Lila Biswas vs Krishna Sukla Das And Anr.

[1] This appeal is filed by the original claimant challenging the award dated 22.01.2020 passed by the Motor Accident Claims Tribunal (MACT-1) West Tripura, Agartala in case Title Suit(MAC) 51 of 2017. Aggrieved appellant seeks enhancement of compensation by filing this appeal.

[2] The factual context of the case is as under:

Appellant Smt. Lila Biswas was travelling in auto rickshaw carrying registration no. TR-01-C-4213 on 02.03.2016.She boarded the auto rickshaw from near Subhash Park at Khowai at around 6 O'clock in the evening for going to her home at Ganki. When the vehicle reached near her home, she asked the driver to stop the vehicle. Accordingly the driver stopped the vehicle. But, before she got down completely, the vehicle started moving and dragged her to a distance of about 10 / 15 qubits. As a result of such rash and negligent conduct of the driver, she received fatal injury. From the spot, she was taken to Khowai District Hospital from where she was referred to Dr. B. R. Ambedkar Memorial Teaching Hospital, Hapania, Agartala where she had to undergo surgery. Her son Shri Malay Biswas lodged a written ejahar with the Officer in charge of Khowai police station at Khowai on 30.03.2016 and based on his FIR Khowai P.S. Case No.2016KHW050 under Sections 279 and 338 I.P.C. and Sections 183 and 184 of M.V. Act was registered.

[3] After investigation, police submitted charge sheet No.109 of 2016 dated 30.09.2016 under Sections 279 and 338 I.P.C. and Sections 183 and 184 of M.V. Act against accused Krishna Sukla Das, driver of the offending vehicle.

[4] Alleging that the accident occurred due to rash and negligent driving of the said driver of the vehicle, appellant filed claim petition under Section 166 of the MV Act, 1988 in the Tribunal claiming compensation of a total sum of Rs.25,60,000/- with interest. It was the case of the appellant that she had a business of manufacture and sale of readymade garments and from the said business she used to earn Rs.10,000/- per month. She further pleaded that due to the accident she lost her earning capacity and comfort of life for which the aforesaid claim was made by her.

[5] The accused driver -cum-owner of the offending vehicle as well as the insurance company were made parties as respondent Nos.1 and 2 respectively. Filing written objection, the accused owner admitted the accident and pleaded that in case the appellant is awarded compensation, the same shall be borne by the insurance company. He further pleaded that his vehicle was insured with the Oriental Insurance Company Ltd. Vide policy No.322793/31/2015/4043 and the said policy was alive on the date of accident.

[6] In its written objection, the Oriental Insurance Company pleaded that the insurance company would have no liability until it was proved that the accused driver had a valid driving license on the date of occurrence and his vehicle was insured and insurance policy was current on the date of accident and no policy condition was violated by the owner driver.

[7] The appellant led oral and documentary evidence before the tribunal. She examined herself as PW-1. Sri Dipti Bikash Roy, a doctor on the panel of District Disability Medical Board, Agartala was examined on her behalf as PW-2. The accused owner of the vehicle on the other hand was examined as OPW-1. No evidence, oral or documentary, was adduced on behalf of the insurer who is respondent No.2.

[8] In her examination in chief, PW-1 had stated before the Tribunal that the accident occurred due to rash and negligent driving of the accused driver in which she received serious injury. At that time, she had a monthly income of a sum of Rs.10,000/- from her business of readymade garments. As a result of the accident, she became physically incapable and lost her income. She, therefore, claimed compensation of Rs.25,60,000/-. She had taken into evidence copy of the FIR, her injury report, charge sheet, prescription and cash memos of medicines purchased by her, her medical certificate and disability certificate which were marked as Exhibits from Exhibit 1 to Exhibit 7. It was suggested on behalf of the insurance company to her during her cross-examination that the accident occurred due to her contributory negligence which was denied by her.

[9] Sri Dipti Bikash Roy, panel doctor of the Disability Medical Board of West Tripura stated in his examination in chief as PW-2 that he assessed the disability of the appellant at 40% temporary disability. According to the PW, there was no chance of improvement of the deformity suffered by the claimant in her left hand. The PW was, however, of the opinion that there was a chance of improvement of the condition of her left knee. According to the PW the appellant suffered from functional disability to the extent of 30%. He identified the disability certificate issued by the Board which was marked as Exhibit-7.

