B.P. Katakey, J.@mdashThis appeal by the claimant is for enhancement of the amount of compensation as awarded by the Learned Member, Motor Accident Claims Tribunal, Nalbari in MAC Case No. 287 of 2001.
2. An application u/s 166 of the Motor Vehicles Act, 1988 (''the Act'') has been filed by the present appellant (represented by his father, he being a minor at the relevant point of time) claiming compensation for the injuries sustained by him in a road traffic accident occurred on 27.6.2001 at Palla Road in the district of Nalbari, contending, inter alia, that on that date while he was on his way to attend the Tutorial Class by riding his bicycle, at about 9.30 a.m. he was knocked down by a motor cycle bearing Registration No. AS-01/K 9592, belonging to the present respondent No. 1, as a result of which his left knee got fractured and was immediately shifted to Nalbari Civil Hospital from where he was referred to Guwahati Medical College and Hospital, but was referred in a private nursing home at Guwahati and that he had to spend a considerable amount for his treatment and yet to recover fully. In the claim of said claim application apart from arraying the owner of the vehicle, who was driving the said motor vehicle himself, the insurance company (respondent No. 2 herein) who issued the policy of insurance in respect of the said vehicle has also been arrayed as respondents. Though the owner of the vehicle despite service of notice did not contest the said proceeding, the insurance company contested the said proceeding by filing written statement denying the claim of the claimant and putting the claimant to prove the contents of such claim application.
3. The claimant in support of his contention has examined 6 (six) witnesses, namely, Dr. Jatindra Nath Barman, who examined the claimant in Nalbari Civil Hospital (PW1), Smt. Snehalata Barman, a witness to the occurrence (PW2), Shri Saurabh Jyoti Barman, claimant himself (PW3), Shri Babul Barman, the father of the claimant (PW4), (sic) Nagen Barman, Assistant Sub-Inspector of Police who investigated Nalbari P.S. Case No. 213/2001 registered on the basis of the information relating to the accident (PW5) and Shri Manoj Kr. Sarma, Assistant to Dr. Tulsi Bhatta who operated the claimant for the injuries sustained by him in such accident and treated him (PW6). The claimant through these witnesses has also exhibited a number of documents. The insurance company while declining to cross-examine PWs 1, 2 and 3, however, has cross-examined PWs 4 to 6. A witness has also been examined by the insurance company in support of their claim that the driver did not have a valid driving licence and as such the insurance company is not liable to reimburse the owner in respect of the amount of compensation that may be awarded by the Learned Tribunal. The said witness, however, has not been cross-examined by the claimant.
4. The Learned Tribunal upon appreciation of evidences on record has recorded the finding that the accident occurred on 27.6.2001 at about 9.30 a.m. as alleged in the claim petition, that the claimant was knocked down by the said vehicle on that day driven in a very high speed, who has suffered injury of fracture of petula and was treated for such injuries by the doctor and has not been fully recovered. The Learned Tribunal has also recorded the finding that the claimant has spent Rs. 21,000 towards the medical expenses for treatment of the injuries sustained by him in the said motor accident and he had to suffer loss in his studies as he could not appear in the different examinations and could not secure results as expected, apart from suffering for the pain and agony. The Learned Tribunal having held so has awarded an amount of Rs. 50,000 as compensation, which includes the medical expenditures incurred by the claimant. The Learned Tribunal though in paragraph 14 of the award has recorded the finding that the offending vehicle had a valid insurance coverage on the date of accident, the insurance company has been absolved from the liability on the ground that the owner of the vehicle had no driving licence for driving the motor cycle at the relevant point of time. Hence, the present appeal for enhancement of award of compensation.
5. I have heard Mr. D. Choudhury, the learned Counsel for the appellant. None appears for the respondents despite service of notice. Mr. A. Phukan, the learned Counsel who earlier appeared for the insurance company has submitted before this Court today that he is no longer the counsel for the insurance company and all papers have been taken away from him. The record, however, does not reveal that the insurance company has engaged any lawyer thereafter. The owner of the motor vehicle involved in the accident though engaged the learned Counsel, but he has chosen not to appear before the court today and also on the last occasion.
6. On the basis of the contention of Mr. Choudhury, the learned Counsel for the appellant that the owner of the vehicle served a copy of the cross-objection on 1.9.2003 and in view of the fact that such cross-objection was not found on record, this Court vide order dated 17.2.2009, on which date also the learned Counsel for the owner was absent, directed the registry to verify as to whether any cross-objection has in fact been filed by the owner of the vehicle. The registry has reported that no such cross-objection has been filed, though copy of such cross-objection to be filed may have been served on the learned Counsel appearing on behalf of the appellant on 1.9.2003. In the absence of such cross-objection on record the same naturally could not be considered.
