Before Kalyan Jyoti Sengupta And Aniruddha Bose, JJ.

( 1 ) THIS appeal is directed against the Judgment and Award passed by the learned Tribunal (Additional District and Sessions Judge), Durgapur dated 16th june, 2003. Being aggrieved by and dissatisfied with the quantum of amount granted by the learned Tribunal, the appellant has preferred this appeal.

( 2 ) THE appellant was a victim of an accident which occurred between a bus and a truck. He was travelling in the bus from Siliguri and the truck which was coming from the opposite side collided face to face. It is admitted position that the petitioner sustained injuries and after getting medical treatment he recovered from his injuries. However, he lost three fingers of his right hand, which were ultimately amputated. In order to get medical treatment initially, he was admitted to a local hospital at Gajol and from there he was taken to the malda District Hospital where the treatment was found to be not in commensurate to the need and as a result whereof, the victim had to be admitted to Durgapur main Hospital where he underwent an operation and after one and a half months he was sent to Christian Medical College at Vellore in the State of Tamil Nadu for better treatment, where he was given all possible treatment and there also he did not get good result and ultimately, he had to be admitted to the SSKM hospital where he again underwent three operations and remained under treatment for one and a half years. The aforesaid facts have been proved by oral evidence and there has been no cross-examination on this point and fact of incurring expenses on account of medical treatment at the diverse hospitals, as recorded above by us.

( 3 ) THE appellant's claims are as follows :

(i) A sum of Rs 60,000/- on account of medical expenditure. (ii) A sum of Rs 1,00,000/- on account of pecuniary loss and physical disability. (iii) Pain sufferings ana mental agony of Rs. 40,000/ -. (iv) Loss of future income of Rs. 50,000. 00.

( 4 ) THUS, the total claim of the appellant aggregated to Rs. 2,50,000. 00. The learned Tribunal after going through the evidence and considering the rival contentions of the claimant and the Insurance companies came to the conclusion that the appellant was entitled to get an award of Rs. 40,000/- which included a sum of Rs. 30,000. 00 on account of the moneys spent for medical treatment and a sum of Rs. 10,000. 00 also for mental pain and agony.

( 5 ) MR. Krishanu Benik, learned Counsel appearing for the appellant contends that the amount of compensation by no stretch of imagination can be said to be just and proper. The learned Tribunal did not consider the case of loss of income on account of loss of earning capacity. This should have been considered and claim on this account ought to have been awarded by the learned tribunal applying the legal position and principle as adopted by the Act and applying structured formula laid down in Workmen Compensation Act. He contends that it is true that there has been no evidence to that effect, but by virtue of the provisions of the law, it has to be considered and granted automatically whether the victim actually lost earning capacity or not and in support of his submissions, he has relied upon a Division Bench decision of this Court in case of United India Insurance Co. Ltd. v. Phurba Dorjay reported in (2004)1 WBLR (Cal) 597. He has drawn our attention to paragraph 9 of the said judgment.

( 6 ) THE compensation on account of medical treatment as awarded is absolutely an absurd amount and the appellant has produced series of documents in support of his claim wherefrom one can presume safely that how much expenditure could be incurred by a patient to travel to four hospitals at different places and undergoing varieties of the treatment including surgical operation over one and a half years. He contends that even the traveling expenses of the patient (the appellant) for going to Malda, Durgapur, Vellore and then kolkata a

Click Here to Read the rest of this document