The main legal point established in the judgment is that the insurer's failure to defend the claim properly can lead to an adverse inference, and compensation should be awarded based on the severity of the injuries and the improvement in the victim's condition.

JUDGMENT :

Dipankar Datta, J.

1. A five year old child, Biswarup Mandal (hereafter the victim), while returning home after attending a nursery school met with a road accident on 10th May, 2011 at about 11.30 hours. He was dashed by a speeding motorbike, and suffered multiple injuries. A head injury suffered by him was the most severe. Since the place of the accident was near about Egra, a small town in Purba Midnapore district where adequate medical facilities were not available, the parents of the victim perforce had to shift him to the Institute of Neurosciences, Kolkata (hereafter the Institute) on the advice of the Contai Sub-divisional hospital. The victim was treated at the Institute till May 14, 2011, whereafter he was admitted to Medline Nursing Home, Kolkata. Having been treated at the nursing home for another 5/6 days, the victim was finally discharged on May 19, 2011.

2. The parents of the victim, immediately after the accident, did not lodge any complaint with the police. It was almost 33 days after the date of the accident that Egra Police Station F.I.R. No. 92/11 dated June 14, 2011, under Sections 279/338 of the Indian Penal Code was registered on the basis of a written complaint of the father of the victim of even date. In such written complaint, it was alleged that a motorbike bearing registration no.WB-32A/8589 (hereafter the said bike) was responsible for the accident which could have even claimed the life of the victim.

3. A few days thereafter, the mother of the victim (hereafter the claimant) presented an application dated July 8, 2011 before the relevant motor accident claims tribunal (hereafter the tribunal) under Section 166 of the Motor Vehicles Act, 1988 (hereafter the Act) claiming Rs.3,25,000/- as compensation for the victim. While alleging that the said bike had caused the accident and the driver thereof was solely responsible therefore, it was also pleaded as under:

“Due to the impact of the said accidental injuries the victim has totally and permanently lost his working as well as earning capacity and has become permanently disabled and his entire future is under bleak”.

In respect of the nature of injuries suffered by the victim, it was pleaded as follows:

“Multiple severe injuries all over the body especially right parietal depressed fracture with overlaying scalp loss and multiple hemorrhage and contusion, causing the victim suffered permanent disablement.”

4. Upon notice of the application being served on the owner of the said bike, Sri Nirmalendu Das (hereafter Nirmalendu), and its insurer (the opposite parties, in the proceedings before the tribunal), the application was contested only by the insurer. It obtained leave under Section 170 of the Act to raise all points in defence available to it in law.

5. In all, four witnesses were produced by the claimant, including herself (PW-1), to support the case pleaded in the claim application. On behalf of the insurer, its legal manager entered the witness box to depose.

6. Having considered the oral and documentary evidence adduced by the witnesses, the tribunal rendered its award on December 21, 2017. A finding was returned that the victim suffered multiple injuries because of rash and negligent driving of the said bike, which caused the accident. The said bike having been covered by an insurance policy issued by the opposite party no.2 before it (hereafter the insurer), the tribunal fastened the insurer with the liability of bearing the burden of compensation payable to the claimant. The tribunal thereafter proceeded to compute compensation in a total sum of Rs.3,22,477/- under different heads and directed payment thereof with interest @ 9% per annum from date of filing of the claim application till its realization, within a month from the date of receipt of the copy of the award, failing which the insurer would be liable to pay further interest @ 9% per month from the date of the award till its realization.

7. It is this award that it is under challe