PROBIR GHOSH Vs. NATIONAL INSURANCE CO LTD

JUDGEMENT

(1.) THIS Appeal is against the Judgement dated 3rd June, 2004 passed by Sri S. K. Verma, Judge, Motor Accident Claim Tribunal Jalpaiguri in M A C Case No. 28.1 of 2003. The appellant had filed the MAC Case being a claim petition , claiming for compensation of Rs.9,33,260.00 for the motor accident suffered by him. The facts are that on 11th April, 2003 at 9.30 a.m. when the petitioner was standing near a shop in front of Maynaguri Hospital, all of a sudden a vehicle being No. WB 71 - 6312 came in a high speed rashly and dashed a Rickshaw Van, two scooters and suddenly dashed the petitioner for which he sustained severe injury on his body, specially his right leg. As he was unable to move, certain local people rushed to the spot and took him to the Maynaguri Hospital. After first aid , the attending doctor referred him to Jalpaiguri Sadar Hospital. But as the petitioner's condition was extremely serious, he was taken to Paramount Hospital at Siliguri where he remained from 11.4.2003 to 12.4.2003. After that he was brought to Suraksha Nursing Home at Kolkata for further treatment on 12.4.2003. where his operation took place on 13.4.2003, 19.4.2003, 22.4.2003, 24.4.2003, but as the operation did not cure him his right leg was amputated on 25.4.2003 and he was discharged on 12.5.2003.

(2.) THE accident had taken place due to the rash and negligent act of the driver of the offending vehicle. The petitioner had given evidence before the said Tribunal wherein he stated that he was 25 years old" and was engaged in stock business and contract business and used to earn Rs.6,000.00 per month. After his return from Suraksha Nursing Home, he could not walk properly due to the amputation and he had spent Rs. 3,12,000.00 at the said Nursing Home. As he could not work, he prayed for compensation from the National Insurance Company Limited as the offended vehicle bearing No. WB 71 - 6312 was covered by the insurance Policy with the National Insurance Company Limited. This coverage has also been admitted by the owner of the vehicle in his Written Statement. At any event, as the petitioner was suffering financially he filed the claim petition before the Motor Accident Claim Tribunal under Section 166 of the Motor Vehicle Act, giving details of expenses for a total amount of Rs. 9,33,260.00. After hearing all the parties the learned Judge of the said Tribunal after calculating on the basis of the petitioner's income of Rs. 2000 per month came to the decision that the opposite parties had to pay the petitioner Rs. 3,26,400.00 as compensation. The petitioner/appellant has challenged this Award in the instant Appeal as on the basis of the documents , evidence and facts of the case, the compensation awarded should have been Rs. 9,33,260.00 and not the meagre amount awarded. The learned Judge had wrongfully assessed the income of the appellant as Rs. 2,000 per month, when the appellant had shown the Income Tax Return which shows that he earned more than 6000 per month from his business. The medical expenses and even the interest should have been awarded by the learned Tribunal Judge as the petitioner was in extreme financial distress due to the accident suffered by him.

(3.) URGENT xerox certified copy if applied for, be given to the parties expeditiously. <DJG> AMITTALUKDAR.J.</DJG> I have had the advantage of reading the draft Judgment prepared by my learned Sister. I agree with her that the Appeal is liable to be allowed. However, I would like to supplement my views with that of her. The learned Tribunal had come to the conclusion "..........even though several documents have been filed on behalf of the victim. But those documents have not been admitted in evidence as per law and as such no reliance can be put upon those documents............" and in such view of the matter on a random basis, assessed the income at Rs. 2,000.00 per month and applying the multiplier of 17 since the Appellant was 24 years of age; the compensation was worked out to Rs. 4,08,000.00. Out of the same, 20% is deducted considering the 80% disability totaling the amount of compensation to Rs. 3,26,400.00.The documents found from the Lower Court Records, it is true, have not been proved.