Tapas Das vs National Insurance Company Ltd. and Others

The appellant is aggrieved by an award of the Motor Accidents Claims Tribunal, Alipore dated June 24, 2004 in MACC No. 137 of 2003. He was the claimant. He filed the application in the claims tribunal under s. 166 of the Motor Vehicles Act, 1988 on April 10, 2003. He claimed fault liability compensation. His grievance is that the claims tribunal granted him inadequate compensation.

The appellant''s case was this. On January 29, 2003 at about 1.45 p.m. a motor vehicle No. WB-02P-1270 (a Maruti van) driven rashly and negligently suddenly dashed his motorcycle from behind. In the accident he suffered severe injuries that caused him permanent partial disablement. He spent Rs. 75,000 for treatment. One Swarnabitan of 59 Rai Bahadur Road, Kolkata-700 034 was his employer. His monthly income was Rs. 4,000. The offending vehicle was covered by a valid policy issued by the insurance company. He became entitled to Rs. 3.5 lakh compensation from the owner of the offending vehicle and the insurance company.

The insurance company contested the case by filing a written statement. The owner of the offending vehicle chose not to contest the case. The appellant examined himself as PW1. The doctor who gave opinion that the accident caused him 35% permanent partial disablement was PW2 and an employee of Swarnabitan was PW3. The appellant produced, inter alia, a copy of the FIR, hospital injury report, the opinion of the doctor, a certificate to show his employment and salary, and medical bills. The insurance company did not give any evidence.

Examination-in-chief of PW1 is quoted below:--

"I am the claimant. On 29.1.2003 at about 1.30 P.M. while I was travelling in my scooter being No. WB-01S-5265 and was near Tollygunge Bazar, vehicle No. WB-02P-1270 dashed in the middle portion of my scooter resulting injuries to me. Immediately after the accident I was taken to S.S.K.M. Hospital and thereafter to Netaji Nursing Home where I was medically treated as an indoor patient for about 17 days. Due to the above accident my right leg was fractured. For removing the steel plates, I was again admitted at Netaji Nursing Home. I have filed relevant papers. The above accident took place due to faulty driving of vehicle No. WB-02P-1270. I was aged about 29 years at the time of accident. I am a goldsmith by profession. At the relevant time of accident I was an employee of ''Sarnabitan'' located at 59, Roybahadur Road, Calcutta-34, having a monthly income of Rs. 4000/-. I pray according to the prayers made in my claim application. I have filed some documents as per firisti. Let the copy of FIR, copy of insurance policy, copy of registration certificate, outdoor ticket, copy of injury report of S.S.K.M. Hospital, copy of ration card, copy of voters'' identity card and copy of Admit Card be marked ext.s 1,2,3,4,5,6, 7 and ext.8 respectively after waiving formal proof.

I have already received a sum of sum of Rs. 25000/- in a separate proceeding u/s. 140 of M.V. Act for my accidental injuries. Still now I am feeling pain."

Cross-examination of PW1 is quoted below:--

"It is not correct to suggest that my scooter and the offending maruti van collected face-to-face. At present I earn Rs. 500/- per month. Not a fact that I have not filed any document showing my profession as a goldsmith. Not a fact that I do not feel any pain in my right leg. Not a fact that I do not feel any inconvenience in walking. Not a fact that I do my normal work now. Not a fact that my claim amount is exaggerated."

The appellant prayed for leave to give further evidence on recall. The prayer was allowed and his recall examination-in-chief and cross-examination were as follows:--

"I had to incur a sum of Rs. 1,50,000/- for my medical expense. I am filing medical bills for my treatment. I pay Income-tax.

Cross-examination

I shall adduce the witnesses who had written my medical bills. I have not filed any income-tax return in court for the period 2002-2003."

