Oriental Insurance Company Ltd vs Sri Dipen Chandra Das And 2 Ors

GAHC010132562018



2026:GAU-AS:12775
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

MACApp./639/2018

1.
Oriental Insurance Company Ltd.
A Central Govt. Undertaking, Having Its
Regional Office at Guwahati, Ulubari,
Guwahati 781007 Represented by the
Deputy Manager, Gauhati Regional Office,
Ulubari, Guwahati 781007.


…..Appellant
-Versus-

1.
Sri Dipen Chandra Das
S/O Late Bapu Ram Das,
Village Chatanguri,
P.O. and P.S. Morigaon,
District Morigaon, Assam, Pin 782105

2.
Sri Shyamal Kanti Saha (Owner)
S/O Late Pijush Kanti Saha
Ward No. 8 Ambagan (Tezpur)
P.S. Tezpur District Sonitpur Assam
Pin 784001

3.
Sri Dwipen Kalita (Driver)
S/O Late Lalit Chandra Kalita
Village Mandakata
P.S. Baihata Chariali
MACApp.639/2018 Page 1

District-Kamrup
Assam, Pin 781121
……Respondents


For Appellant Ms. R. D. Mozumdar, Advocate
:

For Respondents Mr. M Talukdar, Advocate
:

Date of Hearing 23.07.2026
:
02.09.2026
Date of Judgment :


HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT AND ORDER

1. Heard Ms. R. D. Mozumdar, the learned counsel for the appellant. Also
heard Mr. M Talukdar, the learned counsel for the respondent/claimant.
2. This Appeal under Section 173 of Motor Vehicle Act, 1988 has been
preferred by the appellant, namely, M/s Oriental Insurance Company
Ltd. impugning the judgment and award dated 21.03.2018 passed by
the Motor Accident Claims Tribunal, Morigaon in MAC (Injury) Case No.
23/2015, whereby the present appellant has been directed to pay a
compensation amount of Rs.27,46,124/- to the claimant/respondent
along with an interest at the rate of 6% per annum.
3. The facts relevant for consideration of this appeal, in brief, are that the
present respondent No. 1/claimant had approached the Motor Accident
Claims Tribunal, Morigaon by filing an application under Section 166 of
the Motor Vehicle Act, 1988, seeking compensation on account of
injuries sustained by him in the road traffic accident, which occurred
on 24.11.2014 at about 12:00 noon on National Highway, in front of
MACApp.639/2018 Page 2

the main entrance gate of Nagaon Paper Mill, Jagiroad. It has been
stated by the present respondent No. 1/claimant, in his application
under Section 166 of the Motor Vehicle Act, 1988 before the Tribunal,
that on the fateful day, i.e., on 24.11.2014, he was going from
Jagiroad towards his house on a motorcycle as a pillion rider. The
motorcycle was having Registration No. AS-01-V-3346, when they
reached in front of the main entrance gate of Nagaon Paper Mill,
Jagiroad, one indigo car bearing Registration No. AS-12-L-6713,
coming from the same direction at a very high speed, hit the said
motorcycle from the back side. As a result of which, both the driver as
well as the pillion rider of the motorcycle fell down. They sustained
injuries on different parts of their body. Immediately, both of them
were taken to Nagaon Paper Mill, Hospital, and from there, they were
referred to Pratiksha Hospital, Guwahati, considering the seriousness
of the injuries sustained by them.
4. The claim case filed by the respondent No. 1/claimant was registered
as MAC (Injury) Case No. 23/2015. The present appellant as well as
the owner and driver of the offending vehicle contested the case by
filing written statements, wherein they denied their liability to
compensate the present appellant on account of the aforementioned
accident. The Motor Accident Claims Tribunal, Morigaon, after going
through the pleadings of both the parties, framed the following issues:
i. Whether the accident took place on 24.11.2014 at about
12:00 noon on the National Highway in front of the main
entrance gate, Nagaon Paper Mill, Jagiroad under Jagiroad
Police Station in the district of Morigaon due to rash and
MACApp.639/2018 Page 3

