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IN THE HIGH COURT OF TRIPURA AGARTALA
S.G. CHATTOPADHYAY, J.
United India Insurance Company Ltd. - Appellant
Versus
Abul Kashem, S/o. Sri Manjur Ali & Ors. - Respondents
MAC App. No. 88 of 2019
Decided On : 06-08-2021
Indian Penal Code 1860 - Section 279, 338 - Moto Vehicles Act, 1988 - Section 173(1), 166 - Rash driving - Causing grievous hurt by act endangering life - Appeals - Application for compensation - Claimant respondent boarded the offending vehicle As a result of reckless driving of the vehicle at a very high speed, the vehicle capsized on the road. As a result, the claimant received multiple fracture injuries in his left hand and he was admitted in Hospital. Stating these facts, Respondents father lodged a written FIR with the Officer-in-Charge of Police Station based on which Sections 279 and 338 IPC was registered and investigation of the case was taken up by police - Assessment of compensation is wholly erroneous because assessment of income of claimant is entirely based on guess work. claimant was not at all entitled to any compensation arising out of his use of offending vehicle since he was a gratuitous passenger in said vehicle - Appeal for setting aside impugned award of the Tribunal.
Findings of the Court : It is not denied that claimant is a day labourer by occupation. Almost a year after accident he appeared before the District Disability Medical Board. Dr. Dipti Bikash Roy, after his examination opined that he was having 40% locomotor disability. His statement that functional disability of the claimant extended to 30% is not acceptable in view of decision of this Court. Locomotor disability of a day labourer is likely to have a serious affect on his occupation. In all likelihood such disability would reduce his capacity to work as a day labourer. Therefore, under no circumstances his functional disability can be reduced to 30% in such case - Tribunal seems to have given no compensation to claimant towards future prospect. Claimant is admittedly 24 years old - Disability suffered by him from the said accident will no doubt deprive him of future prospect - Court is not powerless to grant compensation to claimant more than amount claimed by him after taking into consideration loss actually suffered by him from accident - Monthly income generated from such deposit may be spent by the claimant for his day to day expenses. Rest 50% of award shall be released.
Result : Appeal Dismissed.
[28000026000013]: With regard to determination of functional disability, this High Court in case of Samir Ch. Das Vs. Md. Jamal Hossain & Anr. in MAC App. No. 3 of 2019 has succinctly held that conversion of physical disability into functional disability is not a task of medical board. Such assessment should be made by the concerned Claims Tribunal. Observation of this Court in this regard is as under : "11. However, any such assessment of conversion of physical disability into functional disability is the task to be performed by the Claims Tribunal and not the medical expert. The deposition of the doctor before the Tribunal had to be confined to his assessment of the locomotive disability sustained by the claimant on account of the injury. He ought not to have been asked to assess the level of functional disability. …………………………………………."
[28000026000014]: In the given case, it is not denied that claimant is a day labourer by occupation. Almost a year after the accident he appeared before the District Disability Medical Board. Dr. Dipti Bikash Roy, PW-2 after his examination opined that he was having 40% locomotor disability. His statement that functional disability of the claimant extended to 30% is not acceptable in view of the decision of this Court in Samir Ch. Das(supra). Locomotor disability of a day labourer is likely to have a serious affect on his occupation. In all likelihood such disability would reduce his capacity to work as a day labourer. Therefore, under no circumstances his functional disability can be reduced to 30% in such case.
JUDGMENT :
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 has been filed by the insurance company against the award dated 29.07.2019 passed by the Motor Accident Claims Tribunal, Sonamura in TS(MAC) 12 of 2014 awarding compensation of a sum of Rs.6,82,422/- along with 6% annual interest thereon to the claimant who developed 40% physical disability as a result of the road traffic accident on 10.05.2013 while he was travelling in the offending vehicle from Sonamura to Aralia Daodharani.
2. Facts of the case, in brief, are as under :
Claimant respondent Abul Kashem boarded the offending vehicle bearing registration No. TR-01-D-0582 at Tamsabari Chowmuhani, Sonamura for going to Aralia Daodharani on 10.5.2013. As a result of reckless driving of the vehicle at a very high speed, the vehicle capsized on the road. As a result, the claimant received multiple fracture injuries in his left hand and he was admitted in Sonamura Sub-Divisional Hospital from where he was first referred to Melaghar Hospital and from there to Tripura Medical College & Dr. B.R. Ambedkar Memorial Teaching Hospital at Hapania. Stating these facts, his father Manjir Ali lodged a written FIR with the Officer-in-Charge of Sonamura Police Station based on which Sonamura P.S. Case No.57 of 2013 under Sections 279 and 338 IPC was registered and investigation of the case was taken up by police.
3. After investigation, police submitted charge sheet No.74 of 2013 dated 29.07.2013 against accused driver Suleman Miah for having committed offence punishable under Sections 279 and 338 IPC.
4. Claimant submitted a claim petition in the Tribunal under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of a sum of Rs.15,00,000/- under various pecuniary and non-pecuniary heads with annual interest at the rate of 12%. The insurance company as well as the owner and driver of the offending vehicle were impleaded as respondents in the said claim petition who filed separate written objections. The owner denied his liability with regard to compensation since his vehicle was duly insured covering third party risk and the said policy was current on the date of occurrence. The insurance company on the other hand pleaded that payment of compensation would be subject to production of the original insurance policy certificate and relevant documents of the offending vehicle including a valid driving license of the driver who drove the said vehicle at the time of accident.
5. During trial, claimant adduced the evidence of himself and introduced as many as seven documents (Exbts.1 to 7) in support of his claim. Claimant also examined Dr. Dipti Bikash Roy who examined the claimant at the District Disability Medical Board as a locomotor specialist and issued his disability certificate (Exbt.-8). On the side of the respondent, owner of the offending vehicle was examined as OPW-1. During trial the Tribunal framed several issues and after evaluating evidence and hearing the counsel of the parties awarded a sum of Rs.6,82,422/- to the claimant along with 6% annual interest thereon observing as under:
15. The Insurance Company is to make the aforesaid amount of compensation to the claimant-petitioner within a period of 6(six) weeks from today. If the amount is not paid within the statutory period in that case the Insurance Company shall have to pay additional interest @ 9% per annum till realization of the amount. 70% of the amount of compensation with interest be deposited in a long term fixed deposit in the Nationalized Bank in the name of the claimant petitioner and the rest amount shall
Point of law : Compensation - Tribunal should adopt equitable principles and reasonable approach for determination of just compensation.
The assessment of future earning capacity must consider the nature of disability relative to the claimant's profession, not merely the percentage of physical disability.
The main legal point established in the judgment is the determination of just compensation for motor vehicle accident victims under the Motor Vehicles Act, 1988, considering income estimation, future....
In assessing compensation for personal injury under the Motor Vehicles Act, the Tribunal must consider the specific circumstances of the claimant, including age, disability, loss of amenities, and fu....
The main legal point established is that the assessment of disability and loss of earning capacity should consider the nature of the claimant's occupation, prevailing wage structures, and medical evi....
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