Prabhas Das vs Dipak Das And Anr

S.G. Chattopadhyay, J

[1] This review petition has been filed by claimant appellant Prabhas Das seeking review of the judgment and order dated 30.06.2021 passed by this Court in MAC App. No.31 of 2020 dismissing the appeal of the review petitioner against the award dated 06.05.2020 delivered by Motor Accident Claims Tribunal No.1, West Tripura, Agartala in case No. TS(MAC) 27 of 2017.

[2] Brief facts necessary for disposal of the case are as under:

Twenty-five years old claimant Prabhas Das, a mason by occupation was travelling in the offending vehicle bearing registration No. TR-02B-2866 from Ashram Palli to Tasanta Road in Manu on 28.07.2016 at about 9.30 am. On the way, he slipped from the speeding vehicle as a result of rash and negligent driving of the said vehicle. Injured claimant was immediately taken to RGM Hospital at Kailashahar in critical condition from where he was referred to AGMC and GBP Hospital at Agartala. After few days of treatment as an indoor patient he was discharged from the hospital. Thereafter, he visited Silchar Medical College and Hospital several times for better treatment. His father, Nitai Das lodged a written FIR with the Officer-in-charge of Kumarghat police station day after the occurrence accusing the driver of the said vehicle of rash and negligent driving and based on his FIR, Manu P.S Case No.2016MNU028 under Sections 279, 338 and 201 IPC was registered and investigation of the case was carried out by Alauddin Majumder, Sub-Inspector of Police. After conducting the whole investigation, the said Investigating Officer submitted charge sheet against accused Dipak Das, owner-cum-driver of the offending vehicle for having committed offence punishable under Sections 279, 338 and 201 IPC and under Section 187 read with Section 134 M.V. Act.

[3] The injured claimant filed a petition under Section 166 of the Motor Vehicles Act before the Motor Accident Claims Tribunal, No.1 at Agartala claiming compensation of a sum of Rs.78,97,000/-.

[4] Notice was issued to the owner-cum-driver of the offending vehicle and the Divisional Manager, Oriental Insurance Company Ltd, Agartala who were impleaded as respondents. They appeared and filed written objections. In his written objection, the owner-cum- driver of the said vehicle pleaded that his vehicle was insured with Oriental Insurance Company Ltd. (respondent No.2) and the insurance policy was in operation on the date of occurrence. It was also pleaded by him that he was possessing valid driving license and his vehicle was also duly registered. All other documents including permit were also in operation. He, therefore, claimed that liability to pay compensation lied with the insurance company.

[5] On behalf of the Oriental Insurance Company (respondent No.2) it was pleaded that claim of the petitioner was exorbitant and its liability to pay compensation was subject to production of a valid insurance policy, valid driving license of the driver of the vehicle, its registration certificate and other necessary documents.

[6] Claimant petitioner led the evidence of three PWs including the Medical Officer who certified his disability as a Member of the District Disability Medical Board. Besides adducing the oral testimony of the witnesses, petitioner relied on as many as 13 documents. Respondent No.1 also got his oral statement recorded at the Tribunal and relied on his driving license, the registration certificate of his vehicle, its fitness certificate and the insurance policy which were marked as Exbts. A,B,C and D respectively.

[7] Having relied on the said evidence, the Tribunal quantified the compensation at Rs.15,56,000/- and awarded the said compensation to the claimant along with 6% annual interest on the said amount from the date of presentation of the petition at the Tribunal till the date of realization. For quantifying the compensation, the Tribunal guessed the daily income of the claimant at Rs.300/- and worked out his monthly income at Rs. (300 x 25) = 7,500/-. Thereafter, Tribunal added 40% of the said amount (Rs.3000/-) towards future prospect of the claimant in terms of the judgment of the Supreme Court in National Insurance Company Limited Vrs. Pranay Sethi and Others; reported in (2017) 16 SCC 680 and monthly income of the claimant was worked out at Rs. (7500 + 3000) = 10,500/- and as such the annual income of the claimant came to be Rs.(10,500x 12)=1,26,000/- which was multiplied by the multiplier of 18 in terms of the table formulated in the judgment of the Apex Court in Sarla Verma (Smt) and Other Vrs. Delhi Transport Corporation and Another; reported in (2009)6 SCC 121 and assessed the loss of future income of the claimant at Rs.22,68,000/-. Since the claimant suffered from 60% disability, his loss of future income was worked out at Rs. (22,68,000 x 60)= 13,60,800/-. Thereafter, an amount of Rs.30,000/- was added by the Tribunal for his actual loss of income as a result of his confinement in hospital and home and after calculating the other expenses borne by him and other losses suffered by him, the Tribunal quantified the compensation as under:

Sl. No.

