Mahesh Mahato vs Rama Das And Ors

Heard Mr. BK Jain, learned counsel for the appellant and Mr. R.K. Bhatra, learned counsel for the respondent No. 3.

This appeal is filed by the claimant against the judgment and award dated 20/07/2012 passed byMACT No. 1, Kamrup, Guwahati in MAC Case

No. 1443/2006.

The claimant Mahesh Mahato sustained injury in a motor vehicle accident on 01/12/2005involving the vehicle bearing registration No. AS -01/J-

0701, owned by the respondent No. 2 and insured with the respondent No. 3.

The claimant filed an application before the MACT, Guwahati praying for compensation and thelearned tribunal by the impugned judgment

dismissed the claim petition.

Aggrieved, the claimant preferred the instant appeal.

Learned counsel for the appellant Mr. BK Jain submits that the claimant adduced ample evidenceto substantiate the claim. However, the learned

tribunal failed to appreciate the evidence brought on record and dismissed the claim petition holding, that there was discrepancies with regard to

registration number of the vehicle involved in the accident. Learned tribunal observed in the concluding para of the judgment as under :-

“From the evidence on record there is no doubt that the claimant sustained grievous injuries in a motor accident occurred on 01/12/2005 and had

spent a considerable amount for his treatment. Since it is not possible to came to a definite finding regarding involvement of the vehicle in the accident,

the Insurance Co. cannot be saddled with the responsibility to pay any compensation. For the same reason the owner also cannot be held liable which

leaves me with no option, but to dismiss the claim petition, which I accordingly do.â€​

From the above observation of the learned tribunal, it is abundantly clear that the factum of theaccident, having taken place on 01/12/2005 and the

claimant, having sustained grievous injuries in such accident involving the motor vehicle, was not in dispute. The claimant examining himself as PW 1

deposed, that the vehicle bearing registration No. AS-01/K-0701 (Vespa scooter) was the vehicle involved in the accident. However, in his cross-

examination he stated that the vehicle No. was AS01/F-7313. The claimant also proved the accident information report Ex. 1, wherein also the vehicle

number was mentioned as AS 01/F-7313. Because of the above anomalies with regard to the number of the vehicle involved in the accident case, the

claimant examined PW 3, who proved the original GD Entry relating to the accident as Ex. 16 being the G.D. Entry No. 30 & 31 dt. 01/12/05.

PW 3 the police officer, who was examined to proved the GD Entry stated that he had brought the original General Diary and also the copy

thereof and as per the GD Entry, vehicle involved was AS01/K-0701. During cross examination he failed to explain how a different vehicle number

was mentioned in the accident information report Ex. 1. There is no material on record to show that the accident information report was prepared by

the PW 3. Ex. 16 shows that the GD Entry No. 30 dated 01/12/2005 was recorded at 10.30 at night, wherein it was mentioned that the police Naka

party informed about an accident and accordingly one ASI Mr. JK Borah was entrusted to make preliminary enquiry. At about 11.20, at night, GD

Entry No. 31 dated 01/12/2005 was given and as per the said GD Entry, it was recorded that ASI J.K. Borah arrived at the police station along with

Vespa Scooter No. AS-01/K-0701, which was involved in the accident that took place at Maligaon. It was also mentioned in the GD Entry No. 31 that

the rider of the vehicle No. AS-01/K-0701, while coming from Adabari side riding the said motorcycle, hit the pedestrian Mahesh Mahato (claimant).

From the evidence of PW 3 and the entry made in the general diary (GD) immediately after the occurrence, makes it abundantly clear, that the

vehicle bearing registration number AS-01/K-0701 was involved in the accident in the instant case and the same was driven by one Faziruddin

Choudhury.

One should bear in mind that the accident information report is not an original document. It isprepared by the police on the basis of the information

available in the record of the police station, and as such, even if some error or mistake cropped up in the accident information report in mentioning the

vehicle number, giving rise to some doubt in the mind of the tribunal, the evidence of the PW 3 and also the original G.D. Entry No. 30 & 31 dt.

01/12/05 was sufficient to dispel such doubt and to establish that the vehicle No. AS-01/K-0701 was involved in the instant case. In view of above

evidence, the findings of the learned tribunal that because of inadequacy of evidence, learned tribunal was incapable of arriving at a decision as to

which vehicle was involved, does not appear to be sound.

Apparently the factum of accident was not in dispute and the GD Entry (Ex. 16) clearlyestablished that the vehicle No. AS-01/K-0701 was

involved in the accident as a result of which, the claimant sustained grievous injuries. Therefore, the impugned order dismissing the claim on the

ground, that there was doubt about the identity of the vehicle is totally unsustainable and deserves to be set aside and accordingly I do so.

At this juncture, the learned counsel for the appellant submits that the accident occurred in theyear 2005, and after long 13 years, if the matter is

remanded back to the learned tribunal, there is every likelihood the matter getting delayed and therefore urged this Court to determine the

compensation on the basis of evidence and materials available on record.

Considering the delay already caused depriving the claimant from just and reasonablecompensation, the submission made by Mr. BK Jain appears

to be preponderous and therefore, I proposed to determine the compensation on the basis of the evidence and materials available on record.

The claimant stated in his evidence that he had incurred expenses of Rs. 80,000/- for treatmentand he was in hospital for eight days. It is also

stated that he sustained fracture injury and could not resume his routine duty for five months, as he was in bed rest as per the advice of the doctor.

The documentary evidence adduced by the claimant, shows, that he had incurred expenses of Rs. 20,080/for treatment. It is submitted by Mr. BK Jain

that the claimant being an illiterate person he could not preserve all the documents and as such failed to produce all those documents. Further

contention of the learned counsel is that the claimant also spent some amount for physiotherapy and he had to undergo further hospitalization for

removal of the implants. The claimant in his evidence stated that he spent Rs. 12,000/- as fees for the physiotherapy for two months. However, no

documentary evidence has been adduced as regards the payment of Rs.12,000/- for physiotherapy. Be that as it may, the undisputed medical evidence

shows, that the claimant sustained fracture injury and interlocking and nailing was done, and such nailing are required to be removed as per advice of

the doctor. Though no documentary evidence could be adduced showing the exact expenses for future treatment, considering the nature of the injury

and the implants, it is not difficult to comprehend that claimant will have to incur some expenses for removing those implants. Since no document was

produced showing the exact expenses to be incurred by the claimant, this Court is inclined to award Rs. 10,000/- for future treatment including

removal of nailing. Evidently the claimant could not resume his work for five months and as such, he will also be entitled to loss of earning for the said

period. The claimant shall also be entitled to some amount on account of non-pecuniary damages for pain and suffering.

The claimant stated in his evidence, that his earning before the accident was Rs. 6,500/-, but noplausible evidence could be adduced. However, it

is apparent from his evidence, that he was working as a Chowkidar. Having regard to the occupation of the claimant and the point of time, when the

accident occurred, his loss of earning can be assumed as Rs. 4,000/- per month. Accordingly the just and reasonable compensation, to which the

claimant is entitled, is re-assessed as under :-

Medical Expenses                        = Rs. 20,080/-

Loss of earning during treatment  = Rs. 20,000/-   (Rs. 4000/- x 5)

Pain and suffering                       = Rs. 20,000/-

Future treatment                         = Rs. 10,000/-

                                              ___________Â

                                                Total = 70,000/-

The respondent no. 3, New India Assurance Co. Ltd. shall satisfy the above award by depositing the same with the tribunal with interest @ 9%

from the date of filing of the claim petition.

Send back the LCR.Â