negligent driving on the part of the driver of the vehicle
bearing registration number AS-12L-6713 (Indica Car)?
ii. Whether the claimant sustained injuries as a result of the
motor vehicular accident that took place on 24.11.2014 at
about 12:00 noon on the National Highway in front of the
main entrance gate, Nagaon Paper Mill, Jagiroad under
Jagiroad Police Station in the district of Morigaon?
iii. Whether the claimant is entitled to get compensation, and
if so, by whom it is payable and to what extent?
5. In support of his case, the claimant examined three witnesses, i.e., he
himself adduced evidence as PW-1 and one eyewitness as PW-2, and
one doctor as PW-3. The Insurance Company did not adduce any
evidence in the said inquiry before the Motor Accident Claims Tribunal.
6. Ultimately, by the judgment and award, which has been impugned in
this appeal, the claim petition filed by the respondent No. 1/claimant
was allowed, and he was awarded compensation in the manner has
already been described in the foregoing paragraphs of this judgment.
7. It is pertinent to mention herein that during the pendency of this
appeal. the Insurance Company/appellant had also filed an application
under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for
allowing the appellant to produce additional evidence at the appellate
stage. It prayed for allowing the appellant to bring on record certain
documents, like RTI reply given by the Officer-in-Charge of Jagiroad
Police Station along with GD Entry No. 687 and 692, pay slip of the
respondent No. 1 and hospital reports given by Medical
Superintendent, Pratiksha Hospital.
MACApp.639/2018 Page 4

8. Ms. R. D. Mozumdar, the learned counsel for the appellant has

submitted that the appellant has also alleged fraud on the part of the
claimant in suppressing some vital documents from the Motor Accident
Claims Tribunal, during the enquiry. As such, she submits that to prove
the allegation of fraud, the documents, which are intended to be
brought on record by way of additional evidence are required to be
placed before the Court. As such, she submits that the application
under Order 41 Rule 27 of the Code of Civil Procedure, 1908 submitted
by the appellant may be allowed. She also submits that the appellant
could not have produced these documents before the Tribunal in spite
of due diligence on their part.
9. She further submits that even from the documents, which are
exhibited by the respondent No. 1, the fraud played upon the Tribunal
is apparent. She submits that the Motor Accident Claims Tribunal,
Morigaon has erred in awarding the compensations to the claimant on
account of loss of earning capacity, without there being any material
on record to suggest that the respondent No. 1/claimant has suffered
from any loss of earning capacity.
10. The learned counsel for the appellant submits that no income
certificate or salary slip has been exhibited by the claimant/respondent
No.1 before the Tribunal to establish that his income, at the time of
accident, was Rs. 35,000/- per month. She submits that apart from
oral testimony, nothing has been brought on record regarding the
income of the respondent No. 1/claimant. She further submits that
though, the claimant/respondent No. 1, while deposing as PW-1 has
deposed that he has applied for voluntary retirement, however, no
documents to that effect could be produced before the Tribunal and
MACApp.639/2018 Page 5

there is no material on record, which indicates that the respondent No.
1 had been allowed to take voluntary retirement and, on that account,
he had suffered any pecuniary loss. She submits that the Tribunal
erred in assessing the loss of earning capacity to the tune of
Rs. 23,10,000/- without there being any material to substantiate the
same on record. She further submits that during his cross-examination,
PW-1 has admitted that after the accident he joined his services, which
itself indicates that he was not released on voluntary retirement and
there was no loss of any earning capacity.
11. The learned counsel for the appellant further submits that the only
evidence on record regarding loss of income is regarding his absence
from service for a period of five months during which period, he was
not paid any salary. However, he has not produced any documentary
evidence to that effect. She further submits that the discharge
certificate, which was exhibited as Exhibit-6 and Exhibit-7 indicates
that the claimant/respondent No. 1 was admitted in the hospital on the
date of accident i.e., 24.11.2014 and he was released there from on
30.11.2014. As such, she submits that there may be loss of income for
only these six days.
12. The learned counsel for the appellant further submits that the
claimant/respondent has committed fraud upon the Tribunal by
suppressing the fact that the injury sustained by him on his leg was
due to an earlier accident, which occurred in the month of June 2014.
She further submits that even on perusal of the discharge and
disability certificate, which is exhibited as Exhibit-41, it appears that
the said certificate was issued as the claimant/respondent No. 1
suffered from locomotive disability on account of shortening and
MACApp.639/2018 Page 6