Examination-in-chief and cross-examination of PW2 are quoted below:--

"I am a senior consultant in general surgery and Orthopaedics now attached to Seva Hospital, Salt Lake. On 20.3.2004,I examined one Tapas Das aged about 36 years with alleged history of injuries in a road traffic accident on 29.1.2003. After perusing the medical papers of S.S.K.M. Hospital and Netaji Nursing Home and x-ray plates and x-ray reports and after clinically examining him, I gave my opinion that the above patient suffered from permanent partial disability to the extent of 35%. This is my report written and signed by me with the attested signature of the patient. Let the report be marked ext.9.

Cross-examination

I did not medically treat the above patient. At the time of my examination I was not attached to Netaji Nursing Home, Kolkata. At the time of my examination of the above patient there were steel plates attached to right tibia of the patient. Not a fact that there is no basis of my assessment of permanent partial disability. I only examined the above patient for one day."

Examination-in-chief and cross-examination of PW3 are quoted below:--

"I am an employee of ''Sarnabitan'', 59, Roybahadur Road, Behala. Tapas Das was/is a regular employee of ''Sarnabitan''. Tapas Das performs his work sometimes in our shop and sometimes at his house. This salary certificate was typed in my presence and signed by Sandeep Mukherjee in my presence. I know the signature of Sandeep Mukherjee. Let the signature of Sandeep Mukherjee be marked ext.10. In this salary certificate I find the monthly salary of Tapas Das to be at the rate of Rs. 4000/-.

Cross-examination

Sandeep Mukherjee is a premises tenant in respect of the premises where ''Sarnabitan'' is located. I have not brought the rent receipt. I do not know whether Sandeep Mukherjee has any licence under Gold Control Act. Not a fact that the salary certificate as produced by me today is a manufactured document. Not a fact that there is no gold shop in the name and style of ''Sarnabitan''. Not a fact that Tapas Das is not an employee of any shop namely ''Sarnabitan''."

The claims tribunal held as follows. The appellant was equally responsible for the accident. The offending vehicle was covered by a valid policy issued by the insurance company. Hence it would be liable to pay the appellant compensation. PW3 tried to prove the salary certificate but failed. The appellant claiming that he spent Rs. 1.5 lakh for treatment and saying that he would examine witness to prove the medical bills, did not examine any witness. The medical bills were not proved.

Although the claims tribunal did not record a finding that the appellant''s monthly income was Rs. 4,000, it granted him compensation for loss of future earnings taking his monthly income as Rs. 4,000. Holding that the appellant was 28 it chose the multiplier 18. It granted him 35% of Rs. 48,000 annual income on the basis that his loss of future earning capacity was 35%. It deducted 50% for his contributory negligence; and granted Rs. 5,000 non-pecuniary damages for pain and suffering.

Mr. Banik appearing for the appellant has submitted as follows. The claims tribunal wrongly held that the appellant was 50% responsible for the accident. The rash and negligent driving of the offending vehicle was proved by the appellant whose testimony was corroborated by the FIR (Ex1). The appellant was entitled to the whole of the compensation. Although the medical bills were submitted, the claims tribunal did not grant any amount for treatment expenses. The appellant was entitled to Rs. 1.5 lakh treatment expenses. A paltry Rs. 5,000 was granted for pain and suffering.

Mr. Das appearing for the insurance company has submitted as follows. The appellant''s testimony of rash and negligent driving of the Maruti van was not corroborated by any other evidence. No eyewitness to the accident was examined. The medical bills were not proved. The doctor giving the opinion never treated the appellant. Testimony of PW3 did not prove the appellant''s employment and salary. The claims tribunal found the appellant equally responsible for the accident. The appellant was not entitled to reimbursement of treatment expenses and damages for loss of future earnings.

Mr. Das has relied on the decisions in Sri Krishna Vishweshwar Hede Vs. The General Manager, K.S.R.T.C., ; A.P.S.R.T.C. and Another Vs. K. Hemalata and Others, ; Minu B. Mehta and Another Vs. Balkrishna Ramchandra Nayan and Another, ; and Raj Kumar Vs. Ajay Kumar and Another, .

