High Court · 2012

The findings as returned by the Tribunal as regards the accident that occurred on 04.02.2005 for rash and negligent driving of the vehicle beari ng registration No.AS-18-9079(Pick-up Van) which dashed the other vehicle having registration No. AS-01-M/7482 (Indica Car), injuries as received by the appella nt in the said accident and the insurance cover of the offending vehicle by the United India Insurance Company Ltd. and of the other vehicle by the Oriental Ins urance Company Ltd. are not in dispute by either of the parties or in the appeal . As such those findings stand affirmed and further appraisal thereof is avoided . 3. tion as well as on non-consideration of the Exbt.9(a) & Exbt.1-10 documents. 4. Mr. B.R. Dey, learned senior counsel appearing for the appellant referred the finding of the Tribunal which has been reproduced hereunder whereb y the Tribunal has rejected the Exbt.9, Exbt.9(a) Cash-memo and other documents. The appeal is grounded on the question of the assessment of the compensa (cid:28) The proper medical expenditures as per cash memos i.e. Ext.9 is around Rs.1,60 ,000.00 Ext.9(a) Cash-memo is found to be with overwriting of date and having th e same medicine vide Ext.9 cash-memo and the claimant has failed to give explana tion of the overwriting and repetition of the same medicine which are found in E xt.9 and as such Ext.9(a) cannot be taken into consideration here. Ext.9(b) Cash -memo is also found to be not properly proved. (cid:29)

5. Mr. B.R. Dey, learned senior counsel appearing for the appellant has referred the Exbt.6 document which has been issued by the Registrar, Orthop aedic Department, Guwahati Medical College and Hospital. The Exbt.7 document, th e Exbt.9 document, the Exbt.9(a) document and the Exbt.9(b) documents are also i ssued by the same medical college and hospital. It appears from scrutiny of the Exbt.6 document that the purchase value of the m edicines as available in the Exbt.8 document, Exbt.9(a) document and Exbt.9(b) d ocument are available in the Exbt.6 document in a consolidated form. Therefore, the Exbt.8 document, the Exbt.9(a) document and the 9(b) document would have no relevance if the Exbt.6 document is considered. Apart that Mr. B.R. Dey, learned senior counsel submitted that t he appellant had suffered fracture injury from the said road traffic accident an d he was treated in the Guwahati Medical College and Hospital from 04.02.2005 ti ll 11.02.2005 and for recovery the appellant has to be under treatment for about 4(four) months. Ms. R.D. Majumder, learned counsel appearing for the respondent 5. stoutly supported the impugned judgment and award dated 15.11.2007 and contended that unless there is strong foundation of evidence, no guess work is permissibl e. In support of her contention Ms. R.D. Majumder, learned counsel appearing for th e respondent relied on a decision of this Court in State of Arunachal Pradesh Vs . Manmohan Singh Bhomrah as reported in 2008(1) GLT 658 where it has been held t hat: (cid:28)8. in a claim petition filed by the claimant can pass an award taking into account the medical expenses incurred and to be incurred, as the learned Tribunal cannot pass the award on piecemeal basis and it has to pass the final award. The amoun t of compensation awardable, naturally would include the amount of compensation awardable for future medical treatment as observed by the Apex Court in Nagappa (supra). While ascertaining the just compensation awardable to the claimant rela There is no dispute to the proposition of law that the learned Tribunal ting to the loss of income as well as the future medical expenditure to be incur red by the claimant, some guess work is also permissible, provided there is foun dation in the evidence laid by the claimant. (cid:29)

6. On appreciation of the rival contentions as advanced by the coun sel for the parties as well as on scrutiny of the records, this Court finds that the Tribunal by ignoring the Exbt.6 document has committed serious error. Apart that, by not giving any compensation for loss of earnings and for pain and suff erings, the Tribunal has acted unreasonably and contrary to the provisions of Se ction 168 of the Motor Vehicles Act. It appears from the Exbt.6 document that th e appellant purchased medicines and other materials for treatment to the extent of Rs.38,758/-, rounded off at Rs.40,000/-. The appellant has claimed that he us ed to earn Rs.3,500/- per month. But he has not disclosed what type of business he was doing. As a result, considering his age and other attending circumstances , his income is assessed at Rs.3,000/- per month. Since the appellant was restri cted from the normal working life for the treatment for a period of 4(four) mont hs, the loss of earning is calculated at Rs.12,000/-. Another sum of Rs.15,000/- for pain and sufferings be added as the component to the compensation. Thus the total compensation comes to Rs.67,000/-. The said amount shall carry interest @ Rs.7% per annum from the date of filing of the claim petition till the payment is made. 7. The United India Insurance Company Ltd. shall pay the entire awa rded sum with interest within a period of 2(two) months from today in the Tribun al on deducing the sum, if any, is already paid. As there is no evidence in rec ord to show that there had been contributory negligence on the part of the other vehicle bearing registration No.AS-01-M/7482 and no evidence was led by the res pondents to dislodge the claim of the appellant that the accident occurred for t he rash and negligent driving of the said pick-up van, there cannot be any presu mption without foundation of evidence as regards the contributory negligence. 8. For the reasons as aforesaid, the appeal stands allowed to the e xtent as indicated and the impugned judgment and award stands interfered with ac cordingly. 9. Send down the LCRs forthwith.