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Judgment
I have heard Mr. A.R. Agarwalla, learned counsel appearing for the 3 (three) appellants and Mr. B. K. Purkayastha, learned counsel appearing for respondent no. 1, in all these three appeals.
These three appeals, preferred under Section 173 of the Motor Vehicles Act, 1988, as amended (the Act, in short), are directed against the common judgment and award dated 10.06.2013 passed in three claim applications viz. MAC Case No. 333/2004, MAC Case No. 334/2004 & MAC Case No. 335/2004 by the learned Member, Motor Accident Claims Tribunal, Goalpara (the Claims Tribunal, in short).
As all these appeals have arisen out of one particular accident involving one particular vehicle and out of a common judgment and award, they are, on the prayer of the learned counsels appearing for the parties, taken up together for hearing. All the three appeals have been preferred by the appellants-claimants seeking enhancement of the compensation amounts awarded by the Claims Tribunal for the injuries sustained by each of the appellants-claimants.
Before considering the matter of compensation, as contended by the learned counsel for the appellants, a brief narration of the relevant and pertinent facts appears to be necessary. All the appellants-claimants are members from the same family. The appellant-claimant, Md. Selim Manchuri in the claim application, MAC Case No. 333/2004, is the head of the family. The appellant-claimant, Smti. Khairul Begum @ Khairun Begum in the claim application, MAC Case No. 334/2004, is the wife of Md. Selim Manchuri and the claimant-appellant, Md. Rousam Alom in the claim application, MAC Case No. 335/2004, is the son of Md. Selim Manchuri and Smti. Khairul Begum @ Khairun Begum.
On 24.02.2001, all three of them boarded a bus bearing registration No. AS-15/3796 (the subject-vehicle, in short) at Guwahati for going to Dhupdhara. While they were proceeding as passengers in the subject-vehicle, it met with an accident near Chandika Gate on the National Highway 37 under Chhaygaon Police Station at about 7-00 p.m. All the three claimants stated to have sustained serious injuries in the said accident and they contended that the accident had occurred due to act of rash and negligent driving on the part of the driver of the subject-vehicle as he failed to control the speed of the subject-vehicle on finding a cow crossing the Highway and as a result, the subject-vehicle turned turtle. It was further stated that in the said accident, one passenger of the subject-vehicle lost his life. In connection with the said accident, a General Diary Entry bearing Chhaygaon Police Station G.D. Entry No. 485 dated 24.02.2001 was recorded. Later on, a Police case being Chhaygaon Police Station Case No. 25/2001 under Sections 279/337/338/427/304A, Indian Penal Code was registered in connection with the said accident against the driver of the subject-vehicle as the accused.
Claiming compensation for each of them, the above three claim applications were filed by the claimants under Section 166 of the Act before the Claims Tribunal wherein the insurer, the owner and the driver of the subject-vehicle were impleaded as opposite party no. 1, opposite party no. 2 and opposite party no. 3 respectively. On institution of the claim applications, the Claims Tribunal issued notices to the opposite parties. On appearance, the insurer of the subject-vehicle as opposite party no. 1, filed their written statements in each of the cases opposing the prayers for compensation taking similar pleas. It was contended that the compensation amounts claimed by the claimants were excessive and without any legal and material basis. The other two opposite parties i.e. the owner and the driver, did not contest the proceedings and orders were passed to proceed ex-parte against them. On the basis of the pleadings of the parties, issues were framed by the Claims Tribunal and thereafter, common witnesses were examined in all the three claim applications.