deformation of both legs following fracture of lower limbs due to RTA.
However, she submits that on perusal of the discharge certificate,
which is exhibited as Exhibit-6, it appears that on 24.11.2014, he was
diagnosed with a fracture spine D12. She also submits that even the
MRI reports, which are exhibited as Exhibit-9(1) and Exhibit-9(2) it
suggests that the claimant sustained burst fracture of D12, as such,
she submits that the injuries sustained by the claimant on 24.11.2014
was only in respect of spine, i.e., he sustained only spinal injuries.
13. She further submits that the discharge certificate exhibited by the
claimant/respondent No.1 as Exhibit-6 also indicate that on
24.11.2014, the doctors while recording the past history of the
ailments of the claimant/respondent No. 1 indicated that one closed
tibia nailing and fibula plating was done on the claimant in the month
of June 2014. She, therefore, submits that the injury sustained by the
claimant on his legs was prior to the accident, which occurred on
24.11.2014.
14. The learned counsel for the appellant further submits that that Exhibit-
6 also indicates that there might not be any injuries due to road traffic
accident as the said exhibit, while recording history of the patient,
indicates that there is an alleged history of fall on that day at about 12
p.m. at Jagiroad, without specifically indicating that the patient
suffered injury in a road traffic accident. She submits that had the
claimant/respondent No. 1 met with an accident on that day, it would
have been clearly recorded in the medical document, which is
exhibited as Exhibit-6. She, therefore, submits that the disability
certificate exhibited as Exhibit-41 and the evidence of doctor to that
effect pertains to injury suffered by the claimant/respondent No. 1
MACApp.639/2018 Page 7

prior to 24.11.2014 and as such, he is not entitled to any
compensation on that account.
15. The learned counsel for the appellant further submits that the Tribunal
has also erred in awarding a compensation amount of Rs. 3,76,124/-
to the claimant against medical expenses. She submits that the
medical bills/prescriptions/vouchers exhibited as Exhibit-9 series and
Ext. 10 series, by the claimant before the Tribunal are all photostat
copies and the claimant has not been able to satisfy the pre-requisite
conditions as mentioned in Section 65 of the Indian Evidence Act,
before adducing the secondary evidence.
16. She submits that though, the claimant has stated that the said
documents were submitted before the Jagiroad Paper Mill Authorities
for allowing the claimant to go on voluntary retirement. However, as
no documents regarding voluntary retirement could be produced by
the claimant/respondent No. 1, there is a probability that he might
have reimbursed the said medical bills from his employer and, as such,
no compensation should be awarded against medical expenses also.
17. She further submits that the medical vouchers and documents
exhibited as Exhibit-9 series and Exhibit-10 series, includes expenses
incurred by the claimant not only for the spinal injuries, which he
sustained on 24.11.2014, but also for the injuries sustained by him in
his earlier accident and, as such, he is not entitled to get
reimbursement regarding all the medical expenditure indicated by the
documents exhibited by him before the Tribunal.
18. In support of her submission, the learned counsel for the appellant has
cited the following rulings:
MACApp.639/2018 Page 8

i. Raj Kumar Vs. Ajay Kumar & Another reported in 2011(1)

