PIJUSH KANTI NAG Vs. NATIONAL INSURANCE COMPANY LTD

JUDGEMENT

(1.) Appellant was an advocate practicing in Alipore Court in the district of 24-Parganas (South). On or about May 15, 2002 at about 1.35 p.m. while he was driving his Maruti-800 car and approaching 2 towards Bijon Setu from Kasba side, a taxi coming from the opposite direction from Gariahat suddenly took a U-turn and dashed against the appellant s car on its right side causing substantial damage to the car on the right side. The appellant sustained severe injury. He was admitted in Ruby General Hospital where he had undergone surgery on his leg that got fractured in the accident. It appears that a sum of Rs.82,901.77 was spent on account of medical expense as we find from the documents filed before the Tribunal. He also submitted a disability certificate to the extent of 50% as certified by a doctor who never treated him. Claimant filed all medical papers pertaining to his treatment at Ruby General Hospital including his discharge certificate that however did not speak about any disability. The claimant claimed a compensation of Rs.20,00000/- together with interest at the rate of 12% per annum as against the National Insurance Company Ltd. who was the common insurer in respect of both the vehicles.

(2.) The Insurance Company disowned the liability by contesting the claim. The driver also denied rash and negligent driving. The Tribunal however accepted the victim s version and held that the accident was caused due to contributory negligence and as such the Insurance Company would be obliged to pay 50% of the assessed compensation. The Tribunal did not award any interest on the awarded amount. Tribunal applied multiplier of 11. Pertinent to note, it was a case under Section 166 of the Motor Vehicles Act, 1988 and as such Section 163A or the second schedule appended to the said Act of 1988 would have no application. However, the Tribunal did not commit any illegality in applying the principle enunciated therein that was permissible in law.

(3.) Tribunal considered the Income Tax Return filed by the claimant contemporaneously and considered the net income to be the basis of calculation of compensation. The Tribunal ultimately assessed the compensation at Rs.7.59 lacks and allowed 50% of it considering the contributory negligence that would come to Rs.3.8 lacks. The doctor however assessed the disability to 50%. The Tribunal allowed 40% disability. Hence, the net amount would come to Rs.1.52 lacks. The Tribunal also allowed Rs.50,000/- on account of pain and sufferance as also the loss of income he suffered due to his prolonged absence in Court.