Cholamandalam M S General Insurance Co. Ltd. vs Md. Tacharuf Ali Barbhuiya & Ors.

Heard Mr. K. K. Bhatta, the learned counsel for the appellant. Also heard Mr. M. Talukdar, the learned counsel for the respondent/ claimant.

This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant, namely Cholamandolam MS General Insurance Company Ltd, impugning the judgment and award dated 19-01-2020, passed by the Motor Accident Claims Tribunal, Cachar, Silchar, in MAC Case No.1286/ 2014, whereby the present appellant was directed to pay a compensation amount of Rs.14,39,256/- along with an interest @ 7% per annum from the date of filing of the claim petition till realisation.

The facts relevant for consideration of the instant appeal, in brief, are that on 07-04-2014, the claimant was walking by the side of the road at Damcherra at about 8 pm. At that time, one tripper truck bearing Registration No. AS-11AC-9767, which was proceeding from Dalu side towards Haflong, loaded with sand and driven in a rash and negligent manner, got capsized and fell on the claimant. As a result of which, the claimant sustained serious injury on his person and was immediately shifted to Borkhola PHC for treatment. From there, he was shifted to SM Dev Civil Hospital, Silchar for better treatment and from there, he was further referred to Silchar Medical College Hospital. The claimant was treated at Silchar Medical College and Hospital as an indoor patient from 07.04.2014 till 16.05.2014. As a result of the injuries sustained by him in the accident, he became permanently disabled to the extent of 50%.

Thereafter, the claimant, namely, Md. Tacharuf Ali Barbhuiya @ Tasaraf Ali Borbhuiya @ Taforul Ali @ Tasar Ali approached the Motor Accident Claims Tribunal, Cachar by filing an application under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries sustained by him in the aforementioned motor vehicular accident. The claim case was registered as Motor Accident Claim Case No. 1286/2014.

The present appellant contested the claim of the claimant by filing written statement before the claim tribunal. On the basis of the pleading of the parties, the Motor Accident Claims Tribunal formulated the following issues:

In support of his claim, the claimant adduced evidence of three witnesses including himself as PW1 and two medical officers as PW2 and PW3. The claimant also exhibited 17 documents, which were exhibited as Ext. 1 to Ext. 17. The Insurance Company did not adduce any evidence to counter the claim of the claimant. Ultimately, by the judgment and award, which has been impugned in this appeal, the claim petition filed by the claimant was allowed and the appellant was directed to pay the compensation to the claimant in the manner as described in the foregoing paragraphs of this judgment.

Mr. K.K. Bhatta, the learned counsel for the appellant has submitted that the Motor Accident Claims Tribunal, Cachar has erred in awarding the compensation amount of Rs. 14,39,256/- along with an interest @ 7% to the claimant without taking into consideration the evidence on records.He submits that the compensation awarded by the claims tribunal to the claimant is on the higher side.

The learned counsel for the appellant has submitted that the claims tribunal had erred in assessing the monthly income of the deceased at Rs. 6,000/- without there being any reliable material in support of said fact. He submits that though the claimant has exhibited income certificate issued by the Gaon Panchayat as Ext. 10, however, the Tribunal has correctly not relied upon the same as the Gaon Panchayat is not the proper authority to issue income certificate. He further submits that the Tribunal has erred in relying upon Ext. 11, which is the income certificate issued by the Circle Officer in as much as the said certificate was issued on 12.12.2017, whereas, the accident occurred on 07.04.2014. He submits that in the Ext. 11, there is no mention that the claimant was earning Rs. 6,000/- per month in the year 2014, rather, it indicates that he has an annual income of Rs. 72000/- in the year 2017, which indicates that he has not suffered any loss of earning. He therefore submits that the trial court has erred in relying the Ext. 11 to come to a conclusion regarding income of the claimant at the time when he met with the accident. The learned counsel for the appellant has further submitted that the Motor Accident Claims Tribunal failed to take into consideration that in absence of any cogent proof regarding the income of the claimant, who was a labourer in the year 2014, same ought to have been assessed in pursuant to the notification of the Government of Assam prescribing the minimum wages for unskilled person, which was Rs. 116 per day in the year 2013-2014.

