Cholamandalam MS General Insurance Company Ltd. v. Sri Litan Ghosh

Judgment

#1. Sri Litan Ghosh, Son of Sri Narayan Ghosh Resident of village - Nirbhoypur, Jamini Tilla, Ward No.3, PS - Jatrapur, District - Sepahijala, Tripura.

#2. Md. Abdul Malek, Son of Kala Miah Resident of Baghirchar PS - Jatrapur, Sonamura (Owner of offending vehicle bearing registration No. TR-01-V-1888, Bolero Pick Up) -----Respondent(s) CO (FA) 2/2022 Litan Ghosh, S/o- Sri Narayan Ghosh, R/o- Village- Nirbhoypur, Jamini Tilla, Ward No-3, PS- Jatrapur, District- Sepahijala, Tripura ----- Appellant(s) Versus Page - 2 of 14

#1. Chalamandalam MS General Insurance Company Ltd. Agartala Branch, Mantribari Road, Agartala, West Tripura, P.S.- West Agartala, Dist- West Tripura, PIN- 799001. (Insurer of the Vehicle bearing No- TR01V 1888, Bolero Pick-Up)

#2. Sri Abdul Malak, S/O- Kala Miah, R/o- Vill- Baghirchar, P.S- Jatrapur, Sonamura, District- Sepahijala Tripura (Owner of the Vehicle bearing No- TR01V 1888, Bolero Pick-Up). -----Respondent(s) For Appellant(s) : Mr. P. K. Ghosh, Adv. For Respondent(s) : Mr. Bijan Saha, Adv. Mr. Samarjit Bhattacharjee, Adv. Date of Hearing & Judgment : 2nd February, 2022. Whether fit for reporting : NO _B_E_F_O_R_E_

HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY JUDGMENT & ORDER (ORAL) The present appeal as well as the cross-objection arise from the judgment and award dated 16.12.2019 passed by the Motor Accident Claims Tribunal (No.3) in case No.T.S. (MAC) 83/2015. Both the matters are heard together and taken up for disposal by this common judgment as the facts and law are same in both the cases. [2] The factual background of the case is as under: Page - 3 of 14 Original claimant, Litan Ghosh received fatal injury in a road traffic accident on 09.01.2015 at around 9:30 AM at Nirbhoypur under Jatrapur Police Station. As stated by the claimant in his petition filed under Section 166 of the Motor Vehicles Act, 1988, the claimant, at the material time was buying some goods from a road-side shop at Nirbhoypur. At that time, the offending Bolero Pick-Up Van bearing registration No.TR01-V-1888 hit him and crushed one of his legs. The local people had immediately taken him to nearby Kathalia hospital from where he was taken to Melaghar hospital and ultimately, he was shifted to AGMC and GBP hospital at Agartala. According to the claimant, the accident occurred as a result of rash and negligent driving of the vehicle. [3] On 19.01.2015, he lodged an FIR with the Officer in- charge of the Jatrapur Police Station alleging, inter alia, that the speeding vehicle on its way to Nirbhoypur suddenly stopped while ascending an up on the road and it started moving backwards. Before the claimant could decide anything, the vehicle fell on him. His right leg was crushed under the vehicle. Jatrapur Police Station Case No.005 of 2015 under Sections 279 and 338 IPC was registered on the basis of his FIR and investigation of the case was taken up. After Page - 4 of 14 investigation, police submitted charge-sheet against accused driver Ramjan Ali for having committed offence punishable under Sections 279 and 338 IPC. [4] As a result of the accident, the claimant suffered from locomotor disability to the extent of 80% in his right leg and a disability certificate (Exhibit-6) was issued by the District Disability Medical Board, West Tripura, Agartala. [5] Thereafter, the claimant filed an application under Section 166 of the Motor Vehicles Act claiming compensation of a sum of Rs.15,00,000/- for the injury and loss suffered by him. In his claim petition, he impleaded the owner of the offending vehicle and the insurer of the vehicle as respondents who appeared and submitted separate written statements. Owner pleaded that his vehicle was registered and insured with Cholamandalam General Insurance Company Ltd. (respondent No.2) and as such, any liability of compensation arising out of the accident would be borne by the said insurance company. [6] The insurer, on the other hand, pleaded that the claim was exorbitant and the claimant petitioner was not entitled to such huge amount of compensation. The accident and the involvement of Page - 5 of 14 the offending vehicle in the said accident were not denied by any of the respondents. [7] Based on the pleadings of the parties, the tribunal framed 3 issues which are as under: i. Whether Litan Ghosh received injuries in road traffic accident which occurred on 09.01.2015 at 9/9:30 AM at Nirbhoypur (Ward No.3) under Jatrapur Police Station due to rash and negligent driving of vehicle bearing registration No.TR01/V-1888 (Bolero Pick-Up.) ii. Whether claimant petitioner entitled compensation for such injury and if so, what would be the fair amount of compensation and who shall be liable to pay such compensation. iii. What are the relief/reliefs the parties are entitled to. [8] After the issues were thus framed, claimant examined himself as PW-1 and Dr. Dipti Bikash Roy as PW-2 and adduced some documentary evidence. No evidence was adduced on behalf of any of the respondents. The tribunal then proceeded to decide the matter on the basis of the evidence available and by its judgment and award dated 14.03.2018 awarded compensation of a sum of Rs.10,98,732/- Page - 6 of 14 to the claimant and held that since the owner did not appear during trial to prove the insurance policy of his vehicle, the owner would be liable to pay the whole amount of compensation awarded by the tribunal. Despite the insurance policy being on record, the insurance company was relieved of its liability to pay the compensation to the claimant. Tribunal directed the owner to pay the compensation within 30 days from the date of judgment along with 6% annual interest thereon from the date of filing till disbursement. [9] Aggrieved owner challenged the said judgment and award dated 14.03.2018 before this Court in MAC App. 72/2018. The said MAC appeal was decided by this Court by order dated 13.03.2019 which reads as under: “[7] As such, the appeal stands disposed of on the following mutually agreed terms: (a) For the reason that the Tribunal passed the order, which in any event, is against the settled principles of law what was totally ignored while granting compensation, impugned award dated 14.03.2018 passed by the Motor Accident Claims Tribunal, Court No.1, West Tripura, Agartala, in Title Suit (MAC) No. 83 of 2015 titled as Sri Litan Ghosh vs. Abdul Malak & Others, is quashed and set-aside and the matter be remanded back to the Tribunal for consideration afresh. Page - 7 of 14 (b) Parties undertake to appear before the Tribunal on 03.04.2019, on which date, the owner-respondent shall file his objection to the claim petition; (c) A date shall be fixed by the trial Court enabling the claimant to file response and lead evidence, if so required and desired; (d) Parties undertake to fully cooperate and not to take any unnecessary adjournments; (e) Save and except, for official witnesses, at their own cost and responsibility, parties shall produce their entire evidence on such date as may be fixed by the Court; (f) Hearing is expedited and it is expected of the Tribunal to decide the matter within a period of six months from the date of receipt of the order; (g) Liberty reserved to the parties to place on record original documents before the Tribunal; (h) Original documents filed here be returned to the Tribunal; (i) This Court has not expressed any opinion on merits of the case; (j) All issues are left open; With these observations and directions, the present appeal stands disposed of. Pending application, if any, also stands disposed of. Registry shall ensure copy of the order be supplied to the learned counsel for the parties.” [10] Pursuant to the order aforesaid passed by this Court, tribunal held fresh trial of the case. In the course of fresh trial before the tribunal, claimant examined himself as PW-1 and Dr. Dipti Bikash Roy as PW-2 and adduced the certified copy of FIR, seizure list, Page - 8 of 14 charge-sheet as well as the certified copy of his discharge certificate dated 19.02.2015, cash-memos of the purchase of medicines and other services, his disability certificates etc., which were taken into evidence and marked as exhibits. [11] The owner of the offending vehicle on the other hand, examined himself as OPW-1 and submitted various documents including the registration certificate and his vehicle tax token, fitness certificate, driving license of the accused driver, pollution certificate and the insurance policy, which were taken into evidence and marked as exhibits. [12] On appreciation of evidence, the tribunal held that the accident was proved and it was also proved that the claimant received 80% locomotor disability from the said accident. Accordingly, the tribunal answered the first issue in favour of the claimant. While deciding the second issue with regard to the entitlement of the claimant to compensation, tribunal held that the claimant was entitled to the cost of medicines and treatment, compensation for pain and sufferings, reimbursement of the charges of conveyance, special diet and attendance and above all, he was entitled to compensation for loss of income. Tribunal worked out the compensation payable to the Page - 9 of 14 claimant under various pecuniary and non-pecuniary heads which are a s under: Heads Sl. No. Rs.18,732/- 1. Medicines and treatment : Rs.50,000/- Pain and sufferings : 2. Rs.15,000/- Conveyance and Special diet : 3. 