PW1''s testimony is that when he was riding his scooter the Maruti van "dashed in the middle portion" of his scooter. He did not testify about the manner in which the accident happened. In his application for compensation verified by him he had, however, said that the Maruti van was proceeding "in a rash and negligent manner endangering human life and safety to others and the offending vehicle suddenly dashed against that victimised Motor Cycle from its behind." The case stated in the application was not the case when PW1 testified in proof of his case.

Analysing the testimony of PW1, the claims tribunal concluded that the appellant was 50% responsible for the accident. Relying on Krishna Vishweshwar and K. Hemalatha, Mr. Das has submitted that since the insurance company accepted the award and paid the compensation, the finding of the claims tribunal on contributory negligence should not be disturbed, especially when it is evident that the appellant failed to prove that the accident happened due to any contribution of the Maruti van.

In reply, Mr. Banik has submitted that PW1''s testimony of the accident was fully corroborated by the FIR (Ex1).

The FIR was not registered on the basis of the appellant''s information. It was registered, evidently, on the basis of the information of one ASI Baban Tiwari. It is true that in the FIR it was stated that the Maruti van was being driven from North to South in a rash and negligent manner endangering human life and safety of others, and that in the process it dashed the appellant''s motorcycle and knocked the appellant down.

ASI Baben Tiwari was not examined as a witness. The information reduced to writing in the formal FIR could be used only to corroborate or contradict testimony of Baban; for things in an FIR can be used only to corroborate or contradict the testimony of the maker thereof. Hence it is wrong to say that the manner of the accident stated in the FIR corroborated the testimony of PW1. It is to be noted that PW1 did not testify about any rash and negligent driving of the Maruti van.

We are, therefore, of the view that Mr. Das is fully justified in assailing the finding of the claims tribunal making the insurance company liable to pay compensation. The appellant failed to prove that the accident happened due to the rash and negligent driving of the offending vehicle. Thus, he could not be granted any compensation.

The accident happened, as claimed by the appellant, and the insurance company is not questioning its truth. But for the reasons stated hereinbefore we are of the view that the appellant failed to prove that it happened due to the rash and negligent driving of the offending vehicle. Hence the question of applying the contributory negligence principle could not arise. The principle would have been applicable only if it was proved that both the appellant and the driver of the offending vehicle were responsible for the happening of the accident.

Besides, there is no evidence of the extent of the appellant''s contribution to the happening of the accident. Hence finding of the claims tribunal that the appellant and the driver of the offending vehicle both were equally responsible is, in reality, based on no evidence. Evidence rather leads to a strong probability that the accident happened due to the appellant''s negligence. He consciously abandoned his case concerning the manner of the accident stated in the application for compensation and then did not testify even following the case stated in the FIR.

We are, therefore, of the view that it was not a case to which the contributory negligence principle was applicable.

Assuming that our foregoing conclusion is wrong, we proceed to examine the appellant''s claim for compensation on the basis that the accident happened due to the rash and negligent driving of the offending vehicle. Hence questions which require examination are whether the appellant is entitled to reimbursement of treatment expenses, damages for loss of future earnings and non-pecuniary damages for pain and suffering.

The appellant testified that he spent Rs. 1.5 lakh for his treatment. He produced the bills, which, however, were not admitted into evidence. He said that he would examine witnesses who would prove the bills. But he did not examine any witness.

The outdoor patients ticket produced by the appellant was marked Ex4. Ex5 which was described as injury report was actually the case history recorded on the basis of the appellant''s statement that he was knocked down by the offending vehicle. In Ex4 it was recorded that x-ray of right leg showed a fracture. The opinion PW2 gave was marked Ex9. PW2 said that he gave the opinion clinically examining the appellant whom he did not treat. From these it can be concluded that the appellant sustained a fracture injury in the accident.

Mr. Banik has very candidly submitted that the medical bills ought to have been proved. Mr. Das has submitted that the appellant''s mere assertion that he spent Rs. 1.5 lakh for treatment or mere production of the medical bills could not prove his claim for reimbursement of treatment expenses. To this, Mr. Banik has submitted that the claims tribunal ought to have proceeded on the basis of guesswork.