The learned counsel for the claimant further submits that the Tribunal also erred in treating the functional disability of the claimant to the extent of 50% on the basis of disability certificate, which was issued by only two doctors, whereas as per the guideline of the Ministry of Social Justice and Empowerment, the disability certificate has to be issued by a Medical Board comprising with three doctors.

He further submits that the Tribunal also erred in awarding Rs. 1,50,000/- Rs. 1,00,000/- and Rs. 1,00,000/- respectively under the heads of pain and suffering, loss of amenities of life and loss of expectation of life respectively andwhen functional disability of the claimant was assessed at 50%, there remains no requirement for awarding compensation against the head loss of amenities of life and loss of expectation of life and against pain and suffering as same may amount to awarding double compensation under the same head. He therefore, submits that the compensation awarded to the claimant by the impugned judgment may be re-calculated and by correctly assessing the income of the claimant as well as by correctly assessing functional disability, the just compensation may be awarded to him.

On the other hand, Mr. M Talukdar, the learned counsel for the claimant has submitted that there is no infirmity or illegality in the impugned judgment except the fact that the compensation awarded to the claimant is on lower side.

The learned counsel for the claimant has further submitted that the Tribunal has correctly assessed the income of the claimant at Rs. 6,000/- per month on the basis of the Ext. 11, which is the income certificate issued by the Circle Officer. He submits that since the claimant was suffering from 50% functional disability, he could not have earned the said amount in the year 2017 and therefore, the date of issuance of income certificate may be regarded as inadvertent typographical mistake on the part of the issuing authority.

He submits that the Tribunal has rightly relied upon the disability certificate (Ext. 9) in assessing the permanent disability of the claimant. He submits that the Tribunal has relied upon the said Exhibit in pursuant of Government of Assam Notification No. HLA729/98/2013 dated 01.02.2013, whereby even one specialist Doctor working in a Government Hospital was authorised to issue a disability certificate. He submits that the Tribunal was also right in assessing functional disability of the claimant at 50% considering the nature of permanent disability suffered by the claimant. He further submits that the Tribunal was also right in awarding Rs. 1,50,000/- towards damages for pain and suffering, Rs. 1,00,000/- for loss of amenities of life and Rs. 1,00,000/- for loss of expectation of life as the Apex Court has also, in the case of “Laxman vs. Divisional Manager, Oriental Insurance Company Ltd.” reported in (2011) 10 SCC 756has directed payment of compensation under the aforesaid heads under similar circumstances.

He further submits that the Tribunal has erred in assessing the quantum of compensation on a lower side without awarding any amount against expenses, which is likely to be incurred by the claimant in his future treatment. He submits that though the claimant has not filed any cross objection in this appeal, however, as it is the duty of the court to award just compensation to the claimant, there is no bar in enhancing the quantum of compensation so as to make it just even if no appeal or cross objection has been filed by the claimant. In support of his contention, the learned counsel for the claimant has cited following rulings:

ii) Rajkumar vs Ajay Kumar and Anr reported in (2011) 1 SCC 343.

iii) Oriental Insurance Company Ltd. vs Pekhan Bala Das and Ors. reported in (2014) 2 GLT 855.

I have considered the submissions made by the learned counsel for both sides and have gone through the material available on record. I have also gone through the rulings cited by the learned counsel for both sides in support of their respective submissions.

The point to be determined in this appeal is to whether the Motor Accident Claims Tribunal has correctly assessed the compensation payable to the claimant on account of the injuries sustained by him in the aforementioned accident.