Heads

Amount

01.

For loss of future income

Rs.13,60,800/-

02.

For loss of actual income

Rs.30,000/-

03.

For medicines

Rs.29,000/-

04.

For transportation charges

Rs.10,000/-

05.

For attendant charges

Rs.26,000/-

06.

For pain and agony

Rs.1,00,000/-

Total :   Rs.15,55,800/-

Rounded off to Rs.15,56,000/-

[8] Aggrieved by and dissatisfied with the said award of the Tribunal, claimant petitioner being appellant filed MAC App.No.31 of 2020 challenging the award of the Tribunal, mainly on the following grounds:

(i) Assessment of compensation made by the Tribunal is not fair and just. Particularly, for his treatment in Silchar Medical College outside the State, the claimant spent a higher amount which was not taken into consideration by the Tribunal.

(ii) Tribunal did not consider the fact that as per the disability certificate the claimant suffered from paralysis in both of his legs and completely lost his capacity to earn as a mason. Considering the extent of disability and the occupation of the claimant, the Tribunal should have taken it as 100% functional disability and allowed compensation accordingly.

(iii) The Tribunal did not also consider the fact that the attendants who accompanied the claimant to various hospitals outside the State also incurred higher expenses for this purpose.

[9] During the course of her arguments in MAC App.No.31 of 2020, Ms. S. Acharjee, learned counsel appearing for the claimant relied on the decision dated 6th November, 2017 of the Apex Court in Ankur Kapoor Vrs. Oriental Insurance Co. Ltd. (Civil Appeal No.17998 of 2017) in which Tribunal awarded Rs. 6,60,000/- to the claimant along with 9% interest for 50% disability which was raised by the High Court to an amount of Rs.8,80,000/- with interest and the Apex Court raised the amount to Rs.22,00,000/- with uniform rate of interest at 8% per annum from the date of presentation of the claim. Counsel argues that in view of the judgment of the Apex Court in Ankur Kapoor(supra), appellant would be entitled to higher amount of compensation.

[10] Having heard the counsel of the parties, this Court on appreciation of the facts presented before it, dismissed the appeal preferred by the claimant with the following observations:

“[9]………………………………………In the case before us, the District Disability Medical Board vide certificate dated 09.02.2017 (Exbt.9) has certified that the claimant appellant suffered from 60% disability, as a result of the accident and paraparesis was diagnosed in both of his legs. Dr. Abhishek Majumder who issued the certificate testified at the Tribunal as PW-2 and stated that physical disability of the appellant would certainly affect his ability to work as a mason. There is no evidence to suggest that the claimant became completely unable to pursue his occupation.

[10] In these circumstances, the award assessed by the Tribunal appears to be just and reasonable and as such, I find no reason to interfere with the said award. Resultantly, the appal stands dismissed. The insurance company (respondent No.2) is directed to deposit the whole amount of compensation at the Tribunal within a period of six weeks from today.

[11] In terms of the above, the appeal is disposed of. Pending application(s), if any, shall also stand disposed of.”

