Narayan Chandra Aich vs Kohinur Begam And Anr

Heard Mr. B. Debnath, learned counsel appearing for the appellant as well as Mr. A. Das, learned counsel appearing for the respondent, New India Assurance Company Limited.

By means of this appeal filed under Section 173(1) of the Motor Vehicles Act, 1988 hereinafter referred to as the MV Act, the judgment and award dated 27.09.2014 delivered in Title Suit (MAC) 425 of 2011 by the Motor Accident Claims Tribunal, No.1, West Tripura, Agartala has been called in question.

It is to be noted at the outset that the appellant is not the victim but he has been representing the victim namely Tripti Aich @ Tripti Rani Aich who is the appellant's daughter and disabled. The facts relating to the accident which occurred on 20.08.2011 at 1200 hours at Balerdepa near NEEPCO on the Sonamura-Kathalia road for collision of the vehicle (the Commander Jeep) bearing registration No.TR-03-1996 and the vehicle (the jeep) bearing registration No.TR-01-A-2384. According to the victim, when she was proceeding towards Kathalia from Sonamura boarding the Jeep bearing No.TR-01- A-2384, the said vehicle being driven at extreme high speed, rashly and negligently, dashed the said commander jeep bearing No.TR-03-1996. In the said accident, the victim and other passengers of the vehicle sustained grievous injuries. She was immediately transported to Melaghar Hospital and there she was admitted. On 21.08.2011, she was referred to Kolkata as an emergency stretcher patient. In Kolkata, she was admitted in Medica Super Specialty Hospital from 21.08.2011 to 01.10.2011. Thereafter, she was admitted in All Asia Medical Institute and continued her treatment. According to the claimant, her daughter had suffered permanent disablement from the said accident.

It is also not disputed that the victim had passed the Diploma in Tailoring and she is skilled Embroidery. She was running a tailoring and embroidery shop, combined with beauty parlour. It has been claimed that she used to earn Rs.12,000/- per month and as she has lost the income, a sum of Rs.1,53,93,000/- had been claimed as compensation, inclusive of expenses of her treatment, loss of earning and loss of matrimonial prospects. The owners of those vehicles denied the allegation of rash and negligence. For adjudication of the rival claims, the tribunal framed numerous issues including whether the vehicles bearing registration No.TR-01- A-2384 (Jeep) and No.TR-03-1996 (Commander Jeep) met an accident on 20.08.2011 at about 1200 hours at Balerdepa near NEEPCO on the Sonamura-Kathalia road under Sonamura P.S. due to rash and negligent driving of the vehicles. The other issue is what the degree of the injuries and impact thereof was. That apart, there is an issue of assessment of the compensation, meaning what amount should be awarded for the injuries and for loss of mobility loss of the future prospects to the victim who has filed the claim through her father.

On recording the evidence, the tribunal has assessed the compensation at Rs.17,69,101/- to be paid with interest @ 9% per annum from 01.11.2011 till realization. It has been directed by the tribunal that out of the total awarded amount with interest, a sum of Rs.2,50,000/- shall be kept in fixed deposit in the name of Smti. Tripti Aich at the UCO Bank, District Court Branch, Agartala for a period of 10 years. Only the balance amount shall be paid to her. No loan or withdrawal shall be permitted from the fixed deposit without the permission of the Tribunal. However the victim was given liberty to withdraw the monthly interest from the said fixed deposit.

Being aggrieved by the said assessment, the appeal has been preferred. It appears from the impugned judgment that a sum of Rs.24,000/- was allowed to the victim as the compensation towards loss of earning. A further sum of Rs.1,60,000/- was awarded on account of loss of income for the next five years. An amount of Rs.50,000/- has been allowed as the compensation towards the loss of prospect of marriage. Rs.30,000/- has been allowed as the compensation for the pains and sufferings.