One of the main contentions of the appellant/ Insurance Company is that the Tribunal has wrongly assessed the monthly income of the deceased at Rs. 6,000/- per month without there being any reliable material on record to substantiate the same. It appears that the Tribunal has relied on Ext. 11, which is the income certificate issued by the Circle Officer, Cachar, Silchar. It appears that the said certificate was issued on 12.12.2017. Hence, same cannot be the basis of income of the claimant in the year 2014 when the accident, in which the claimant sustained injuries occurred. However, on perusal of the impugned judgment, it also appears that the Tribunal after considering the fact that being daily labourer the claimant was able to earn Rs. 200/- per month and as such his monthly income may be assessed at Rs. 6,000/-. This reasoning of the Tribunal in assessing the monthly income of the claimant may not be faulted with, more so, because the Insurance Company did not adduce any counter evidence to suggest that the income of the claimant may be lesser than what has been assessed by the Tribunal.

The next contention of the learned counsel for the appellant that the Tribunal was wrong in assessing the permanent disability suffered by the claimant on the basis of Ext. 9, which is disability certificate issued by the Silchar Medical College and Hospital on the ground that same was not issued by a Board of three doctors, also does not have much force, in as much as, the Tribunal relied upon the Government Notification No. HLA.729/98/2013 dated 01.02.2013, which empowers one specialist doctor working in a Government hospital to issue disability certificate. In the instant case, the disability certificate was issued by Dr. AK Sipani, who was working as a Professor of Orthopaedics in Silchar Medical College, hence, under the aforesaid Government Notification, he is authorised to issue disability certificate. Moreover, the assessment of functional disability of 50% by the Tribunal may not be faulted with, as it came to the said finding after considering the 50% permanent physical disability of the left lower limb sustained by the claimant. The Tribunal also took into consideration the fact that being a daily labourer, the claimant requires full physical involvement and as such the functional disability cannot be less than the percentage of permanent disability of the claimant. This reasoning by the Tribunal cannot be regarded as a perverse reasoning justifying any interference by this court.

As regards, the contention of the learned counsel for the appellant that Ext. 11 indicates that the claimant was earning an income of Rs. 72000/- per year in the year 2017, hence, there was no loss of earning capacity, it appears that the claimant, in his evidence on affidavit has categorically stated that he used to earn Rs. 6,000/- per month before the accident, however, due to his permanent disability, he is unable to earn and has become dependant on others. This testimony of the PW1 could not be demolished by the Insurance Company during his cross-examination. Hence, this court is of the considered opinion that merely because of the fact that the Ext. 11 was issued in the year 2017, it may not be a conclusive proof to indicate that the claimant did not suffer from any loss of earning due to the injury sustained by him in the aforesaid accident.

As regards the fact of the Tribunal awarding Rs. 1,50,000/- towards damages for pain and suffering, Rs. 1,00,000/- for loss of amenities of life and Rs. 1,00,000/- for loss of expectation of life is concerned, this court does not find any ground of interference with the same as it appears to be in conformity with the approach of the Apex Court in awarding compensation under similar circumstances. For the sake of convenience, the observation made by the Apex Court in the case of Laxman vs. Divisional Manager, Oriental Insurance Company Ltd. (supra) is quoted herein below:

Thus, this court is of the considered opinion that the compensation awarded by the Tribunal to the claimant for the injuries sustained by him in the above-mentioned motor vehicular accident may be regarded as a just compensation warranting no interference by this court in the impugned judgment, in this appeal.

In view of the discussion made and reason stated in the forgoing paragraph of this judgment, this appeal is hereby dismissed.

The appellate / Insurance Company shall deposit the outstanding due against the compensation awarded to the claimant by the Motor Accident Claims Tribunal in the impugned judgment within a period of four weeks from the date of this judgment. On such deposit being made, same shall be disbursed to the claimant after proper verification.

Send back the records of MAC Case No. 1286/2014 to the concerned Tribunal along with the copy of this judgment.