Uttam Prodhani vs M/S. Bhagwandas Auto Finance Ltd. And Anr.

Heard Mr. A. R. Agarwala, learned counsel for the appellant and Ms. M. Choudhury, learned counsel for the respondent No. 2.

This appeal is by the claimant against the judgment and award dated 20.06.2016 passed byMACT, Dhubri in MAC Case No. 487/2004.

The claimant Uttam Prodhani sustained injury in a motor vehicle accident on 29/05/2004,involving the vehicle bearing registration No. WB-

25A/4229, owned by respondent No. 1 and insured with the respondent No. 2. The appellant as claimant filed a claim petition before the MACT,

Dhubri and the learned tribunal by the impugned judgment, awarded a compensation of Rs. 19,879/-.

Unsatisfied with the above award, the claimant preferred the instant appeal.

Learned counsel for the appellant submits, that while determining the compensation, learnedtribunal did not take into account the disability suffered

by the claimant as well as the loss of earning as a result of such disability. The learned counsel further contends that the amount awarded by the

tribunal on account of non-pecuniary damages like pain, shock and suffering and other general damages were extremely meagre and sought for

enhancement. The claimant also sought for enhancement of interest.

Claimant stated in his evidence that he sustained fracture of his right patella, which causedrestriction of his movement. In support of the injury,

claimant also adduced documentary evidence, being discharge slip (Ex. 1)Â of the Civil Hospital showing, that he was in hospital for five days and

had crack fracture of right patella. The claimant also produced a disability certificate showing 30% disablement of his right leg. It is also in the

evidence of the claimant, that he was a labourer at the time of the accident and used to earn Rs. 4,000/- per month and because of the injury he lost

his earning. The evidence of the claimant with regard to the injury sustained by him remained unimpeached. Dr. R. N. Chakraborty, who purportedly

issued the disability certificate was not examined. Therefore, the tribunal declined to accept the disability of the claimant, as it was not satisfied with

the genuineness of the disability certificate. Since the doctor was not examined, nor the certificate was issued from any statutory authority, in my

considered view, the learned tribunal rightly rejected the plea of permanent disablement. Be that as it may, the evidence of the claimant, oral as well

as documentary, demonstrated that the claimant sustained fracture of right patella and he was a labourer by occupation, and as such, it is not difficult

to understand, that with such injury, he could not be able to pursue his usual work at least for 3/4 months. Therefore, he will certainly be entitled to

some amount towards loss of earning for that period of four months. Learned tribunal apparently did not take into consideration this aspect of the

matter. No doubt the claimant did not adduce any documentary evidence in support of his income. Since the claimant was a labourer and engaged in

an unorganized sector he could not be expected to adduce documentary evidence of income, and as such, in absence of anything contrary, a

reasonable income of the claimant is required to be assumed having regard to the avocation of the claimant and other ground realities.

Having regard to the occupation of the claimant, his claim, that he was earning Rs. 4,000/-, inmy considered view, cannot be said to be

unreasonable and can very well be accepted for the purpose of determining the loss of earning for the period, the claimant could not work.

Having considered the gravity and nature of the injury, the quantum of award granted by thelearned tribunal on account of pain, shock and suffering

also appears to be extremely meagre and requires to be enhanced.

As laid down by the Apex Court in Raj Kumar â€"VS- Ajay Kumar and Ors. reported in (2011) 1 SCC 343, in a personal injury case, when

permanent disability is not proved, the compensation should be awarded usually under three heads, being the special damages, like medical treatment;

pain, shock and suffering and the loss of earning during the period of treatment.

It is submitted by the learned counsel for the appellant that the claimant was hospitalized forabout 5 days and he had to spent lot of money, but he

could not produce all the documents, as the same were not properly maintained by the claimant being a rustic villager. When the claimant was in

hospital for about five days, as indicated above, it can be understood that besides, the medical expenses, the claimant certainly incurred some amount

towards transportation, nourishing food, attendant etc and as such, he is obviously entitled to some amount to that effect, though no documentary

evidence could be adduced by him.

Having regard to the expenses that might have been incurred by the claimant as incidentalexpenses relating to treatment, medical expenses of the

claimant can at least be assumed as Rs. 6,000/- including the expenses of medicines for which documentary evidence was adduced. Thus, the

claimant shall be entitled to the medical expenses of Rs. 6,000/- in addition to some amount towards pain, shock and suffering as well as the loss of

earning for the period of five months due to the injury.

Accordingly, the enhanced compensation, the claimant is entitled is re-assessed as under :-Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â

Medical Expenses                  = Rs. 6,000/

Loss of Earning                      = Rs. 16,000/-

Pain, Shock and Suffering     = Rs. 50,000/-                             Â

           Total                         = Rs. 72,000/-

The Insurance co. shall satisfy the above award by depositing the same with thejurisdictional tribunal within 6 (six) weeks along with interest fixed

by the tribunal from the date of filing of the claim petition.

The amount already paid by the Insurance Co. shall stand adjusted.