ORIENTAL INSURANCE CO LTD Vs. MARTIN KANDUNA

JUDGEMENT

(1.) The Second Motor Accident Claims Tribunal by the impugned judgment and order has awarded a sum of Rs.1, 01,406/- as compensation to respondent No, 1. The entire liability having been saddled on the insurance company, it has filed this appeal challenging the quantum as well as its liability. Respondent No. 1 has also filed cross objection contending that the compensation awarded by the Tribunal is inadequate and he is entitled to a further sum of Rs.93, 600/- as compensation. The appeal and the cross-objection were heard together and are disposed of by this judgment.

(2.) Respondent No. 1 Martin Kandulana was reading in Class V in Baharupada U. P. School and was aged about 11 years at the relevant time. On 8-12-1988 he along with other students and teachers of the said school went to Mandira dam on picnic in the bus bearing registration number OAS 2064 which belonged to respondent No. 2. While they were returning in the night of 9-12-1988, the bus stopped near Bhursipali canal road at about 2.30 a.m. to enable the passengers of the bus to attend call of nature. The passengers got down and after attending the call of nature boarded the bus. It is the allegation of respondent No. 1 that when he was still attending call of nature on the left side of the canal road, the driver started the bus and drove it in rash and negligent manner and dashed against him. As a result of this, he sustained bleeding injuries on his head and scalp and other parts of his body. He was immediately taken to the P. H.C, at Attabira in a jeep and was subsequently removed to V. S. S. Medical College and Hospital, Burla for further treatment. At Burla his head and brain were operated upon and he was treated as an indoor patient till 10.1-1989. His right side has been paralysed after the accident and he lost his power of speech. On the basis of the aforesaid allegations, respondent No. 1 claimed compensation of Rs.1, 95,000/- against appellant and respondent No. 2.

(3.) There is no dispute that on account of the accident which took place on 9-12-1988 at about 2.30 a.m. near Bhursipali canal road, respondent No. 1 sustained injuries. There is also no denial of the fact that the bus OAS 2064 belonging to respondent No. 2 was involved in the accident. On behalf of respondent No. 1 three witnesses were examined. A.W. 1 is his father but not an eye witness to the accident. A.W. 2 was the teacher of the school in which respondent No. 1 was reading and who was one of the passengers who had accompanied the students in the picnic in the bus. He stated that near Bhursipali the bus halted because some boys wanted to attend call of nature. They accordingly got down from the bus. After sometime they got into the bus except respondent No. 1 who was still attending call of nature on the canal road side. This witness testified that the driver suddenly started the bus and drove in a rash and negligent manner dashing against respondent No. 1. As a result of the accident the bus capsized on the left side of the canal. Nothing seems to have been brought out in his evidence to discredit his testimony regarding the manner in which the accident took place resulting in the injuries on the person of respondent No. 1. A.W. 3 is the doctor in Burla Medical College and Hospital who treated respondent No. 1 from 9-12-1988 to 10-1-1989 as indoor patient. Ext. 1 is the discharge certificate issued by him. He testified that he conducted operation on respondent No. 1's head and broken pieces of his frontal bone were taken out. There was brain laceration on the left frontal area which was excised and repair was done and the wound was closed in layers. According to the doctor, the injured had paralysis of his right side of the body with complete loss of speech at the time of his discharge from the hospital. He pointed that respondent No. 1 is completely disabled. It was brought out in his cross-examination that the disablement sustained by him is to the extent of 60 per cent. There is no cogent reason to discredit the testimony of the doctor. The tribunal in view of the said evidence was of the view that 50 per cent earning capacity of respondent No. 1 was affected throughout his life on account of the disablement. Taking the worst view of the matter that he would have worked for at least 30 years as a labourer like his father and would have earned minimum of Rs. 600 / - per month, the tribunal calculated the future loss of earning for 20 years as follows: Rs.600/- x 12 (months) x 30 (years) x 50/ 100 = Rs. 1,08,000/ - 20 per cent of this amount, i.e. Rs. 21,600/- was deducted towards uncertainties of life. Net loss of future earning was worked out at Rs 86,400/ - The tribunal granted a sum of Rs.10, 000/- towards medicines and attendant charges. A further sum of Rs. 5,000/ -was granted on account of the mental shock, pain and sufferings. Thus, the total amount of compensation computed by the tribunal is Rs.1, 01,400/- The tribunal over-ruled the objection of the appellant that its liability is limited to Rs. 50,000/- by holding that the accident was caused to the respondent No. 1 not as a passenger but as a third party for which the liability of the insurer is unlimited.