On appreciation of the evidence led before it, the Claims Tribunal had held that there was no dispute to the fact that the subject-vehicle was insured with the opposite party no. 1 therein, the respondent no. 1 herein, by a policy of insurance bearing No. 71966 valid up to 13.03.2001 and the driver of the subject-vehicle possessed a valid driving license bearing No. 159/GLP with validity up to 05.04.2002. The Claims Tribunal had also arrived at the finding that in connection with the accident, Chhaygaon Police registered a case being Chhaygaon Police Station Case No. 25/2001 under Sections 279/337/338/427/304(A), Indian Panel Code. The Claims Tribunal had further held that on 24.02.2001, at about 07-00 p.m., the subject-vehicle met with the accident at the place, mentioned above, and in the said accident, the claimants had sustained injuries. The accident had happened due to rash and negligent on the part of the driver of the subject-vehicle. As these findings of fact were not disputed by any of the parties at the later stage and these appeals have been preferred seeking only enchantment of the amounts of compensation granted by the Claims Tribunal, no further dilation of other facts appears to be necessary for the purpose of deciding this appeals.
In MAC Case No. 333/2004, the Claims Tribunal had awarded an amount of Rs. 2,95,826/- as compensation. An amount of Rs. 1,41,958/- was awarded as compensation in MAC Case No. 334/2004. In MAC Case No. 335/2004, an amount of Rs. 30,121/- was awarded by the Claims Tribunal as compensation. Seeking enhancement of these amounts of compensation, these three appeals have been preferred.
MAC Appeal No. 246/2015 (arising out of MAC Case No. 333/2004)
The appeal, MAC Appeal No. 246/2015, has been preferred against the judgment and award passed in MAC Case No. 333/2004. In the claim application, MAC Case No. 333/2004, the claimant, Md. Selim Manchuri claimed that he suffered fracture of left hand, head injury and other cut and lacerated injuries all over his body which made him permanently disabled. An amount of Rs. 3,50,000/- was sought as compensation. He as P.W.1, deposed that he owned a quilt shop at Dhupdhara main bazaar and he used to reside there with his family. He further deposed that as a result of the injuries sustained on his person in the accident, he had become permanently disabled and he had not been able to pursue his profession. He exhibited a number of documents including one certificate issued by the District Standing Medical Board, Goalpara (the Board, in short) as Ext.-4. P.W.2, Dr. S. Rahman, who was one of the members of the Board, stated, in his evidence, that the claimant attended the Board and he was examined in presence of the other members of the Board. It was found that the appellant-claimant suffered soft tissue injuries over left shoulder and healed up with stiffness and restricted movement of left shoulder joint. P.W.2 further stated that upon examination of the claimant, the Board concluded that his permanent disability was to the extent of 35% and, accordingly, the Board issued the Ext.-4 certificate. The appellant-claimant stated that an amount of about Rs. 30,000/- had to be spent by him for his own medical treatment. He further deposed that he earlier used to earn Rs. 6,000/- per month but because of his disability, he could not earn anything thereafter.
The Claims Tribunal, on the basis of the above evidence on record, had held that the claimant was permanently disabled and stiffness and restricted movement of his left shoulder joint must have an adverse effect on his profession as a quilt-maker as quilt making required use of both hands. As a result, the profession of quilt making of the claimant must have suffered and the Claims Tribunal deemed it proper to assess the extent of loss of earning capacity as 30%. The Claims Tribunal, accepted Rs. 6,000/- as his monthly income and Rs. 72,000/- as his annual income, as claimed by the claimant. Applying a multiplier of 13 and taking his age as 50 years, the Claims Tribunal had assessed his loss of earning at Rs. 2,80,800/-(= Rs. 72,000/- X 13 X 30%). A sum of Rs. 10,000/- was assessed under the head of pain and agony. The claimant had submitted bill/voucher, marked as Ext.-5, only for a sum of Rs. 26/-. An amount of Rs. 5,000/- was given as the cost of litigation. Accordingly, the Claims Tribunal had awarded a total amount of compensation of Rs. 2,95,826/- (=Rs. 2,80,800/-+ Rs.26/-+ Rs.10,000/- + Rs. 5,000/-) to the claimant in MAC Case No. 333/2004.