During cross examination by the Insurance Company the PW stated that there were chances of improvement of the functional disability. But there was no chance of full recovery of the appellant.

[10] As OPW-1, the accused owner of the offending vehicle produced the insurance policy which was marked as Exhibit A. He also produced the registration of his vehicle and his driving license which were marked as Exbt.-B and Exbt.-C respectively. There was no cross examination of the witness on behalf of the insurance company.

[11] The tribunal after considering the oral and documentary evidence on record arrived at the findings that the accident occurred due to negligent driving of the accused driver as a result of which the claimant suffered from physical disability to the extent of 40% due to stiffness of her left knee joint and deformity in her left hand. The tribunal held that on the date of occurrence, the insurance policy [Exbt. A] was current and the vehicle was also duly registered and the accused driver had a valid driving license. The tribunal then proceeded to quantify the compensation.

[12] Since the appellant could not prove any document supporting her monthly income of Rs.10,000/-, Tribunal assessed her daily income @Rs.200/- equivalent to the daily income of a day labourer and on that basis came to the conclusion that in absence of any other material her monthly income would be 6,000/- at the rate of Rs.200/- per day x 30 days. Since her date of birth was recorded in the disability certificate as on 10.03.1955 and there was no opposition from the side of the insurance company with regard to her said date of birth, Tribunal calculated her age as 60 years 11 months and 12 days and by applying the principles laid down in Sarala Verma vs. DTC reported in (2009)6 SCC 121 applied the multiplier of 7 for the age group of 61 to 65 years and held that in case of 100% disability, she would have been entitled to a total compensation of Rs.5,04,000(6000 x 12 x7). Since the appellant suffered from 15% functional disability, the Tribunal assessed her loss of income at 5,04,000/- X 15% = Rs.75,600/-. Thereafter, the following amounts were added to the said sum of Rs.75,600/-:

i) For Cost of medicines : Rs.98,591/-, ii)Guest House bill : Rs.19,320/-, iii) Cost of attendance : Rs.20,000/-, iv) Pain and sufferings : Rs.40,000/-, v) Loss of amenities :10,000/- and in aggregate a total sum of Rs.2,63,511 was awarded to the appellant as compensation which was rounded off to Rs.2,63,600/-

[13] Aggrieved by the said award of the Tribunal, the appellant has challenged the award by filing this appeal mainly on the ground that tribunal erroneously held that the appellant suffered from 15% disability whereas District Disability Medical Board vide their certificate dated 28/11/2018 [Exbt.7] assessed her disability at 40%. Further objection of the appellant is that her monthly income was assessed at Rs.200 per day which is ½ of the daily income of a day labourer, whereas the appellant had a settled business of readymade garments from where she used to earn Rs.10,000/- per month. Her third objection is that the tribunal did not award any amount under the head of future prospect.

[14] Counsel appearing for the appellant, therefore, urges the court to raise the amount of compensation as above.

[15] Counsel appearing for the insurance company on the other hand submits that the Tribunal has awarded a just and fair compensation to the appellant which does not call for any interference in appeal. It is contended by Mr.P.K.Debnath, learned counsel of the Insurance Company that the petitioner did not produce any documentary evidence supporting her claim of monthly income and therefore, the tribunal rightly assessed her income at Rs.200/- per day which is equivalent to the daily wages of a day labourer. According to Mr. Debnath, learned Advocate, representing the insurance company, there is no ground to enhance the amount of compensation awarded by the tribunal.

[16] With regard to disability suffered by the appellant from the said accident, it appears that the District Disability Medical Board of West Tripura vide Disability Certificate [Exbt.7] assessed her disability at 40%. PW-2, Dipti Biksah Roy, who was a panel doctor in the District Disability Medical Board was examined at the tribunal as PW-2. He deposed that he assessed the disability of the appellant at 40%. According to the PW her functional disability may be 30% with reference to her disability affecting the efficiency in her occupation.

