MACApp. 71/2001 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) This appeal by the claimant is for enhancement of the am ount of compensation awarded by the learned Member, Motor Accident Claims Tribun al, Kamrup, Guwahati vide order dated 22nd June, 2001 passed in MACT Case No.267 /1999, whereby and where-under an amount of Rs.60,000/- (Rupees Sixty Thousand) has been awarded as compensation for the injuries sustained by the claimant in a motor accident occurred on 17th January, 1999, with interest @ 9% per annum fro m the date of filing the application till the date of realization. By the said award, two Insurance Companies, who are the respondent Nos.3 and 5 and are the insurers in respect of the two vehicles bearing registration No.AS-01/C-9781 (bu s) and AS-01/D-0558 (mini truck) have been directed to satisfy the award in equa l proportion. 2. The appellant as claimant has filed an application under Section 166 of the Motor Vehicles Act, 1988 (in short, the Act ) claiming compensation of Rs.4,00,000/- (Rupees Four Lakhs) for the injuries sustained by him contendi ng inter alia that on 17th January, 1999 while he was driving the mini truck bea ring registration No.AS-01/D-0558, another vehicle being bus bearing registratio n No.AS-01/ C-9781 driving in a rash and negligent manner dashed against the min i truck driven by him in front of Changsari Higher Secondary School, as a result of which, the appellant sustained grievous injuries, for which he was hospitali zed for more than 1 (one) month. It has been pleaded in the application filed u nder Section 166 of the Act that because of the injuries sustained, he has suffe red loss of income and also permanent disablement. 3. On receipt of the notices issued, the present respondent Nos.3 a nd 5, the insurers in respect of the aforesaid vehicles contested the proceeding by filing their respective written statements and denying the claim of the clai mants/appellants and putting the claimants to the strictest proof thereof. The owners of the vehicle have not filed the written statement, despite service of n otice. 4. The appellant/claimant in support of the claim has examined 2 (t wo) witnesses including the appellant himself as PW-1, apart from another witnes s, namely Md. Taher Ali as PW-2. Those witnesses, however, have not been cross- examined by any of the respondents. The claimant has also proved the vouchers s howing the expenses towards the medical treatment being Exhibits-1 to 34; the dr iving license as Exhibit-35; the medical certificate issued by the attending doc tor in Gauhati Medical College and Hospital (GMCH) as Exhibit-36; the accident r eport submitted by the Officer-in-Charge of Changsari Police Outpost as Exhibit- 37 and the First Information Report submitted by one Md. Makib Ali, S.I. of Poli ce as Exhibit-38. 5. Neither the owner nor the insurer has adduced any evidence thoug h the insurers have filed their written statements. 6. The learned Tribunal, upon appreciation of the evidences on reco rd, passed the impugned order dated 12th June, 2001 awarding a sum of Rs.60,000/ - with interest as aforesaid. Hence the present appeal. 7. I have heard Mr. SP Deka, learned counsel for the appellant, Mr. A Ahmed, learned counsel appearing for the respondent No.3 and Mr. BK Purkayast ha, learned counsel appearing for respondent No.5. The other respondents have n ot contested the appeal despite service of notice. 8. Mr. Deka, learned counsel for the appellant referring to the dep ositions of the witnesses examined in the proceeding before the learned Tribunal as well as the medical certificate issued by the attending doctor of GMCH (Exhi bit-36) has submitted that the learned Tribunal ought to have accepted the medic al report, wherein it has been certified that the appellant has suffered the dis ability to the extent of 45%. According to the learned counsel, keeping in vie w the nature of injuries sustained by the appellant, the award of Rs.60,000/-, a s awarded by the learned Tribunal is not the just compensation and since the ap pellant, because of the injuries sustained, is unable to pursue his avocation as driver, he is entitled to the compensation as claimed in the claim application. The learned counsel, therefore, submits that the amount of compensation, as aw arded by the learned Tribunal, may accordingly be enhanced. 9. Mr. Ahmed, learned counsel appearing for the respondent No.3, on the other hand, referring to the finding recorded by the learned Tribunal in th e impugned order as well as the evidences on record has submitted that there is no evidence on record to the effect that the appellant because of the injuries s ustained, has suffered permanent disablement incapacitating him from pursuing hi s avocation as driver and as such, the learned Tribunal has rightly awarded the compensation by the impugned order, which requires no interference. 10. Mr. Purkayastha, learned counsel appearing for the respondent No .5 has also submitted that the appellant is not entitled to any further amount a s compensation, more so when he has failed to examine the doctor, who issued the medical certificate being Exhibit-36. It has also been submitted that it i s apparent from the Exhibit-36, medical certificate, that the doctor has not cer tified that the appellant has suffered permanent disablement because of the inju ries sustained in the motor accident. 