7. Mr. Choudhury, the learned Counsel for the appellant has submitted that it is apparent from the findings recorded by the Learned Tribunal as well as materials available on record that the claimant had to suffer a lot because of the injuries sustained by him in the motor accident involving the motor vehicle belonging to the respondent No. 1, for which he has to spent, apart from Rs. 21,000 towards the medical expenses, a further amount of Rs. 8,000 towards the expenses for carrying the claimant from Nalbari to Guwahati for advance treatment, which has not been awarded by the Learned Tribunal, though the supporting document has been filed. It has further been submitted by the learned Counsel that there being uncontroverted evidence on record, i.e., evidence of PW4, relating to the engagement of a helper to reply the claimant to carry out the day-to-day activity for a period of 1(one) year at the rate of Rs. 1,500 per month, the Learned Tribunal ought to have awarded a further sum of Rs. 18,000 in that respect, which has not been done. The further submission of the learned Counsel is that since the learned tribunal has found that the claimant has suffered immensely and has not fully been recovered and he is entitled to some compensation towards the pain and sufferings, the Learned Tribunal ought to have at least awarded Rs. 1,00,000 with interest from the date of accident till the date of realization. Relating to the finding recorded by the Learned Tribunal that the owner of the vehicle did not have the valid driving licence and thereby absolving the insurance company from reimbursing the owner, it has been submitted by the learned Counsel that the evidence of the DW1 does not conclusively prove that the owner of the vehicle had no valid driving licence at the time of accident. According to the learned Counsel the insurance company even has failed to prove as to what condition of the policy has been violated by the owner of the vehicle namely the insured. According to the learned Counsel since the issuance of the insurance coverage by the (sic) No. 2 in respect of the said vehicle involved in the said accident has not been disputed, the insurance company is liable to pay the compensation that may be passed by this Court.
8. I have considered the submissions of the learned Counsel for the appellant and also peruse the materials available on record.
9. The factum of accident, the involvement of the aforesaid vehicle belonging to the respondent No. 1 in such accident, injuries caused to the appellant in such accident as well as issuance of insurance coverage by the respondent No. 2 in respect of the said vehicle are not in dispute. No appeal has been preferred either by the insurance company or by the owner of the vehicle challenging the findings recorded by the learned Tribunal in the award passed by it on 20.2.2003.
10. The Learned Tribunal has recorded the finding, on the basis of materials available on record which includes the deposition of the witnesses of the claimant that he has suffered the fracture injury of left petula and was initially treated at Nalbari Civil Hospital and thereafter in private nursing home at Guwahati where he was operated upon. The Learned Tribunal, however, while assessing the amount of compensation payable for the injuries sustained, by the claimant did not take into consideration the evidence of PW4, the father of the claimant, relating to the engagement of a helping hand for a period of 1(one) year and has awarded a sum of Rs. 50,000 as a lump sum amount towards pain and suffering, medical expenditures of Rs. 21,000 though a finding has been recorded that the claimant is yet to recover fully from the injuries sustained by him in the said accident.
11. PW3 Shri Saurabh Jyoti Barman, the claimant himself in his deposition before the Learned Tribunal has stated that he had to undergo the treatment for about 2 months and could not pursue his study for about 5 months. This witness has not been cross-examined by the insurance company. PW4 Shri Babul Barman in his deposition has made a categorical statement that his son was under treatment for about 8 months and is not still 100% fit and as a result of the accident his son could not appear in different examinations and also could not do well in the subjects. It has further been stated by this witness that he had to engage one maid-servant for looking after the son and to take care of him as he could not do anything because of the injuries sustained by him for which he has to pay Rs. 1,500 per month for a period of 1(one) year. There is no cross-examination by the insurance company, in respect of such positive statements, though it has cross-examined the said witness. During cross-examination this witness has stated that though the medical expenditure is reimbursable because of his employment in the ASEB, he has not claimed the reimbursement of the expenditure incurred for his son''s treatment. During cross-examination this witness has stated that his son though can ride bicycle now, but not perfectly, due to the defect on his left leg.