Before this appeal is heard, at the instance of the appellant, two consecutive applications being IA No.03/2018 and IA No.04 of 2018 have been filed to introduce the documents which were issued after the judgment and award was passed by the tribunal. By the order dated 09.10.2018 delivered in IA No.03 of 2018 in MAC APP No.22 of 2015, this court admitted the updated disability certificate issued by the District Disability Medical Board on 08.08.2018 wherefrom it appears that the rate of disability has come down to 51%. After that assessment, the Board had opined for the further review of disability after five years ten months. The reason for disability is loss of partial vision as the impact of the accident, single eye vision has been determined at 20% and there is further Locomotor disability in the right arm flail shoulder (RT), the said disabilities are measured at 40%. The said document Exhibit Additional-1 has been taken note by this court and that will be utilized in deciding the appeal. Similarly by the order dated 04.12.2018 a series of documents relating to the post judgment treatment has been filed by the appellant by IA No.04 of 2018 from MAC APP No.22 of 2015. Those documents have been admitted by this court and marked as Exhibit AA-1 to AA-95. These documents include the cost of treatment, transportation including the airfare etc. Those documents are noted to be utilized in deciding the appeal.

Mr. B. Debnath, learned counsel appearing for the appellant has submitted that while the tribunal deciding the expenses of fooding and accommodation for stay of the victim at Kolkata for 71(seventy one) days no expenses for the escorts has been provided. This is grossly unreasonable and unjust. Even Mr. Debnath, learned counsel has submitted that after return from Kolkata for the attendant, the tribunal has made calculation for seventy days, the period when she was admitted as indoor patient. According to Mr. Debnath, learned counsel it ought to have been for the entire five years for which period the victim has been declared disabled. On the basis of the documents as admitted by this court, Mr. Debnath, learned counsel has submitted that the expenditure for air ticket for post-treatment would come to Rs.57,374/-. However, According to Mr. Debnath, learned counsel, some air tickets have been lost.

Mr. Debnath, learned counsel has further submitted that the expenditure not only in respect of the post-judgment period has been denied but the tribunal has not calculated the actual bills paid to the Advance Medical Research Institute (AMRI in short) at Kolkata to the extent of Rs.2,07,727/-. Similarly the medical bills of Rs.1,51,449/- was not added in the award. Mr. B. Debnath, learned counsel has further submitted that for pain and suffering the amount that has been awarded is so meager does not appear proportionate to pain and suffering suffered by the victim. He has urged this court to raise the award to Rs.10,00,000/-. Even Mr. Debnath, learned counsel appearing for the appellant has expressed the grievance against the sum of Rs.50,000/- which has been given for the disfiguration in the face and body of the victim. That apart, Mr. Debnath, learned counsel has submitted that the injury that the victim has suffered has made her totally disabled so far her occupation is concerned and as such loss of income should be calculated not only for the five years but for her entire life. For the further treatment, the victim went to Vellore during the period from 27.06.2015 to 23.07.2015. But since the said hospital could not accommodate her, she had traveled further to Chennai and there she was treated.

On the basis of the documents as issued by the Appollo Hospitals, Chennai the victim has further claimed a sum of Rs.76,000/- for cost of treatment in Appllo Hospital and cost for medicine at Rs.23,210/-. In support of this claim, the documents which were the additional document as admitted in the court have been referred to, by Mr. Debnath, learned counsel appearing for the appellant. For the miscellaneous expenses such as lodging and food for treatment in the Appollo Hospital a sum of Rs.50,000/- has been claimed and further the cost of the air fare (to and fro) to the extent of Rs.70,900/- has been sought to be added. Even for the future treatment Mr. Debnath, learned counsel has urged for the victim a sum of Rs.30,00,000/-.