The appellant-claimant has a shop of quilts at Dhupdhara main bazaar. Apart from being the owner of the shop, he deposed that his profession was to make quilts. The Claims Tribunal had come to a finding that in view of the appellant-claimant's physical disablement to the extent of 35%, his loss of earning capacity was decreased by 30%, for the reasons indicated above. The physical disability pertaining to left hand of the appellant-claimant must have reduced his efficiency in so far as quilt making is concerned and consequently, his earning from that part of his monthly income which used to come from his quilt making. The physical disability has not impacted that part of his monthly income which is relatable with the ownership of the shop dealing in quilts. In such view of the matter, the Claims Tribunal had made a realistic assessment of the entire fact situation obtaining in the case and, thus, no departure is required to be made from such view which is reasonable and realistic. The sum of Rs. 10,000/- assessed under the pain and agony appears to be on the lower side, considering the extent of physical disability of 35% sustained by the appellant-claimant, as assessed by the Board and recorded in Ext.- 4, which will have continuous effect. Thus, it is deemed appropriate that an amount of Rs. 50,000/- under the head of pain and agony will be a just and reasonable amount. Accordingly, the amount of total compensation will be increased by Rs. 40,000/- (=Rs.50,000/- - Rs.10,000/-). It transpires from records that after the award, the respondent no. 1-insurer had deposited an amount of Rs. 3,40,954/- before the Claims Tribunal towards compliance of the award dated 10.06.2013 with interest. It further transpires that the said amount of Rs.3,40,954/-was disbursed in favour of the appellant-claimant on 12.09.2014. As the amounts granted by the Claims Tribunal on the other heads are not disturbed and have been maintained, the respondent no. 1 is directed to pay the enhanced amount of Rs. 40,000/- along with interest @ 8% per annum from 16.07.2011 till the date of payment. The said amount shall be deposited by the respondent no. 1 before the Registry of this court within a period of 3 (three) months from today and on such deposit being made, the Registry shall disburse the same to the appellant-claimant in MAC Appeal No. 246/2015 (MAC Case No. 333/2004) on his due identification by his learned engaged counsel.
MAC Appeal No. 249/2015 (arising out of MAC Case No. 334/2004)
The appeal, MAC Appeal No. 249/2015, has been preferred against the judgment and award passed in MAC Case No. 334/2004. In the claim application, MAC Case No. 334/2004, the claimant, Smti. Khairul Begum @ Khairun Begum claimed that she suffered lacerated injury with scar formation on face resulting into disfigurement and head injuries with post traumatic headache. She also claimed that she had become permanently disabled. Claiming herself as a business woman by profession, she mentioned that she used to earn Rs. 5,000/- per month from her business. An amount of Rs. 8,00,000/- was sought as compensation. Deposing as a witness, she exhibited a number of documents in connection with her medical treatment, as Ext.-6 to Ext.-11, including one certificate issued by the District Standing Medical Board, Goalpara (the Board, in short) as Ext.-10. She stated that an amount of Rs. 50,000/- was spent in respect of her medical treatment and for her medical treatment, she stayed for a few days in the Gauhati Medical College & Hospital (GMCH). After being released from the GMCH, she continued her treatment under Dr. S. Rahman. She asserted that she used to help her husband in his business and was about 40 years of age at the time of the accident. Dr. S. Rahman, who was one of the members of the Board, stated, in his evidence, that the claimant attended the Board and she was examined in presence of the other members of the Board. It was found that the appellant-claimant suffered multiple lacerated injuries with scar formation on face producing disfigurement and head injuries with post traumatic headache following road traffic accident. P.W.2 further stated that upon examination of the claimant, the Board concluded that her permanent disability was to the extent of 50% and, accordingly, the Board issued the Ext.-10 certificate.
