Tinkhuma Darlong vs Md. Saibur Rahaman and Others

Deepak Gupta, C.J.

This appeal by the owner-cum-driver of Auto Van No. TR-02-B-1680 is directed against the award dated 27th February, 2012 passed by the learned Member, Motor Accident Claims Tribunal, North Tripura, Kailashahar in Case No. TS(MAC)08 of 2011 whereby the learned Tribunal awarded Rs. 1,21,086/- in favour of the claimant by holding the Auto Van driver liable to pay compensation to the extent of 70%.

The admitted case is that the claimant was driving a motorcycle from Dharmanagar to Kailashahar and one person was sitting as a pillion rider on the motorcycle. There was a head on collision between this motorcycle and Auto Van No. TR-02-B-1680. The claimant suffered injuries and filed the claim petition.

The learned Tribunal with regard to the accident held that the motorcycle dashed on the front side of the Auto Van and came to the conclusion that the accident occurred due to negligence of both the parties. Once he had held while giving this finding that the negligence had occurred due to fault of both the parties he could not have while determining the compensation held that the Auto Van driver was liable to pay 70% because that finding should have been given in the finding regarding negligence itself. I have carefully gone through the evidence and I am of the considered view that both the drivers were equally at fault and, therefore, compensation should be apportioned 50 : 50.

Coming to the question of quantum of compensation the claimant at the time of the accident was 28 years. According to him, he was a cultivator and also doing timber business and earning Rs. 6,000/- per month. The claimant has produced a number of documents regarding his treatment. The documents show that he was originally admitted in the G.B.P. Hospital, Agartala on 26th December, 2009 with history of trauma to right arm, right leg and right knee. The discharge certificate also shows fracture of neck of the fibula(Rt.), fracture of right proximal humerus and the patient was discharged on 27th January, 2010. Therefore, the claimant remained in hospital for exactly one month. The claimant has also produced on record documents to show that he went to the Silchar Medical College and Hospital and to the South City Hospital at Silchar. It is true that the claimant has not proved all the vouchers but the vouchers as proved on record themselves amount to Rs. 42,980/-. This Court can take judicial notice of the fact that some smaller amounts may not have been taken into consideration and therefore, for medical expenses he is awarded Rs. 50,000/-.

The claimant remained in hospital at Agartala for one month. He would have required attendant round the clock. The accident took place in the year 2009. Therefore, the cost of one attendant is assessed at Rs. 250/- per day because the attendants would have also had to live outside their home town, the cost of two attendants works out to Rs. 500/- and for one month the cost of attendants itself comes to Rs. 15,000/-.

Coming to the loss of income I am not in agreement with the learned Tribunal that the loss of percentage of income is 40%. I am also not in agreement that this is only there for five years. The claimant due to the accident is suffering from stiffness in the shoulder and the disability of 40% is obviously in relation to the shoulder and not in relation to the entire body. Therefore, the loss of earning capacity keeping in view the nature of work of the claimant is fixed at 10%. That brings us to the question what should be the income of the claimant. The learned Tribunal has taken the income of the claimant to be Rs. 3,000/- per month. I am of the considered view that even in the year 2009 the income could not be less than Rs. 150/- per day or Rs. 4,500/- per month. The claimant could not have worked for at least for two to three months. Even if the loss of income is taken for two months it comes to Rs. 9,000/-.

As far as future loss of income is concerned, 50% has to be added for future prospects which will make the income Rs. 6,750/- per month. Even if the loss of income is taken to be 10% i.e. Rs. 675/- per month or Rs. 8,100/- per year applying multiplier of ''17'' the award of compensation under this head works out to Rs. 1,37,700/-.

The claimant has been awarded Rs. 25,000/- for pain and suffering which is reasonable.

The claimant has suffered a permanent disability and has not been awarded any amount for loss of amenities and future discomfort in life. Therefore, he is awarded Rs. 15,000/- under this head.

The total compensation is, therefore, assessed at Rs. (50,000 + 15,000 + 9,000 + 1,37,000 + 25,000 + 15,000) = Rs. 2,51,000/- and 50% of that works out to Rs. 1,25,500/- which is almost equal what has been awarded by the learned Tribunal. Though the system of analysis may be different, the amount of compensation is almost identical and therefore, I find no merit in the appeal which is, accordingly, dismissed.

Send down the LCRs forthwith.