12. The evidence of the PW4 relating to the nature of treatment, period thereof and that the injured is yet to recover fully from the injuries sustained, are duly supported by the medical evidence available on record. PW6 who is the Assistant to Dr. Tulsi Bhatta, who treated and operated upon the claimant for the injuries sustained by him at Guwahati, has proved the certificates issued by the doctor being Exhibit-3 to Exhibit-9. The insurance company though cross-examined this witness did not put any question challenging the issuance of such certificates by Dr. Tulsi Bhatta or the contents of such certificates. Exhibit-3 certificate dated 21.7.2001 reveals that the claimant will require long continuing treatment to regain his limb movement and to be able to walk. Exhibit-4 certificate dated 23.4.2002 reveals that the treatment for the injuries sustained by the claimant was continuing and he had weakness and stiffness of the left knee joint and the percentage of the permanent disability has been assessed as 30 per cent. Exhibit-5 is the discharge certificate from the City Heart Hospital, a private nursing home at Guwahati in respect of the claimant, who has been admitted to the said nursing home on 30.6.2001 and released on 2.7.2001 as well as the prescription issued on 21.7.2007. Exhibit-6 is another certificate dated 27.9.2001 issued by the doctor advising rest for the period from 28.6.2001 to 27.9.2001. Exhibits-7, 8 and 9 are the advise slips issued by the doctor on 28.6.2001, 17.8.2001, 5.10.2001 and 27.12.2001 respectively.
13. From the aforesaid evidences on record it, therefore, transpires that the claimant was under treatment of the doctor at least up to 23.4.2002 (as proved vide Exhibit-4) and on that date he did not fully recover from the injuries sustained by him. As discussed above, the unchallenged evidence of PW4 reveals the engagement of a helping hand for a period of 1(one) year at the rate of Rs. 1,500 per month to help the injured claimant to undertake day-to-day activity. The claimant appellant therefore, is entitled to a sum of Rs. 18,000 being the amount spent for engaging a helping hand to help the claimant in doing his day-to-day activities, which has not been awarded by the Learned Tribunal.
14. The claim of the claimant that he has spent an amount of Rs. 8,000 towards the expenditure incurred for carrying the claimant from Nalbari to Guwahati, however, in absence of any proof in that regard cannot be accepted. The claimant as it appears from the aforesaid materials available on record had to suffer a lot, for which he has to be compensated, apart from this entitlement for the expenses towards the medical treatment.
15. In view of the aforesaid discussion, I am of the view that the claimant shall be entitled to a sum of Rs. 18,000 for engaging a helping hand for a period of 1(one) year, as discussed above, apart from Rs. 21,000 as medical expenses. The claimant shall also be entitled to a further sum of Rs. 35,000 towards the pain and suffering, keeping in view the sufferings of the claimant due to the injuries sustained. Thus, the claimant is entitled to a total sum of Rs. 74,000 as compensation. The said amount shall carry interest @, 9% per annum from the date of filing of the claim application till the date of realization. The interest shall be calculated keeping in view the amount, if any, already paid.
16. The next question which requires consideration is whether the insurance company is liable to satisfy the award passed by this Court, in view of the insurance coverage issued by the respondent insurance company. There is no denial of the fact relating to the issuance of insurance coverage by the respondent No. 2 insurance, company in respect of the vehicle in question and validity of the same on the date of accident. The insurance company, as it appears from the materials available on record, has taken the plea that the policy condition has been violated by the insured owner, as at the relevant point of time the owner/driver did not have a valid driving licence. In support of such plea the insurance company examined one witness, namely, Jatin Kalita, an employee in the office of the District Transport Officer, Nalbari. This witness during his deposition has exhibited a register maintained by the DTO''s office as Exhibit-A in respect of the driving licence (private) issued containing the driving licence Nos. 711 to 810 and another register being Exhibit-B in respect of the driving licence (professional) containing the driving licence Nos. 743 to 877. This witness has further stated that the driving licence No. 783/NB/2000 was issued in the name of Dharmaraj Pathak on 27.3.2000. The insurance company, however, has neither produce the copy of the driving licence issued in favour of the insured owner, which according to the insurance company is not a valid driving licence nor produce the copy of the insurance policy to demonstrate that the policy condition stipulated therein has been violated. The Learned Tribunal on the basis of the evidence of DW1 namely Shri Jatin Kalita has recorded the finding that the insured owner had no valid driving licence. The plea of violation of the policy condition having been taken by the insurance company, the burden is on it to prove such violation, which the insurance company has failed to do. The evidence of Jatin Kalita does not lead to the conclusion that the insured owner did not have a valid driving licence on the date of accident.
17. In view of the above, and there being no dispute relating to the (sic) coverage by the respondent No. 2 in respect of the vehicle in question, which was in force on the date of accident, the insurance company is liable to reimburse the owner the amount of compensation awarded in respect of the said accident. The insurance company, therefore, is directed to satisfy the award as passed by this Court with interest as awarded. The amount shall be deposited before the Learned Tribunal, less the amount if any, already deposited, within a period of 45 days from today.
18. The appeal is accordingly allowed to the extent indicated above. The award passed by the Learned Tribunal stands accordingly modified to that extent. No cost.