[11] In the review petition against the said judgment of this Court, it has been asserted that it was argued before the Tribunal that the claimant suffered from 100% functional disability from the said vehicular accident which was not considered by the Tribunal. Assertions made by the review petitioner in his petition dated 26.07.2021 are as under:

“5) That, the Petitioner-Appellant also urged upon the Ld. Tribunal below in the original claim case and categorically submitted to consider 100% disablement during the course of argument which is reflected in the judgment of the Tribunal below which runs as follows:-

at paragraph 9(page-6) in the 12th line- “Ld. Counsel, Smti. Sima Acharjee argued that the petitioner is completely bedridden and therefore disability may be taken to be 100%”

6) That, the Petitioner-Appellant beg to most respectfully submit that he is really a 100% disable person. He believed that a further examination by a Medical Board it will find 100% disablement. Such belief was narrated by the Petitioner-Appellant in para (vi) of the Memo of Appeal which runs as follows:-

“(That, the Ld. Tribunal also did not consider that the Appellant Claimant cannot move and is completely bedridden. The Appellant-Claimant believe that in the event of his further examination by the District Disability Board his extent of disability would be increased above 60%. It would appear from the initial injury report dated 16.12.2017 that the injured mainly suffered grievous/serious injury on the spinal cord. It is needless to say that spinal cord (back bone) is the root of all strength/ balance of the body but unfortunately the disablement certificate dated 09.02.2017 shows that only both legs were effected which is bound to mislead anyone as to his nature of disablement serious and grievous injury of the spinal cord is so fatal that the injured is unable even to give a single step without help of 2/3 persons altogether. Such condition of the body of the injured has not been reflected in the disablement certificate dated 09.02.2017 adequately. The injured believes that on the further examination by the Disablement Board will reveal the real truth. It is necessary to note here that the P.W -2 Dr. Abhishek Majumder has categorically stated in his deposition to the effect that the said medical Board will re-examine only after 5(five) years. Further it noted here that practical examination shows his total inability to move without the help 2/3 persons and there is no possibility of any recovery thereof).

7) That, the Review Petitioner most humbly submit that on an appeal by the Petitioner-Appellant the STATE LEVEL APPELLATE BOARD, GOVERNMENT of Tripura, AGMC & G.B.P. Hospital, Agartala, West Tripura vide Certificate No.31 AB/16/2021 dated 19-02-2021 found the appellant 100% disable because of „PARAPLEGIA with severe bladder disability‟ and issued such Disability Certificate duly signed and sealed by the Chairman, Co-opt. Member and Member of the said Board.

8) That, it may be stated here that this disablement Certificate dated 19-02-2021 would obviously supersede the earlier Disablement Certificate issued by District Disability Board dated 09-02-2017 marked as Exhibit 9 by the Ld. Trial Court and therefore, would be replaced/reread with by Disability Certificate dated 19-02-2021.”

[12] Mr. S. Bhattacharjee, counsel appearing for the review petitioner submits that the disability certificate dated 19.02.2021 certifying 100% disability of the petitioner was procured by the claimant petitioner during the hearing of his appeal before this Court, it was submitted before this Court during the pendency of the appeal. Counsel, however, contends that petitioner has been awarded compensation on the basis of 60% disability as certified by the District Disability Medical Board by issuing certificate dated 09.02.2017 [Exbt.9 before the Tribunal]. According to learned counsel, the disability has been reviewed by the State Level Appellate Board and the disability of the claimant has been certified to be 100% under certificate dated 19.02.2021 issued by the State Level Appellate Board. Counsel contends that the claimant petitioner would be seriously prejudiced unless his compensation is enhanced by this Court by reviewing its judgment dated 30.06.2021 on the basis of the certificate issued by the State Level Appellate Board.

[13] Mr. K.C. Bhattacharjee, learned counsel appearing for the insurance company along with Mr. D.C. Saha, learned counsel on the other hand has argued that the Tribunal passed the award on the basis of the disability certificate [Exbt.9] issued by the District Disability Medical Board in which it was clearly stated that the claimant petitioner suffered from locomotor disability (temporary) to the extent of 60% from the accident. Counsel contends that the District Disability Medical Board under the said certificate [Exbt.9] recommended reassessment after 5 years and as such the said certificate issued by the District Disability Medical Board was made valid upto 8th February, 2022. But, before the time came for reassessment, the State Level Appellate Board issued fresh certificate dated 19.02.2021 certifying that the claimant suffered from 100% disability which is not acceptable. Mr. Bhattacharjee, learned counsel of the insurance company submits that at this belated stage petitioner cannot be allowed to seek review of the judgment of this Court on the basis of this document. Counsel further submits that the disability certificate dated 19.02.2021 of the State Level Appellate Board does not state as to why the disability certificate [Exbt.9] issued by the District Disability Medical Board before the Tribunal was found wrong. Counsel, therefore, urges the Court to reject the review petition.

