Musstt. Moriom Bibi vs Divisional Manager And 7 Ors

Heard Mr. AH Laskar, learned counsel for the appellant and Mr. KK Bhatta, learned counsel for Respondent Nos. 1 and 2. Also heard Mr. RK

Bhatra, learned counsel for Respondent Nos. 5 and 6.

The appellant Musstt. Moriom Bibi has preferred the present appeal against the judgment and award dated 27.4.2015 passed by the learned

Member, Motor Accident Claims Tribunal, Kokrajhar in MAC Case No. 21/2013 praying for enhancement of the award.

The case of the appellant-claimant is that on 27.11.2012, while her daughter Manjuma Bibi, aged about 12 years, was travelling in a TATA Indica

bearing Registrar No. AS-01-AH/0713, at that time, another vehicle (TATA Magic) bearing Registration No. AS-17/B-1538 coming from the opposite

direction collided with the TATA Indica, as a result of which, the appellant’s daughter sustained several injuries on her person.

The learned Tribunal issued notice to the driver, owner as well as insurer of both the vehicles and, in turn, all the respondents appeared and

contested the case by filing their written statements.

On the basis of the pleadings of the parties, the learned Tribunal framed the following issues :

“1. Whether the injured Musstt Manjuma Bibi @ Manjuma Khatun sustained injuries in the alleged motor vehicle accident on dated 27.11.12

involving the vehicle No. AS-01-AH/0713 (Tata Magic) and whether the said accident had taken place due to rash and negligent driving of the

offending vehicle ?

Whether the claimant side is entitled to any compensation, and if yes, to what extent and by whom amongst the opposite parties, the said

compensation amount will be payable ?â€​

During the course of the proceedings, the claimant side examined three witnesses in support of its case. The other side, however, did not examine

any witness. On examination of the evidence on record as well as the documents exhibited, the learned Tribunal came to a finding that injured

Manjuma Bibi sustained injuries on her person in the said motor vehicle accident for the rash and negligent driving of the TATA Magic and held O.P.

Nos. 3,5 and 6 responsible for payment of compensation to the victim. The learned Tribunal further held that as the TATA Indica was a private

vehicle and the victim was carried in the said vehicle as a passenger against payment of fare, so, they have violated the policy conditions under

Section 149 of the M.V. Act and, accordingly, the insurer/ O.P. Nos. 1 and 2 were exonerated from their responsibility to pay compensation.

In view of the injury so sustained by the victim in the said accident and on the basis of the medical vouchers and certificates etc., the medical

expenses incurred by the victim was assessed to be Rs. 33,300/-. On the other hand, in view of the fracture injury so sustained by the victim as well

as considering her pain and suffering etc., an amount of Rs. 40,000/- was awarded under the heading ‘pain and suffering, nutritious food,

conveyance for medical treatment’. Thus, a total amount of Rs. 73,300/- was awarded as compensation to the claimant with a direction to the

owner of the TATA Indica (O.P. No.3) to pay half of the compensation amount and the remaining amount to be paid by the insurer/ O.P. Nos. 5 and

6 (National Insurance Company Limited).

Being dissatisfied with the aforesaid award, the present appeal has been preferred by the appellant for enhancement of the awarded amount on the

ground that the assessment made by the learned Tribunal is not proper as the victim being a girl of tender age, has sustained several injuries on her

person including cut injury on her ear and she has incurred huge expenses which were not accepted by the Tribunal. It is also contended that the

victim is still continuing her treatment for which further cost of treatment is required.

The submissions advanced by the learned counsel for the parties have been duly considered. I have also perused the materials available on record.

It is to be noted that except one cut injury on the ear and the injury sustained on the head, for which the victim had received treatment at different

hospitals including the Hayat Hosital, there is no any specific finding of the attending doctor that the victim needs further treatment for the injuries so

sustained by her. There is also no any medical document to show that the victim is still under treatment. Reliance has been placed upon the certificate

(Exhibit-32) issued by the Hayat Hospital certifying that an approximate cost of Rs. 2 Lakhs will be required, out of which the patient has deposited

Rs. 45,000/- and the remaining amount is to be paid at the time of discharge. There is, however, no any supporting bill and voucher regarding such

payment of Rs. 45,000/- by the claimant side. The other medical vouchers that have been submitted also do not amount to Rs. 2 Lakhs in total.

The learned Tribunal on the basis of the medical documents and other relevant documents has assessed the medical expenses incurred by the

claimant side as Rs. 33,000/-. But on proper calculation of all relevant documents, it appears that an amount of Rs. 42,187/- has been incurred by the

claimant side in the course of treatment of the victim. However, it appears that three other vital cash memos amounting to Rs. 55,000/- were not taken

into account by the learned Tribunal as there was no seal/signature on the discharge certificate. But considering the entire documents on record and

the continuing treatment of the victim, the discharge certificate also can be taken into account for the purpose of calculating the necessary

compensation to be awarded. The learned Tribunal, on the other hand, has taken a lumpsum amount of Rs. 40,000/- on various counts without

bifurcating them under specific heads.

Considering all above, the following calculation is now considered to be just and proper to be awarded to the claimant :

Pain & suffering : Rs. 10,000/-

Conveyance for medical treatment : Rs. 10,000/-

Miscellaneous expenses : Rs. 20,000/-

Medical treatment : Rs. 97,187/-

Total : Rs.1,37,187/-

(Rupees One Lakh Thirty Seven Thousand One Hundred Eighty Seven)

The owner of the TATA Indica/ Respondent No.3 and the Respondent Nos. 5 and 6 (National Insurance Company Limited) will pay the aforesaid

amount at the ratio of 50:50. The enhanced amount, however, will not carry any interest.

With the aforesaid observation/ direction, the appeal stands disposed of.