KUNTAL KUNDU Vs. NATIONAL INSURANCE COMPANY LIMITED

JUDGEMENT

(1.) THIS appeal is at the instance of a claimant and is directed against the award dated 25th August, 2004 passed by the Motor Accident Claim Tribunal, third Court, Howrah in M. A. C. C. No. 390 of 2002 thereby disposing of an application under Section 166 of the Motor Vehicles Act by directing the insurance Company to pay a sum of Rs. 3,25,000/- as compensation which is inclusive of Rs. 25,000/- already received by him in a proceeding under Section 140 of the Act.

(2.) BEING dissatisfied, the claimant has come up with the present appeal. Mr Banik, the learned advocate appearing on behalf of the appellant, contends before us that although it has been well established from the materials on record that in view of rash and negligent manner of driving of the offending vehicle, his client was injured and that the extent of permanent disablement has been found to be seventy percent and at the same time, the Tribunal having found that the yearly income of the appellant was Rs. 56,875/- as per income tax return being Exbt.-5 and that he was aged 34 years at the time of accident, the tribunal below erred in law in assessing the amount of Rs. 3,25,000/- as compensation by not following the Second Schedule of the Motor Vehicles Act when the Tribunal found that the offending vehicle was fully responsible for the accident.

(3.) MR Singh, the learned advocate appearing on behalf of the Insurance company has opposed the aforesaid submissions of Mr Banik and has contended that although his client has not preferred any appeal against the award impugned and has already paid that amount, his client has the right to support the ultimate conclusion arrived at by the Tribunal thereby assessing the amount of compensation at Rs. 3,25,000/ -. According to Mr Singh, in this case, the victim had suffered merely fracture and for that reason, he got an amount of rs. 3,25,000/- which was more than sufficient. Mr Singh contends that the medical certificate indicating the disablement to the extent of seventy percent was not admissible in evidence, as the members of the Medical Board, which issued the certificate, did not appear at the witness box to support the conclusion mentioned in the certificate. In other words, Mr Singh disputes the extent of disablement of the claimant.