SCC 343
ii. United India Insurance Co. Ltd. Vs. Rajendra Singh and
Ors. reported in AIR 2000 SC 1165
iii. The Oriental Insurance Company Ltd. v. Smti. Lakhi Das
& Ors. order dated 17.07.2018 in MAC Case No. 84/2017
19. On the other hand, Mr. M. Talukdar, the learned counsel for the
claimant/respondent No. 1 has submitted that the Motor Accident
Claims Tribunal has fairly submitted that the claimant/respondent No. 1
was not allowed to go on voluntary retirement and, as such, apart
from the dates, on which he could not attend his duties for which he
was not paid any salary he did not suffer any loss of earnings.
However, he submits that considering the seriousness of injuries
sustained by him and period for which he had to abstain from his
duties as a result of which, he did not get salary for the said period,
his loss of income may be assessed on a lump sum basis taking his
absence from service for a period of one year.
20. He further submits that the Tribunal has assessed the compensation
against conventional head on a much lower side and same is required
to be enhanced though, there is no cross objection on the side of the
claimant. He submits that in a fit case, even in absence of a cross
objection if the Court deems it proper to enhance the compensation
against a particular head, it can do so.
21. In support of his submission, he has cited the ruling of a co-ordinate
Bench of this Court in the case of Oriental Insurance Company
Limited versus T. Khan Bala, and others reported in 2014 2 GLT
MACApp.639/2018 Page 9

855 as well as another ruling of the Apex Court in the case of
Jitendra Khimshankar Trivedi & Ors. Vs. Kasam Daud Kumbhar
& Ors. and others reported in 2015 1 TAC 673 SC .
22. He further submits that no fraud has been played upon the Court as
alleged by the learned counsel for the appellant. He submits that in the
instant case, due to reasons stated in the complaint filed by the son of
the claimant, the FIR could not be filed on the date when the accident
occurred i.e., on 24.11.2014, however, belatedly, the son of the
claimant filed a complaint before the Court of the learned Chief Judicial
Magistrate, Morigoan, which was directed to be registered as an FIR.
23. The learned counsel for the claimant/respondent No. 1 submits that
on the basis of the said FIR, an investigation was initiated and
ultimately, the charge sheet was laid against the driver of the
offending vehicle, which indicates to the truthfulness of the
contentions raised by the claimant in his claim petition. He further
submits that even the owner and driver of the offending vehicle, who
were impleaded as opposite party Nos. 2 and 3 in the MAC Case
No.23/2025 before the Motor Accident Claims Tribunal, Morigaon had
in their written statement admitted the fact of accident. He further
submits that even the present appellant in Ground No. E of the Memo
of Appeal had indicated the fact that the appellant also admits that the
accident occurred on 24.11.2014.
24. He submits that apart from the above, one independent eyewitness
was also examined as PW-2 before the Tribunal, who had deposed
regarding the fact of the accident. He further submits that as regards
the fact that the claimant could not produce original documents before
MACApp.639/2018 Page 10

the Tribunal, reason for the same has been stated by the claimant
while deposing as PW-2 in his oral testimony to the effect that the
originals of the said documents had to be deposited with his
application for voluntary retirement, as such, he could not submit
original documents before the Tribunal.
25. The learned counsel for the respondent No.-1/claimant further submits
that at the time of exhibiting photocopies of the documents exhibited
as Exhibit-87 to Exhibit-115 Exhibit-9 (4 series and 10 series), no
objection was raised by the counsel of the Insurance Company before
the Motor Accident Claims Tribunal, neither the PW-1 was confronted
on this point by the counsel of the Insurance Company, as such, he
submits that at this stage the Insurance Company cannot take that
plea.
26. He further submits that the compensation awarded to the claimant on
account of pain and suffering is only a paltry sum of Rs. 25,000/-,
which is required to be enhanced to minimum Rs. 1,50,000/- on
account of the seriousness of the injury sustained by the
claimant/respondent. He further submits that the compensation
awarded against other conventional heads like transportation, diet and
litigation costs is also required to be enhanced. He, therefore, submits
that the appeal filed by the Insurance Company lacks merit and
deserves to be dismissed.
27. The learned counsel for the claimant/respondent No. 1 further submits
that though, the claimant had met with an accident on earlier occasion
also, however, he again sustained injuries on his both limbs due to the
accident, which occurred on 24.11.2014, which is apparent from
MACApp.639/2018 Page 11

