Padma Nath Talukdar vs M/S Juma Hardware And Ors

Heard Mr. B.N. Sarma, the learned counsel appearing for the appellant/claimant. Also heard Mr. A. Acharya, learned counsel appearing for the

respondent No.2. None is present to represent the respondent No.1.

This Appeal is preferred against the judgment and award dated 14.6.2011, passed by the learned Member, Motor Accident Claims Tribunal,

Kamrup, Guwahati, in the MAC Case No.188/2004.

The claim petition was preferred by one Padma Nath Talukdar, under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as

‘the M.V. Act’), praying compensation for the injuries he sustained in a motor accident on 22.5.2003, involving the vehicle No.AS-25/A-2771,

which was insured with the New India Assurance Co. Ltd. According to the claimant, while he was proceeding by the side of the road, the said

vehicle hit him from the backside, as a result of which he sustained injuries on his hip joint and had to undergo medical treatment. On the basis of the

said petition, the notice was issued to the respective parties i.e. the driver, the owner and the insurer of the vehicle. The driver and the owner of the

vehicle did not contest the claim and the matter proceeded exparte against them. The Insurance Company contested the case by filing written

statement with contention that there is no negligence on the part of the driver of the vehicle and the incident occurred due to negligence of the

claimant himself and his claim is excessive and inflated.

Necessary issues were framed on the basis of the pleadings between the parties and after examining the evidence on record as well as the

documents exhibited by the claimant, the learned Tribunal awarded the amount under the head of pain and sufferings Rs.10,000/- and for loss of

amenities of life Rs.20,000/-, total Rs.30,000/- to the claimant. As the claimant was a Central Government employee and him medical cost was

reimbursed, so the Tribunal did not award any compensation under the medical expenses. Similarly although the claimant has claimed for

compensation under the medical certificate of 25% disability suffered due to the accident, the learned Tribunal was of the view that as the said

disability does not affect his earning capacity and he has not suffered any loss of his earning, so no any compensation was given under that head.

The learned Tribunal further held that since the claimant has not incurred any financial loss either for treatment or for alleged disability, he is not

entitled to any pecuniary damages in the present case. But due to the fracture injury in the age of 53/54 years, as he was suffering from some physical

discomfort and mental agony, he was granted some non-pecuniary damages as mentioned above.

Although the said amount of compensation has already been deposited before the Tribunal along with interest but the claimant being not satisfied

with the aforesaid award, has bring forward the matter by way of appeal, on the ground that the assessment made by the Tribunal is not proper. It is

contended that the learned Tribunal has not properly appreciated the disability sustained by the claimant as well as the sufferings undergone by the

claimant. It has been urged that due to the injuries, the claimant has difficulty in walking and is suffering from osteoarthritis after the said acceding,

which is reflected by the evidence of the Doctor, who has been examined as PW.6. Accordingly it has been contended that the claimant is entitled to

further compensation at the enhanced rate in appropriate heads.

The learned counsel for the respondent, Mr. A. Acharya has however resisted such claim on the submission that the claimant has reimbursed all

the pecuniary damages from the Department concerned and there is no such loss on his part because of such disability as has been mentioned above,

as he resumed his duties after five months of the accident and regularly retired from service and he is not entitle to any sort of compensation on

account of such disability. Further contention of the learned counsel for the respondent/ Insurance Company is that the learned Tribunal has properly

appreciated the matter and the awarded compensation was appropriate.

I have gone through the record and the evidence adduced including the LCR and the documents annexed. I also considered the rival submissions of

both the parties.

There is no dispute as regards the injuries sustained by the claimant and it is also reflected from the version of the claimant that he has reimbursed

all the medical expenses from the Department concerned. So we need not to discuss all about the medical xpenses. So this Court is now to examine

as to how far the claimant is entitled to any other non-pecuniary damages.

On perusal of the documents that have been exhibited, it emerges that the claimant sustained fracture of femur (left), for which he was operated

on 22.5.2003 and was released from the hospital on 1.6.2003. Thereafter also he was bed ridden for two months and could resume his dues after five

months. In between he was to attend by particular attendant apart from the family members for which he has to pay extra payment to such attendant.

It also cannot be denied that while admitting in a hospital for treatment of fracture injury and continue such treatment for further five months after the

release from hospital, there must be some miscellaneous expenditures, that might have been incurred by the claimant. So the claimant is entitled to

some sort of amount on account of miscellaneous expenditures and also towards the attendant. It is also noted that the claimant was almost confined

for five months for the injuries he sustained at his old age and he was unable to move properly during the said period. In that view of the matter, the

amount awarded by the learned Tribunal is found on the lower side. This should be increased.

The accident occurred in the year 2003 and the award was given in the year 2011. So there is inflation of money by the efflux of time. As such

the compensation awarded, requires to be enhanced.

Lastly, as the prayer for compensation on account of 25% disability, as has been certified by the Doctor, it can be noted that the same certificate

was given by a attending Doctor in the year 2008 but to certify such disability, the certificate of Board of Doctors under the Social Welfare

Department is a must to assess such disability, which is not found in the instant case. The only opinion given by the attending Doctor is that the

claimant is suffering from osteoarthritis and this may not be surely for the accident and may be for the old age of the claimant. However, such a

certificate given by the attending Doctor cannot be accepted to assess the disability.

On the other hand, there is nothing to show that due to such physical disability, there was any financial loss incurred by the claimant. So, in the

considered opinion of this Court, the claimant is not entitled to get any compensation under the head of disability.

Taking into account all above, following amount is no calculated to the just and proper to be awarded to the claimant at the enhanced rate:

(i) For pain and suffering                                 : Rs.50,000/-

(ii) For loss of amenities in life                        : Rs.50,000/-

(iii) For miscellaneous expenses                       : Rs.20,000/-

(iv) For payment to the attendant for two months : Rs. 4,500/-

                                   Total

                           : Rs.1,24,500/-

(Rupees one lakh twenty four thousand five hundred) only.

Accordingly, the insurer offending vehicle, New India Assurance Co. Ltd. is directed to pay the award at the enhanced rate with interest @6%

per annum, from the date of filing of the claim petition till payment, by deducting the amount already paid, if any, within a period of six weeks from the

date of order.

As directed above, the appeal stands allowed. Return the LCR forthwith.