[17] In the case of Samir Chandra Das vs. Md.Jamal Hossain in MAC App. No.3 of 2019, this court vide judgment dated 31.01.2020 succinctly held that conversion of physical disability into functional disability is not the task of the medical board. Such assessment would 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. To the Court's query he had sufficiently made it clear that the claimant could carry out light work but not heavy work."

[18] In the given context, the Tribunal relying on the oral evidence of PW-2 converted 40% disability to 15% functional disability and accordingly assessed the compensation. The view of the tribunal is not acceptable because the disability certificate [Exbt.7] clearly indicated that the appellant suffered from locomotor disability and her left leg was seriously affected and there was stiffness in the left knee joint with deformity of left hand. The panel doctor [PW-2] categorically opined that there was no chance of improvement in the deformity of her left hand. The tribunal assessed her daily income @Rs.200/- per day equivalent to the daily income of a day labourer. Assuming that the appellant was a day labourer, it would be quite difficult for a day labourer to pursue her occupation with such locomotor disability. Therefore, conversion of 40% disability to 15% functional disability by the tribunal was completely erroneous. Moreover, in the given case, the accident occurred on 02.03.2016 and as per statement of PW-2, the disability of the claimant was assessed by the Disability Medical Board on 28/11/2018 i.e. 2 and ½ years after the occurrence which means that even after 2 and ½ years of the accident the injury did not heal. Situated thus, the Tribunal should not have converted 40% disability to 15% functional disability for the purpose of assessment of the loss of her income. Assessment of her monthly income @Rs.200/- per day does not also stand to reason. The tribunal did not accept the contention of the appellant with regard to her monthly income from her business in readymade garments on the ground that she could not produce any documentary evidence in support of her contention. The tribunal then assessed her monthly income @Rs.200/- per day which according to the tribunal was equivalent to the daily wages of a day labourer and multiplying her daily income of Rs.200 by 30 days the Tribunal worked out her annual income at Rs.6000/-. This is not acceptable because daily wages of a day labourer would be less than Rs.400/-. However, considering that such wages is always negotiable and the appellant was of the age of 61 years, the amount may be reduced to Rs.300/- per day. Obviously she would not have got work on all days in a month. Considering that she would have worked for at least 23 days in average, her monthly income would come to Rs.300 x 23=6900/-. Then 40% thereof for the disability would make the future loss of her monthly income assessable at Rs.2760/- per month, or Rs.33,120/- per annum. Looking to the age of the appellant being about 61 years, there shall be no addition for future prospect in terms of the decision of the Apex Court in National Insurance Company Ltd. Vs. Pranay Sethey reported in (2017) 16 SCC680.Therefore, claim of the appellant for future prospect is not acceptable. In terms of the decision of the Apex Court in Sarala Verma and Ors vs. Delhi Transport Corporation and Anr reported in (2009) 6 SCC 121, multiplier of 7 will be applied in this case. The future loss of income of the appellant would, therefore, come to Rs.2,31,840/-(33,120 X 7). The remaining heads of compensation awarded by the claim tribunal are justified and they do not call for any interference. As a result the total compensation of the claimant is worked out as follows:

1

Loss of income

Rs.2,31,840/-

2.

Cost of Medicines

Rs.98,591/-

3.

Guest House bill

Rs.19,320/-

3.

Cost of attendants

Rs.20,000/-

4

For pain and sufferings

Rs.40,000/-

5.

Loss of amenities of life

Rs.10,000/-

Total Compensation = Rs.4,19,751/-rounded off as Rs.4,19,800/-

(Rupees Four Lakhs Nineteen thousand Eight Hundred)only.

[19] The additional compensation worked out by this court shall be paid by the insurance company with simple interest @7% per annum from the date of filing the claim petition till actual payment.

[20] The amount of compensation already paid by the insurance company in terms of the award of the Tribunal, if any, shall be deducted from the total amount of compensation of Rs.4,19,800/- and remaining amount would be paid to the appellant by depositing the same before the Tribunal within 6 weeks from today.

In terms of the above, the appeal is disposed of.

Pending application(s), if any, also stand disposed of.