4. Rs.10,80,000/- Loss of income : Total: Rs. 11,63,732/- Calculation [13] Tribunal awarded 9% annual interest on the said amount of compensation and since the vehicle was insured and the insurance policy was operative on the date of occurrence, the tribunal held that in terms of the said policy, the insurance company (respondent No.2) would be liable to pay the compensation and accordingly directed the insurance company to deposit the whole amount of compensation with the tribunal within a period of 30 days from the date of judgment. [14] Aggrieved by the said order, the insurance company has filed this appeal mainly on the following grounds: i. Rash and negligent driving of the vehicle was not proved before the tribunal. ii. Claimant could not substantiate his claim for cost of medicine and treatment by adducing reliable evidence. Page - 10 of 14 iii. Tribunal awarded an exorbitant amount of compensation along with higher rate of interest without taking into consideration the actual entitlement of the claimant. [15] The claimant has also filed cross-objection enhancement of the compensation awarded by the tribunal mainly on the following grounds: i. Tribunal did not consider the fact that the claimant was a young boy of 23 years of age who lost his job and capacity to earn forever due to the disability suffered by him from the said accident. ii. Tribunal did not appreciate the evidence that monthly income of the claimant at the time of accident was Rs.15,000/- and 80% disability suffered by him actually amounted to 100% functional disability. iii. Tribunal did not consider that the claimant was entitled to higher amount for his pain and suffering. [16] Heard Mr. P. K. Ghosh, learned counsel appearing for the appellant insurance company as well as Mr. B. Saha, learned counsel appearing for the original claimant and Mr. S. Bhattacharjee, Page - 11 of 14 learned counsel appearing for the owner of the offending vehicle. Perused the entire record. [17] Mr. Ghosh, learned counsel appearing for the appellant contends that the tribunal has awarded an exorbitant amount of compensation to the claimant which calls for interference in appeal. According to Mr. Ghosh, the claimant could not produce any evidence with regard to his income. Moreover, the amount awarded to him towards pain and suffering is also unreasonable and therefore, the award given by the tribunal deserves reconsideration in appeal. [18] Mr. Saha, learned counsel appearing for the original claimant and cross-objector contends that no amount of compensation has been given to the claimant for loss of future prospect and moreover, his monthly income has been taken to be Rs.5,000/- per month which is far less than the actual income earned by the claimant at the time of accident. Counsel, therefore, urges the Court to enhance the amount of compensation. [19] Mr. S. Bhattacharjee, learned counsel submits that since the liability for payment of compensation has been attributed to the insurance company, the owner has nothing to say in this case. Page - 12 of 14 [20] Dr. Dipti Bikash Roy who was a member of the District Disability Board categorically asserted in his examination in-chief that main bone of the right leg of the victim was fractured which made him paralytic. The doctor opined that it would be very difficult on his part to carry on his occupation as a mason for the rest of his life. For a better appreciation, it would be appropriate to reproduce the statement of the witness which is as follows:- “…..The main bone of the right leg of the victim was fractured and practically he somewhat became paralytic of his right leg and it will be very difficult on his part to perform his duty as a Mason and there is no possibility of the patient to be cured in future.” [21] In his cross-examination, the said witness stated that regular psychotherapic treatment might improve his condition. In that event also, the progress would not cross 20%. [22] Tribunal discussed the evidence of PW-2 and after assuming that the monthly income of the claimant would not be less than Rs.5,000/- per month worked out his loss of income by applying the multiplier of 18 since, the claimant was of 23 years of age at the Page - 13 of 14 time of accident. There is no serious challenge from the side of the claimant with regard to his monthly income guessed by the tribunal. After all, the claimant could not also produce any evidence to prove his monthly income. Therefore, the tribunal resorted to guess work. The conveyance charges and cost of medicine and treatment were worked out by the tribunal on the basis of actual expenditure incurred by the claimant. Therefore, such findings of the tribunal do not call for any interference. Compensation of a sum of Rs.50,000/- for pain and suffering cannot also be said to be unreasonable or exorbitant in the given fact situation. [23] In view of what has been discussed above, I find no ground to interfere with the judgment and award made by the tribunal. As a result, appeal stands dismissed and the judgment and award passed by the tribunal stands affirmed. Resultantly, the cross objection seeking enhancement of compensation also stands dismissed. [24] It appears from the record that pursuant to the order dated 01.10.2021, appellant deposited a sum of Rs.17,16,738/- with the Registry out of which, a sum of Rs.6,96,695/- has been disbursed in favour of claimant Litan Ghosh by transferring the same to his bank Page - 14 of 14 account in pursuance of the order dated 01.12.2021 and a sum of Rs.10,45,043/- has been invested in a fixed deposit in the High Court Branch of UCO Bank in the official account of the Registrar General. Since the appeal has been dismissed, the said amount of Rs.10,45,043/- along with interest accrued thereon may now be withdrawn and invested in a term deposit for a period of 5 years in any nationalized bank in the name of claimant, Litan Ghosh and the monthly interest generated therefrom may be released to the claimant by depositing the same in his SB account. [25] In terms of the above, the appeal stands disposed of. Send down the LCR. (S.G. CHATTOPADHYAY), J Sabyasachi G.