Mr. A. Das, learned counsel appearing for the respondent, New India Assurance Company Limited, the notice, has submitted that the claim on the basis of the vouchers in respect of the treatment of the victim, the insurance company will not oppose, but they would seriously oppose the prayer for enhancing the amount having considered the victim, totally disabled inasmuch from the Exhibit Additional-1 it would be apparent that the victim has been progressing well and within five years 10% disablement has been reduced and now she stands at 31% of disablement. Moreover, the disablement of this nature cannot be termed as the total ouster from the occupation and hence the claim of the appellant in this regard is not sustainable. That apart, Mr. Das, learned counsel has submitted that the amount for future treatment as claimed by the appellant for the victim is not sustainable as there is no definite medical opinion in this regard.

Mr. Das, learned counsel has also contested the claim for enhancing the income of the victim to Rs.10,000/- inasmuch as in this regard the assessment of the tribunal according to Mr. Das, learned counsel is absolutely reasonable and just.

Having appreciated the submissions of the learned counsel for the parties, this court is of the view that the omission as made by the tribunal in respect of adding the treatment cost inclusive of the medicine cost and the post judgment treatment cost and other ancillary costs including the air fare etc are required to be considered. Moreover, components of the compensation in respect of the pain and suffering and disfiguration, according to this court, is required revisit. On the other grounds, this court would observe in the latter part of the judgment. The income of the victim according to this court should be raised to Rs.6,000/- per month having due regard to the nature of self employment she was having. Loss of earning should be calculated for ten years from the date of accident. Thus the loss can be determined in the following manner:

Loss per year be calculated at Rs.43,200/- and for ten years total loss would come to Rs.4,32,000/-. Thus the difference for enhancement comes to Rs.2,71,990/-. This difference has been calculated for convenience. But the claim that has been raised by the appellant to enhance the charge of the attendants is not accepted by this court and accordingly the same stands rejected. However, the expenditures which were not considered by the tribunal such as the expenditure for air tickets at Rs.57,374/-, hospital bills of AMRI at Rs.2,07,727/- and medicine bills of the AMRI Rs.1,51,449/- are to be added, in addition to the cost of treatment as given by the tribunal. On these three components a sum of Rs.4,16,550/- be added as component of the compensation. The amount awarded by the tribunal for disfiguration of the body of the victim shall be enhanced to Rs.1,00,000/-. The difference on this account is Rs.50,000/-, that has to be added as the enhanced part of the compensation on that count. Similarly, the award has been made for the pain and suffering would be enhanced to Rs.2,00,000/- from 30,000/-.Thus the difference would come to Rs.1,70,000/-. For the post- judgment treatment, the victim is entitled to the following sum:

(a) For air fare (with escorts) Rs.60,000/- (to and fro).

(b) Cost of treatment Rs.3,915/-.

(c) For fooding and lodging at Vellore Rs.10,000/-.

(d) For treatment in Chennai Rs.76,000/-.

(e) Expenses in Appollo Hospital including medicinal cost-Rs.23,000/-. For fooding and lodging at Chennai with escorts would be Rs.30,000/-. For purpose of the future treatment, a sum of Rs.1,00,000/- is granted considering the status of the victim as reflected in the various medical opinions.

Thus the total sum that would be added to the compensation for the post judgment treatment would come to Rs.2,72,945/-. Therefore, the total enhancement which will be added to the award made by the tribunal would be Rs.11,81,485/-. Hence, the total compensation that would be payable to the victim is Rs.29,50,586/-. But this court will interfere with the interest rate and it will be 7% from the date of filing of the claim petition i.e.01.11.2011 till the payment is made. The insurer, namely, New India Assurance Company Limited in view of the observation made by the tribunal which has remained unchallenged, shall pay the entire amount within two months from today in the tribunal, after deducting any sum that has been paid by them in the meanwhile. After such deposit is made a sum of Rs.5,00,000/- shall be maintained in the fixed deposit in the name of the victim under any nationalized banks including the UCO Bank, District Court Branch, Agartala, West Tripura for a period of ten years and the victim will be permitted to take the interest quarterly from the said sum for her welfare or any necessity, but no loan or no lien should be created on the said term deposit.

In terms of the above, this appeal stands allowed to the extent as indicated above.

There shall be no further order as to costs.