IMPORTANT POINT
The court modified the compensation awarded by the Tribunal due to miscalculation of disability and future prospects, establishing the correct loss of earning capacity as 60%.

JUDGMENT :

KARDAK ETE, J.

1. Heard Mr. S.K. Goswami, learned counsel for the appellant. Also heard Ms. B. Devi, learned counsel for the respondent no. 1/claimant. None appears for the respondent nos.2 and 3, despite service of notice.

2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as MV Act, 1988 in short) is directed against the judgment and award dated 29.03.2017 passed by the learned Member, Motor Accident claims Tribunal, Biswanath Chariali, Sonitpur, in MAC Case No. 165/2012

3. The case, in nutshell, is that on 05.09.2011, the respondent no. 1/claimant, while he was returning from Sadharu Paneri Tea Factory with tea leaves as the handyman of the Bolero Pickup Van bearing Registration No. AS-12E-3520 seated in the cabin of the said vehicle and reached near Bulbul Tea Estate, it skidded off the road and fell down on the road side of NH-52. As a result of the said accident, the respondent No. 1/claimant sustained grievous injury on his right elbow joint. The right hand had to be amputated below the elbow joint thereby causing permanent disability.

4. The respondent no. 1/claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand) only as compensation for the injuries sustained by him, which was registered as MAC Case No. 165/2012 before the learned member, Motor Accident Claims Tribunal, Biswanath Chariali, Sonitpur. The appellant has contested the case by filing written statement however, the respondent nos. 2 and 3 (owner and driver of the offending Bolero Pickup Van) did not contest the claim.

5. Upon pleadings of the parties, three issues were framed as under:

(i) As to whether the alleged accident occurred due to rash and negligent driving of the driver of the vehicle?

(ii) Whether the claimant is entitled to get any compensation, if so, to what extent and from whom?

(iii) To what other relief/reliefs, the claimant is entitled to in law and equity?

6. The respondent no. 1/claimant had adduced evidence on affidavit as PW-1. However, the appellant did not examine any witness.

7. The respondent no. 1/claimant as PW-1 had deposed that while he was returning from Sadharu Paneri Tea factory, with bought tea leaves by the offending vehicle (who is handyman of the offending vehicle) bearing registration No. AS-12E-3520 sitting in the cabin of the vehicle and while the offending vehicle reached near Bulbul T.E., skidded off the road and fell down on the roadside of NH-52 and as a result the claimant sustained injury on the right elbow joint, who had to ampute his right hand causing permanent disability. PW-1, in support of his case exhibited accident information report as Ext.1, Discharge-Certificates as Ext.2 & 3, Money receipts Hospital bill as Ext.4 & 5, Money receipts amounting to Rs.1,050/- as Ext.6, X-ray Report as Ext-7 and disability certificate as Ext.8.

8. It reveals from Ext.1 i.e. the accident information report that O/C, Behali Police station, mentioned clearly that the accident took place on 05-09-2011 at 8:20 p.m. near BulBul T.E. and the vehicle involved in the accident was Bolero Pick Up bearing registration No. AS-12-E-3520. The name of the owner of the aforesaid vehicle is also mentioned as Sri Surya Bh. Chetry and the said vehicle was duly insured with The Oriental Insurance Company Ltd. i.e. O.P. No. 3 vide policy No. 321202/31/2011/3774 valid up to 15-03-12. The O.P. No. 3/appellant, the Oriental Insurance Company Ltd. contested the case by filing Written Statement but failed to examine any witness to prove the contrary.

9. In view of the above, it is seen that the accident which took place on 05-09-2011, resulting amputation at the elbow joint of the right side arm of the claimant and was due to rash and negligent driving of the driver of the offending vehicle bearing registration No. AS-12-E-3520.

10. The learned Tribunal has also recorded that the accident occurred due to