of the second and third toes, a permanent partial disablement is bound to occur and since this fact is not under challenged, this can be accepted but the difficulty that this court faces how the permanent partial disability would affect the income as that has not been established by the appellant by adducing the expert witness in the tribunal. As such, this court would be in serious difficulty in ascertaining the loss of income in this regard. The loss cannot be determined following the procedure as established, but on a lumpsum basis.

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8. For hospitalization of 63 days, the appellant is entitled to get Rs.500/- per day in average inclusive of cost of medicine, attendants, conveyance charges etc. Thus, for the hospitalization, the appellant would get Rs. 31,500/-. The appellant also gets Rs. 1 lakh for pain and suffering and the loss of income on lumpsum basis is determined at Rs.75,000/. The total compensation would there come to Rs. 2,06,500/-. The said amount shall carry interest @6% per annum from the date of filing of the claim petition. The interest shall not be calculated since 06.03.2006 i.e. the date of filing the claim petition but the interest shall be calculated from the date of this judgment till the payment is made.

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MAC APP 76 of 2008

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5 of 6

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9. In the cross objection, the question that has been raised by the cross-objector, the owner of the offending vehicle is that he had the valid insurance for his vehicle for the period from 12.12.2004 to 11.12.2005 by virtue of the policy no. 203000/31/84/6305633, but it is apparent that the said certificate of the insurance was not filed before the tribunal. This court is inclined to accept the certificate of insurance as Exhibit ‘A’ straightway by exercising the power as conferred under Section 165 of the Evidence Act. The Registry shall pull out the said certificate of insurance from the memorandum of appeal and place it with the records of

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the tribunal after placing a photocopy of the said insurance certificate with the memorandum of appeal.

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10. In view of Exhibit ‘A’ the insurance policy, the respondent no.2 shall pay the award within a period of 3 (three) months from today and the said amount shall be deposited in the tribunal below. If the respondent no.2 has paid the awarded sum, they will be entitled to deduct the said sum from the said amount at the time of making deposit before the tribunal.

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11. With this observation, both the appeal and the cross objection are allowed to the extent as indicated above. There shall be no order as to costs.

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JUDGE

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Saikat

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MAC APP 76 of 2008

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6 of 6

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Page

Pradip Debbarma v. Narendra Paul and Anr.

Case brief

What is this about?

What did the court decide?

Pradip Debbarma v. Narendra Paul and Anr.

Case brief

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What did the court decide?

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