Upon appreciation of the evidence on record, the Claims Tribunal had reached the finding that the claimant suffered disfigurement of her face and also traumatic headache. The Claims Tribunal had come to a finding that the claimant could not lead satisfactory and cogent evidence to establish the fact that she had a monthly earning of Rs. 5,000/- only. Referring to the Second Schedule under Section 163A to the Act, the Claims Tribunal considered the notional income of Rs. 15,000/- only per annum for the assessment of compensation. The Claims Tribunal, equating the extent of permanent disablement of 50% as the percentage loss of earning capacity, had taken her annual loss of income at Rs. 7,500/- only. Accepting her age as 40 years at the time of accident and applying a multiplier of 15, the Claims Tribunal assessed the total loss of income at Rs. 1,25,500/-(= Rs. 7,500/- X 15). A sum of Rs. 10,000/- only was assessed under the head of pain and agony. The Claims Tribunal had found that the claimant had submitted bills and vouchers about her medical treatment for an amount of Rs. 1,458/-. An amount of Rs. 5,000/- was given as the cost of litigation. Accordingly, the Claims Tribunal had awarded a total amount of compensation of Rs.1,41,958/- (=Rs. 1,25,000/- + Rs. 1458/- + Rs. 10,000/- + Rs. 5,000/-) to the claimant in MAC Case No. 334/2004.
The materials available in the records of MAC Case No. 334/2004, in original, are perused. There appears to be no evidence in the records from which the claim of Rs. 5,000/- as monthly earning of the claimant from business is substantiated but the fact remains is that the claimant is a wife and a mother. Even assuming that the appellant-claimant i.e. the injured was not self-employed doing business, the fact also remains that she is a housewife and a homemaker. Her services to the family and the house is invaluable and it is very difficult to compute the same in terms of money. Time and again, the Apex Court has observed that it is not possible to quantify any amount in lieu of services rendered by wife/mother to the family. But to assess compensation in the event of death or permanent disablement of such wife/mother and a homemaker, some pecuniary estimate has to be done. Considering the attending facts and circumstances of the case and in the light of the various decisions of the Apex Court including the decision in Arun Kumar Agrawal vs. National Insurance Company Limited, (2010) 9 SCC 218, I am of the opinion that taking Rs. 15,000/- only as notional income, referring to the Second Schedule to the Act, by the Claims Tribunal for the purpose of assessment of compensation, requires modification as the amount appears to be on the lower side. Considering the fact situation obtaining in the present case and that the accident had occurred on 24.02.2001, an amount of Rs. 2,500/-only appears to be just and proper as monthly contribution of the appellant-claimant for the purpose of assessing the compensation. In that case, her annual contribution is assessed at Rs. 30,000/-. There appears to be no evidence available on record as regards future medical expenses, loss of amenities of life and loss of expectation of life. Ascertainment of the affect of permanent disability on the actual earning capacity involves ascertainment of the activities the claimant could carry on in spite of the permanent disability, etc. As the assessment of percentage of loss of earning capacity of the appellant-claimant as a result of the permanent disability, arrived at and recorded by the Claims Tribunal, is not assailed by any of the parties, the same does not require a reconsideration. As a result of permanent disfigurement of the face of the appellant-claimant, who is a lady, as evident from Ext.-10, it appears that the pain and agony including mental agony will have a permanent existence. In such view of the matter, I deem it appropriate to increase the amount under that head to Rs. 50,000/-, instead of Rs. 10,000/-, as had been granted by the Claims Tribunal. In absence of any other documentary evidence as regards expenses incurred in medical treatment in the records, no additional amount can be granted under the said head. In the light of the above discussion, the total loss of earning is assessed at Rs. 2,25,000/-(=Rs.15,000/- X 15). As a result, the total compensation is assessed as Rs. 2,81,458/- (=Rs.2,25,000/- + Rs.1,458/- + Rs. 50,000/- + Rs. 5,000/-). It transpires from records that after the award, the respondent no. 1-insurer had deposited an amount of Rs. 1,48,630/- before the Claims Tribunal towards compliance of the award dated 10.06.2013 with interest. It further transpires that the said amount of Rs. 1,48,630/-was disbursed in favour of the appellant-claimant on 12.09.2014. Therefore, the respondent no. 1 is directed to pay the enhanced amount of Rs. 1,39,500/- along with interest @ 8% per annum on the said enhanced amount from 16.07.2011 till the date of payment. The said amount shall be deposited by the respondent no. 1 before the Registry of this court within a period of 3 (three) months from today and on such deposit being made, the Registry shall disburse the said amount to the appellant-claimant in MAC Appeal No. 249/2015 (MAC Case No. 334/2004) on her due identification by his learned engaged counsel.
