CIVIL APPEAL 89/2001 on 20 November 2004

CO 9/2007BEFORE

HON’BLE MR. JUSTICE S. TALAPATRAThe appeal has been filed under Section 173 of the Motor Vehicles Act by the Oriental Insurance Company Ltd. against the judgment and award dated 20.11.2004 as passed by the Motor Accident Claims Tribunal, Golaghat, in MACT Case No.89/2001.

In response to that appeal, a Cross Appeal under Order XLI Rule 22 of the Code of Civil Procedure has been filed by the owner of the offending vehicle against the same judgment and award as passed in MACT Case No.89/2001. Both the appeal and the Cross appeal are tied up together for disposal by a common judgment and order.2.In the appeal, the findings as returned by the Tribunal as regards the accident that occurred on 21.03.2001 for rash and negligent driving of the offending vehicle bearing registration No.AS-01/J/7211 (Tata Sumo), which knocked down the claimant namely, Md. Anowar Hussain causing severe bodily injuries and the insurance cover of the offending vehicle by the appellant, Oriental Insurance Company Ltd. are not in dispute by either of the parties. In the Cross Objection also those findings as returned by the Tribunal as stated are not questioned. As such, those findings stand affirmed by this Court and further appraisal thereof is avoided.3.In the appeal, the appellant has resorted to a solitary ground w

3. In the appeal, the appellant has resorted to a solitary ground which is related to the breach of condition of the insurance policy on claiming that at the relevant point of time the offending vehicle was not being driven by a person who had the valid driving licence and as such the insurer, the appellant herein, has no liability to cover the damage as emerged from the accident. In the Cross Objection, the assessment of the compensation without proper consideration of the different components has been challenged as it is stated that prejudice has been caused to the cross objector, the claimant and the amount that has been assessed by the Tribunal is far below the just compensation as contemplatedunder Section 168 of the Motor Vehicles Act.

4. Mr. S.K. Goswami, learned counsel appearing for the appellant, Oriental Insurance Company Ltd. has submitted that since the vehicle was not being driven by a person having valid driving licence, the finding as returned by the Tribunal cannot be sustained. The Tribunal has observed as under :

The owner of the offending vehicle Shri Manash Bordoloi has examined himself as DW.1 and also stated that the vehicle was driven by his brother who had a validdriving licence on the date of accident. But in the cross examination he has stated that he has not obtained permit for carrying passengers in his vehicle. Butas it is not a case of claiming compensation by a passenger but by a passer-by who was knocked from his backside and as such, this piece of evidence elicited in the cross-examination will no way help their case .

Mr. Goswami, learned counsel further submitted that in defiance to the settled position of law a lump sum compensation to the extent of Rs.1,00,000/- has been awarded by the Tribunal. It is not permissible as the Tribunal has to show what are the component those had fallen for its consideration to arrive at such compensation. No doubt, a certain amount of the guess work is permissible for arriving at the compensation, but such guess work must be commensurate to the parameters or the standards of assessing the compensation. He urged this Court to interfere with the said judgment and award.

5. On the other hand, Mr. D. Mazumder, learned counsel appearing for the respondent No.2 as well as for the cross-objector, submitted that the Driving Licence of Bikash Bordoloi, the brother of the cross-objector is available with the record and the said Driving Licence was valid for the period from 20.06.1998 to 19.06.2001. It appears from the record that the said Driving Licence bearing No.F/DIGI/294/PATOG/2001 was produced in the Tribunal and the same was the part of the records. The said Driving Licence was initially issued on 20.06.1998under No.F/2314/NB and later on it was re-numbered on renewal. From the said Driving Licence as produced in the Tribunal, it appears that the person who was driving the vehicle at the relevant point of time as transpired from the depositio n of the DW.2 was having the valid Driving Licence. Therefore, the contention ofthe appellant, the insurer, cannot be sustained on the face of the record.6.There is a commonality in the challenge by both the appellant and the Cross Objector as regards the assessment of the compensation. It is apparently incongruous with the parameters ordinarily applied for assessment of the compensation. Therefore, the assessment is required to be re-visited. 7.The pedestrian, who was hit by the vehicle, has claimed that his

7. The pedestrian, who was hit by the vehicle, has claimed that hismonthly income was Rs.5,000/- from his own shop, but he has lost his earning for the said accident. To support the contention regarding his physical incapacity, the claimant has examined Dr. Dwijen Bordoloi (the PW.2), who has admitted thecertificate at Exbt.-1 and Exbt.-1(1), which the Discharge Certificate.

8. The PW.2 categorically stated that the claimant had suffered serious head injury with semiconscious and multiple injuries and he was under his treatment from 21.03.2001 to 25.03.2001 in the Civil Hospital. The Exbt.-1(1) document is a medical certificate, where the doctor has opined that the claimant had to suffer such injury which has been continuing even after the treatment was completed, but there is no opinion as to the permanent disability. But, from a report of the Institute of Neurological Sciences, Guwahati, it appears that after the accident the injured has become schizophrenic. Schizophrenia is such a disease that would cause life-long pain to anyone. By a bunch of medical advises, theclaimant has proved that he has been treated for the said disease.

9. It appears from the medical records that the claimant was under treatment till 22.05.2002 and he was even taken to the National Institute of Mental Health and Neuro Sciences, Bangalore. He incurred huge medical expenses thereof. 10.It is quite apparent that the claimant was under treatment for about 26 months. If his monthly income is modestly assessed at Rs.3,000/-, definitely he has lost earning of Rs.3,000 x 26 months = Rs.78,000/-. The said amount has to be part of the compensation on account of loss of earning. Added therewith, for medical expenses - Rs.63,000/-, for pain and sufferings - Rs.30,000/-, for future treatment - Rs.20,000/- and for loss of amenities of life another sum of Rs.30,000/-. Thus the total compensation comes at Rs.2,21,000/- (rupees two lakhs twenty one thousand)only. The said sum shall carry interest @ 6% per annum from the date of filing the claim petition till the payment is made.

11. The appellant, Oriental Insurance Company Ltd is directed to paythe awarded sum within a period of 2(two) months from today in the Tribunal, after deducting the sum, if any, already paid. On such deposit, the claimant will be at liberty to withdraw the said amount on proper identification. The statutory deposit as made be returned to the appellant for purpose of making the paymentin the Tribunal within the stipulated time.

12. For the reasons as aforesaid, both the appeal and the connected Cross Objection are disposed of. However, in the fact and circumstances of the case there shall be no order as to cost.

Send down the LCRs forthwith.