Miss. Muslima Khatun vs Oriental Insurance Company Ltd.

1. Both the appeals are arisen out of award passed by the Motor Accident Claims Tribunal, Bongaigaon in MAC Case No 25/2011 and hence both

the appeals are taken together and being disposed of by this common order.

2. Heard the Ld. counsel Mr. S. Dutta for the appellant and in MAC No. 261/2013 and Mr. S. C. Biswas on behalf of the appellant in MAC No.

117/2017 and they are also respective respondents in the aforesaid cases.

3. Briefly stated the case of the claimant is that on 5.5.2010 at 7 p.m while the claimant Muslima Khatun along with mother waiting for bus at

Rakhadubi under Bongaigaon Police Station, she was knocked down by a motor bike bearing Registration No. As-19/D-3225 by driving the same in

rash and negligence manner, resulting serious injury on her person. She sustained head injury with depressed fracture of skull and immediately she

admitted at the Lower Assam Hospital & Research Centre, Bongaigaon where she was treated from 05.05.2010 to 10.9.2010 and she was incurred

large amount of expenses while carrying such treatment and she is stated to be same 50% disability for the injury she sustained. After recovery, she

claimed for compensation u/s 166 Motor Vehicle Act of Rs. 18, 25,176/-, and preferred the claim petition before the Tribunal and thereafter notice

was issued to the respective driver, owner and insurer of the offending vehicle.

4. All the respondents contested the case and filed their respective written statement denying the allegation. The owner of the vehicle as well as the

driver denied the rash and negligent driving of the vehicle and submitted that vehicle was duly insured with the Oriental Insurance Company Ltd. so

Insurance Company is liable to indemnify the insured.

5. The Tribunal on the basis of the pleading framed the necessary issues as below:

(1)Â Whether the vehicle no. As-19/D-3228 was involved in the accident, if so, whether the accident took place due to rash and negligent driving of

the said vehicle?

(2)Â whether the claimant Miss. Muslima Khatun sustained bodily injuries in Motor Vehicle Accident due to hit by the vehicle No. As-19/D-3228?

(3)Â Whether the claimant is entitled to get compensation, if so, to what extent and by whom it is payable?

6. In the course of the enquiry, the Tribunal examined 3 (three) witnesses produced by the claimant and the opposite party examined no any witness

in support of their case. On careful examination of evidence and oral documentary, the Ld. Tribunal held that the claimant sustained serious injury on

her person due to the rash and negligent driving of the aforesaid vehicle No. As-19/D-3228. Thereafter, on calculation of the quantum, the Court held

that as the victim was a 19 years old at the time of accident so her income was taken as Rs. 120/- per day and calculating the confinement of the

victim for around 5 months while carrying out the treatment, the Court has awarded Rs. 18,600/- for loss of her income. On the basis of medical

document that has been produced by the claimant that she suffered 50% of the disability, the Tribunal was of the view that as per opinion of the

medical officer himself is the injury sustained by the injured is cureable so instead of granting the amount for 50% for such disability to Rs. 3,45,600/-

for loss of dependency, the Tribunal awarded 50 per cent of the said amount that is 1,72,800/- to the claimant for her future treatment. That apart, the

Court has awarded the medical expenses of Rs. 4,90,478/- as per voucher exhibited by the claimant in addition to the said amount. The tribunal has

awarded Rs. 5,000/- under the head of pain and suffering and totally the Tribunal has awarded a sum of Rs. 6,86,878/- with an interest @ of 6% per

annum on the date of filing of the application.

7. The Insurance Company raising the grievances that the quantum of award is on higher side has preferred the present appeal by stating that 50%

disability certificate issued by doctor is not maintainable as the opinion of doctor itself reflects that such injury is curable if the adequate treatment is

provided. Moreso, it is submitted before this Court that the disability certificate given by the medical officer is also not acceptable as there is no

specific findings regarding the 50% disability of the victim. Accordingly it is challenged the award given by the Tribunal is not proper.

8. On the other hand, the claimant also preferred the appeal for enhancement of the award on the ground that the Tribunal has failed to take note of

the serious nature of injury that was sustained

by the victim and has not awarded proper compensation in many heads like loss of earning, pain and suffering, diet and nutrition, transportation,

present medical expenditure, future medical expenditure and other expenditures and has accordingly payed to enhance the amount in proper manner

so as to redress the grievances of the claimant who is young girl, having future and has suffered a lot for such serious injury she sustained.

9. I have considered the rival submission of both the parties and gone through the evidence on record and medical document that has been filed in

course of enquiry. Firstly, it is discernable that the nature of injury is very serious as the victim was of a tender age of 19 years has sustained a brain

injury and has to be hospitalized for long period around 5 (five) months and the opinion of the doctor reflects that she will require further treatment for

her disability.

10. As regards the medical certificate given by the doctor, which is under challenge by the learned counsel for appellant that it was not given in

proper manner is perused. Although I found substance his argument that such a document which is meant for the children below 18 years cannot be

accepted in all such cases while victim is age of 19 years at the time of occurrence but still yet it can be held that only for this technical ground serious

injury of the victim cannot be ignored. It is to be noted that the Tribunal has not accepted the same 50% of disability and has not awarded any amount

taken 50% of the disability of the victim. Other amount of Rs. 1,72,800/-has been awarded under the head of future treatment so the said aspect can

be answered accordingly.

11. On the next, it appears that the claimant had incurred Rs. 4,90,478/- in her treatment which is a major amount that has to be granted by the

Tribunal as per document annexed and the same was granted accordingly so there is not dispute as regard the said amount. It is to be noted that the

amount granted by the Tribunal under the head of pain and suffering of Rs. 5,000/- for sufferings of head injury for around 5 months, appears to be in

very lower side which is adequately to be enhanced in comparison to the nature of injury. Similarly, it is to be noted that the Ld. Tribunal has not taken

into account of other expenses incurred while the victim was admitted for 5 months in the hospital then she might have incurred miscellaneous

expenses like transportation, food and stay of the attendance etc. etc. Similarly, being a student of Higher Secondary at the time of accident, the

claimant was made to suffer unto serious injury for such accident. In that view of the matter, she also to be awarded in the head of loss and amenities

for life. So, this Court is of view that some sort of balance is to be made in the said award as discussed above. Although, the claimant has made a

prayer for under so many heads in her appeal Memo, this Court is of opinion that a reasonable enhancement in certain heads as mentioned above will

met the ends of justice. Accordingly following amount is now been calculated under the different heads:

· Tribunal awarded earlier        : Rs. 6,86,878.00

· After deducting earlier           :       Rs. - 5,000.00

   Total                                      :     Â

 Rs.         6,81,878.00Â

  Now added                   Â

· Pain and suffering                :          Rs. 50,000.00Â

· Loss of amenities in life        :          Rs. 50,000.00  Â

· Miscellaneous expenses        :          Rs. 25,000.00  Â

 Total of  Rs. 8,06,878.00/-

12. Accordingly awarded enhanced amount in the tune of Rs. 1,25,000/- and it has been submitted that the Insurance Company has already paid an

amount of Rs. 4,20,000/- to the claimant, so the remaining amount is required to pay by the Insurance Company within a period of 6 (six) weeks from

today, with an interest of 6 per cent per annum from the date of evidence i.e

14.8.2012. Insurance Company will deposit the remaining amount in the registry after such adjustment, including statutory deposit, if any.

13. With the observations made above, both the appeals stands disposed of. Return the LCR.