MAC Appeal No. 239/2015 (arising out of MAC Case No. 335/2004)
The appeal, MAC Appeal No. 239/2015, has been preferred against the judgment and award passed in MAC Case No. 335/2004 for and on behalf of the minor claimant, Md. Rousam Alom by the father, Md. Selim Manchuri. In the claim application, MAC Case No. 335/2004, the appellant-claimant, Md. Rousam Alom claimed that he suffered injuries on his left leg, knee, left forearm, hand and face, etc. which made him permanently disabled. An amount of Rs. 4,00,000/- was sought as compensation. It was stated that, at the time of the accident, the claimant was about 5 years. When the claimant, Md. Rousam Alom examined himself as an witness in the year 2012, he was about 15 years of age. He stated that after the accident, he was taken along with his father and mother, also injured in the accident, to the GMCH by Police of Chhaygaon Police Station. He further stated that as a result of the injuries sustained in all parts of his bodies, more particularly, in his left leg, he could not walk properly. After the treatment at the GMCH, he took medical treatment under Dr. S. Rahman on 28.02.2001. An amount of Rs. 20,000/- was stated to have been incurred in his medical treatment. He exhibited three medical advice slips as Ext.-13 to Ext.-15. Dr. S. Rahman, who treated the claimant in the instant case also, was examined as a witness and he deposed that the claimant had suffered permanent disability.
The Claims Tribunal after appreciation of the evidence on record including Ext.-14, had arrived at a finding that there was no evidence that the appellant-claimant took any medical treatment after 2001. Noticing that he was running his independent business, the Claims Tribunal had observed that there was no evidence that the appellant-claimant suffered any kind of permanent disability. Accordingly, the Claims Tribunal had awarded an amount of Rs. 25,000/- under the head of pain and agony the claimant had suffered at the time of the accident and thereafter. From the bills and vouchers, the Claims Tribunal had found that only an amount of Rs. 121/- was incurred in the medical treatment of the appellant-claimant. Additionally, an amount of Rs. 5,000/- was assessed as the cost of litigation. Accordingly, the Claims Tribunal had awarded an amount of total compensation of Rs. 30,121/- (= Rs. 25,000/- + Rs. 121/- + Rs. 5,000/-) to the claimant in MAC Case No. 335/2004.
I have perused the materials available in the records of MAC Case No. 335/2004. There is nothing on record to indicate that the appellant-claimant had suffered any kind of permanent disability as a result of the injuries he had claimed to have sustained in the accident that occurred on 24.02.2001. The documents in connection with his medical treatment indicate that he received medical treatment on 24.02.2001 and 28.02.2001 on which dates, some medicines were prescribed to him by the treating doctor. The evidence of Dr. S. Rahman that the claimant had suffered permanent disability does not inspire any confidence of this court, in view of want of any evidence to substantiate the said claim. In the absence of any evidence that the claimant had suffered any disability for which he had not been able to pursue his normal activities subsequent to 28.02.2001, I do not find any merit in this appeal whereby the claimant has sought enhancement of the amount of compensation granted by the Claims Tribunal. The amount of compensation of Rs. 30,121/- appears to be just and proper in the attending facts and circumstances of the case. Accordingly, I hold that the appeal is bereft of any merit and consequently, the same stands dismissed.
While dismissing MAC Appeal No. 239/2015 as above, the other two appeals viz. MAC Appeal No. 246/2015 & MAC Appeal No. 249/2015, are allowed to the extents indicated above.
Records are to be sent accordingly.