11. I have considered the submissions of the learned counsel for the appearing parties and also perused the evidences on record, both oral and docum entary. 12. The appellant in support of the claim has examined 2 (two) witne sses, namely the appellant himself as PW-1 and one Md. Taher Ali as PW-2. PW-2, Md. Taher Ali, who is a witness to the occurrence has deposed about the acciden t and also about sustaining the injuries by the appellant in such an accident. According to this witness, there is no negligence on the part of the appellant, who was driving the mini truck. The appellant, who has examined himself as PW-1 has stated that the driver of the bus bearing registration No.AS-01/C-9781, whi ch was standing behind another stationary bus suddenly came to the road and dash ed against the vehicle, which was driven by the appellant. It has also been sta ted that to avoid the accident, the appellant though turned his vehicle towards the left but despite such an effort to avoid the accident, the bus dashed agains t the mini truck thereby causing injuries to the appellant. 13. As noticed above, none of these witnesses have been cross-examin ed by any of the respondents. Such statements of these witnesses, therefore, go unrebutted and unchallenged. 14. It appears from the impugned order dated 22nd June, 2001 passed by the learned Tribunal that a finding has been recorded to the effect that ther e was contributory negligence and the appellant, who was the driver of the mini truck, had also contributed towards the negligence. Such finding of the learned Tribunal is perverse being not based on the evidence on record, as discussed ab ove. 15. The question, which requires determination in the present case, is what would be the just compensation for the injuries sustained by the appella nt in the accident occurred on 17th January, 1999. The factum of accident as we ll as the nature of injuries sustained by the appellant/claimant are not in disp ute. It appears from the evidence on record that the appellant was in hospital for 36 days. He has suffered the fracture injuries of both bone on the right le gs and the attending doctor vide Exhibit-36 certified that such an injury is gri evous in nature and at the time of examination, he has suffered 45% disability. The appellant in his evidence, however, has not stated that because of the inju ries sustained by him, he has permanently been disabled. The doctor attending h im has also not certified to be so. The plea of the appellant that he has suffe red permanent disablement and is unable to pursue his avocation as driver becaus e of the injuries sustained by him, therefore, cannot be accepted. The appellan t, however, as noticed above, was in hospital for 36 days and he has suffered fo r the fracture injuries on the right leg and his disablement at the time of exam ination was found to be 45%. The appellant, therefore, naturally would be entit led to the loss of income for about 2 (two) months, which come to Rs.6,000/- (Ru pees Six Thousand), his monthly wages being Rs.3,000/- (Rupees Three Thousand) p er month. The appellant shall also be entitled to the medical expenses of Rs.19 ,000/- (Rupees Nineteen Thousand), which the appellant has incurred apart from a further amount of Rs.10,000/- (Rupees Ten Thousand) for future medical treatmen t, as it is in the evidence that he has not fully recovered on the date when dep osition was recorded. The appellant over and above would also be entitled to Rs .35,000/- (Rupees Thirty Five Thousand) towards the pain and suffering. The app ellant, therefore, would be entitled to Rs.70,000/- (Rupees Seventy Thousand), w hich amount will carry interest @ 9% per annum from the date of filing the appli cation till the date of realization. 16. In the instant case, the contract of insurance between the respo ndent No.1, the owner of the bus and the respondent No.3 as well as between the respondent No.4, the owner of the mini truck and the respondent No.5 are not in dispute. It has also been found that there was no contributory negligence on th e part of the appellant, who was driving the vehicle bearing registration No.AS- 01/D-0558 (mini truck) and of which the respondent No.5 is the insurer. Though a finding has been recorded by the learned Tribunal relating to the contributory negligence, the National Insurance Company Limited, respondent No.5, has chosen not to challenge the same and has already satisfied the award as per the direct ion issued by the learned Tribunal, i.e. by payment 50% of the amount. 17. That being the position, the enhanced amount of compensation of Rs.10,000/- (Rupees Ten Thousand) with interest @ 9% per annum, as aforesaid, sh all be paid by the respondent No.3, namely, the United India Insurance Company L imited, who is the insurer in respect of the offending vehicle bearing registrat ion No.AS-01/C-9781 (bus). The said amount shall be deposited before the learned Tribunal within a period of 45 (forty-five) days from today. On such depositio n, the amount shall be released in favour of the appellant on being identified b y the learned counsel. 18. The appeal is accordingly allowed to the extent indicated above. No cost. 19. Registry is directed to send down the records forthwith.