The guesswork principle cannot be applied for deciding the treatment expenses reimbursement question in a motor vehicle accident claim case. The application, as was statutorily required, was to be supported with documents showing actual treatment expenses. The appellant did not produce anything with the application. At the trial he merely produced the bills. He did not prove them. To what amount he was entitled could be decided only if the bills or any of them was proved. The claims tribunal could not and now this court cannot grant him reimbursement of any treatment expenses on the basis of guesswork.

The appellant did not give any detail of his claimed amount. He did not give any evidence of loss of earnings during the period of treatment. His testimony was that his monthly income was Rs. 4000. He examined PW3 who testified that he was also an employee of Swarnabitan whose owner prepared the certificate(Ex10) in his presence. He did not testify that the appellant''s monthly salary was Rs. 4,000. In cross-examination he said that the appellant "was/is a regular employee of" Swanabitan.

The certificate (Ex10) stated to have been issued by Swarnabitan''s owner was to the effect that the appellant was working under him as a salesman, and that after the accident he was unable to do his job in the manner he used to do before the accident. The author of the certificate did not testify to prove its contents. The appellant did not testify that he was no longer in employment. His testimony is that he is a goldsmith by profession. In cross-examination he, however, said that at the date he was testifying (June 16, 2004) his monthly income was Rs. 5,00. He testifying that he was an income-tax assessee did not produce any document in proof of his loss of earnings. In fact, he did not give any evidence of loss of earnings.

The doctor (PW2) giving the opinion (Ex9) never treated the appellant. No certificate issued by an appropriate authority was produced. Requirement of an appropriate certificate was stated in Raj Kumar. In any case, even assuming that the accident caused the appellant a 35% permanent partial disablement, it could not of course be concluded that his percentage of loss of earning capacity was also 35%. The percentage of loss of earning capacity could be ascertained, only if evidence of the loss was given. No evidence was adduced. It could even be a case of no loss of earnings.

The question was whether the disablement affected the appellant''s earnings as a goldsmith; for compensation for future loss of earnings could be granted, only if evidence proved that the claimed permanent disablement affected in any manner the appellant''s future earning capacity. The appellant''s consistent case was that he was working in Swarnabitan as a goldsmith. Neither he nor PW3 explained why the owner of Swarnabitan stated in the certificate (Ex10) that the appellant was working under him as a salesman, - a very unusual thing for a goldsmith, a skilled artisan.

The claims tribunal did not record any finding that the claimed permanent partial disablement affected the appellant''s future earning capacity to any extent. Even then it granted him compensation for loss of future earnings on the basis that the claimed disablement affected 35% of his future earning capacity. The claims tribunal also proceeded on the basis that the appellant''s monthly income was Rs. 4,000. There was no basis for all these.

As to non-pecuniary damages, the claims tribunal granted the appellant Rs. 5,000 for pain and suffering. The appellant could get compensation under this head, only if he proved that he sustained the injury in the accident caused by the rash and negligent driving of the Maruti van. We have found that the appellant failed to prove this.

According to the claims tribunal, the appellant was 50% responsible for the accident. We have found that this finding was not based on any evidence. It could be the case that the appellant was responsible for more than 50% and may be even to the extent of 100%. If he was entirely responsible, he could not get any compensation. The appellant, choosing not to give evidence in proof of the negligence of the driver of the Maruti van, could not be granted any non-pecuniary damages. We do not find any reason to grant him such damages.

Although we find that the findings of the claims tribunal cannot be sustained, there is no scope for interfering with the award; for the insurance company accepting the award has not filed any cross-objection. Though it did not file any cross-objection, it was entitled to question the adverse findings given by the claims tribunal, not for inviting this court to set aside the award, but to sustain the award. It is entitled only to contest the findings for preventing the appellant from getting a higher amount of compensation.

We find substance, as noted hereinbefore, in all the contentions of the insurance company, and hence we hold that the appellant is not entitled to any increase in the amount of compensation under any head.

For these reasons, we dismiss the FMA. The tribunal records shall be sent to the tribunal immediately. No costs. Certified xerox.