NEW INDIA ASSURANCE CO LTD Vs. SHANKAR CHAKRABORTY

JUDGEMENT

(1.) The insurer is the appellant in an appeal under Section 110D of the Motor Vehicles Act, 1939, challenging the quantum of compensation awarded by the Tribunal. On an application filed under Section 110A of the Motor Vehicles Act by the injured claimant, the Tribunal has awarded a compensation to the tune of Rs. 96,000.

(2.) IT was alleged in the claim petition that the claimant who was twenty -two years old was doing his business and was earning about Rs. 700 per month and on September 23, 1985, at about 1.30 p.m. while he was going on a motor cycle on the extreme left of the road, the mini truck bearing registration No. HRL 4250 being driven in a rash and negligent manner came with high speed and knocked down the applicant who fell down from the motor cycle and sustained compound fracture on his right leg. He was immediately removed to the V. S. S. Medical College Hospital, Burla, where he has undergone operation. Then he was removed to the Nursing Home, Cuttack, still he has not been fully cured.

(3.) THE Tribunal framed three issues and on consideration of the materials placed before him on issue No. 1 came to the conclusion that the accident resulting in the injuries on the applicant took place due to rash and negligent driving of the mini truck. On issues Nos. 2 and 3 which were taken up together, the Tribunal found that the claimant was aged 22 years on the date of the accident and he was earning Rs. 700 per month. While calculating the quantum of compensation, the Tribunal found that the claimant had sustained compound fracture of his right femur with compound comminuted fracture of both bones of the right leg. Further, he had also suffered grievous punctured wounds over the right thigh and one lacerated injury on lateral aspect of his right foot. He had been admitted in the V. S. S. Medical College Hospital, Burla, on September 23, 1985, and was discharged on October 20, 1985, after necessary operation in respect of the compound fracture. Then he was treated in the nursing home byDr. S. Mustaque Ali and there had been fixing up nails on his right leg and plastering of his leg and regular dressing had been advised. He was again admitted in the nursing home from February 6, 1986, to February 13, 1986, and from April 11, 1986, to April 23, 1986, and from July 28, 1987, to August 13, 1987, and the opinion of the doctor is that the efficiency of his right leg was reduced to 25 to 30 per cent. The Tribunal determined the loss of earning capacity for the rest of life and awarded compensation to the tune of Rs. 63,840 and deducted 20 per cent. towards lump sum grant and fixed the same at Rs. 51,072. So far as the medical expenses are concerned, the Tribunal awarded Rs. 24,000. Towards future treatment the Tribunal awarded a sum of Rs. 5,000. For repairing the motor cycle, the Tribunal awarded Rs. 2,000 and towards mental shock, pain, suffering and loss of pleasure, a sum of Rs. 10,000 was awarded. Thus, the Tribunal determined the total compensation at Rs. 96,000. So far as the liability of the insurer is concerned, the Tribunal found that the seizure list indicated that the vehicle had been insured with the New India Assurance Company Ltd. under Policy No. 173708 and even though the claimant's advocate gave a notice for production of the policy in question, the insurer did not make any attempt to produce the same and in fact, the validity of the insurance of the vehicle was not at all challenged in course of cross -examining the claimant's witnesses. Accordingly, the Tribunal directed the insurer to pay the entire compensation in question. The insurer has, therefore, preferred the present appeal challenging the quantum of compensation.