[14] Considered the submissions made by the counsel appearing for the parties.

[15] Apparently, there is no error in the judgment of the Tribunal because the Tribunal decided the matter on 06.05.2020 on the basis of the disability certificate dated 09.02.2017 [Exbt.9] issued by the District Disability Medical Board, North Tripura District. The present disability certificate whereby the State Level Appellate Board has certified that petitioner has suffered from 100% disability has been issued on 19.02.2021 after the judgment and award has been passed by the Tribunal. Since, the petitioner has come out with a genuine document which has certified that he actually suffered from 100% disability from the accident, I am of the view that the claimant petitioner should be given an opportunity to adduce additional evidence with regard to his disability.

[16] In his petition filed under Order XLI Rule 27 CPC in I.A No.01 of 2022, petitioner has stated that he raised the claim of 100% disability before the Tribunal, but the Tribunal did not consider his claim. Petitioner then filed appeal before this Court against the Tribunal’s award and during the pendency of appeal, he approached the State Level Appellate Board of AGMC and GBP hospital, Agartala which examined the petitioner and having gone through required formalities, issued a fresh disability certificate dated 19.02.2021 certifying that as a result of the accident, he suffered from paraplegia and he was declared 100% disabled. Therefore, a fresh enquiry is to be made to ascertain the extent of disability of the petitioner for which evidence is to be recorded. Order XLI Rule 27 CPC provides the circumstances under which additional evidence can be adduced in the Appellate Court. The provision reads as under:

“27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if

—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

[17] Order XLI Rule 28 provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

[18] Order XLI Rule 29 provides that where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.

[19] Obviously, for the purpose of admitting the disability certificate into evidence, members of the State Level Appellate Board who examined the claimant petitioner to ascertain the extent of his disability have to be examined by the Tribunal besides examining any other expert as the Tribunal may consider appropriate. Therefore, this Court is of the view that the matter should be referred to Motor Accident Claims Tribunal, No.1, West Tripura, Agartala which passed the impugned award to take such evidence and send back the matter to this Court. Such evidence shall be confined to the following points:

(i) Under what circumstances the State Level Appellate Board examined the claimant to ascertain the extent of his disability, particularly when in the disability certificate [Exbt.9] issued by the District Disability Medical Board on 09.02.2017, reassessment was recommended only after 5 years.

(ii) Whether the disability certified by the State Level Appellate Board is relatable to the injury suffered by the claimant in the road traffic accident which occurred on 28.07.2016.

(iii) The reasons as to why the State Level Appellate Board disagreed with the assessment made by the District Disability Medical Board, North Tripura in its certificate dated 09.02.2017 [Exbt.9].

[20] The Tribunal may also take the evidence of any other medical expert of AGMC and GBP hospital on the subject for the purpose of ascertaining the extent of disability of the claimant.

[21] Copy of this order be communicated to the Tribunal immediately and copies shall also be furnished to the respective counsel of the parties free of cost. The disability certificate issued by the State Level Appellate Board shall be returned to the petitioner through his counsel immediately and the petitioner is directed to submit the said disability certificate along with a copy of this order before the Tribunal within a period of 3 (three) days for necessary directions of the Tribunal. The Tribunal on receipt of the copy of this order and the original disability certificate of the petitioner issued by the State Level Appellate Board shall issue summons to any or more members of State Level Appellate Board as the Tribunal may consider appropriate and record his/her evidence giving opportunity to the other side to cross-examine the witness. As directed, the Tribunal may also take evidence of any other medical expert of AGMC and GBP hospital.

[22] After recording the evidence, Tribunal shall send it to this Court within a period of 1 (one) moth from today for disposal of the review petition.

In terms of the above, I.A No.01 of 2022 stands disposed of.

List the review petition on 07.12.2022 for final hearing and disposal.