Exhibit-5, which is the Referral Form issued by the Jagiroad Paper Mill
Hospital, which indicates that the claimant suffered from road traffic
accident followed by the injury and restriction of movement of lower
limbs and was advised for orthopedic consultation. The learned
counsel for the respondent further submitted that the injuries
sustained by the claimant on 24.11.2014 had to be treated for a long
period thereafter, and in that regard, he was also operated upon on
04.05.2016, which is indicated by the Exhibit-9 (12). Under such
circumstances, the learned counsel for claimant submits that the
contentions raised by the appellant Insurance Company in this appeal
deserves to be rejected and this appeal may be dismissed with cost.
28. I have considered the submissions made by the learned counsel for
both sides and I have also gone through the materials available on
record including the case record of MAC Case No. 23/2015. I have also
gone through the rulings cited by learned counsel for both sides in
support of their respective submissions.
29. The point to be determined in this appeal is as to whether the Motor
Accident Claims Tribunal has correctly arrived at the conclusion that
the claimant sustained injuries as a result of motor vehicular accident
that took place on 24.11.2014 at about 12:00 noon on the National
Highway in front of the main entrance gate of Nagaon Paper Mill,
Jagiroad under Jagiroad Police Station and has correctly computed the
quantum of compensation payable to the claimant by the present
appellant.
30. Before we consider the rival contentions of the parties in this appeal,
let us first consider the Interlocutory Application (Civil) No. 3783/2018
MACApp.639/2018 Page 12

filed by the appellant in the instant appeal under Order XLI Rule 27 of
the Code of Civil Procedure, 1908, whereby the appellant has prayed
for adducing additional evidence in the appellate stage.
31. It is contended by the appellant in the aforesaid interlocutory
application that the claimant-respondent has played fraud upon the
Court by making false statement as regards to his injury, as well as the
loss of his earning capacity due to the injuries sustained by him in the
accident which occurred on 24.11.2014.
32. The appellant has sought leave to produce a copy of hospital report
given by Medical Superintendent, Pratiksha Hospital as regards
admission of the appellant in the said hospital with regard to some
other accident from 20.06.2014 to 27.06.2014. The appellant has also
sought to produce the RTI reply given by Officer-in-Charge of Jagiroad
Police Station along with GD Entry No. 687 and GD Entry No. 692
dated 24.11.2014. The appellant has also sought to produce the letter
dated 20.08.2018 and 23.08.2018, as well as salary certificate by DGM
(HR & ES), to show that the appellant was getting his salary even after
the accident.
33. It is contended by the learned counsel for the appellant that said
documents could not be produced by the appellant before the Motor
Accident Claims Tribunal, during the inquiry, as the dealing advocate of
the company did not take any steps to adduce evidence on behalf of
company .
34. For the sake of convenience, the provisions contained in Order 41 Rule
27 of the Code of Civil Procedure, 1908 is reproduced here in below: -
“
27. Production of additional evidence in Appellate Court. —
MACApp.639/2018 Page 13

(1) The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But if —
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not
within his knowledge or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to be produced or any
witness to be examined to enable it to pronounce judgment, or for any
other substantial cause, the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission.”

35. On perusal of the aforesaid provisions, it appears that the Appellate
Court may permit additional evidence to be produced only if it falls
within one of the three specific clauses as provided under Order XLI
Rule 27(1) of the Code of Civil Procedure, 1908.
36. Firstly, the Appellate Court may allow additional evidence if the Court
from whose decree the appeal is preferred has refused to admit the
evidence which ought to have been admitted. This principle applies
when a party sought to produce relevant evidence during the original
trial, but the Trial Court wrongfully rejected or excluded it. The second
ground where the appellate court may allow adducing additional
evidence at appellate stage is if the party seeking to produce
additional evidence establishes that, notwithstanding the exercise of
due diligence, such evidence was not within their knowledge or could
not, after the exercise of due diligence, be produced by them at the
time when the decree appealed against was passed. The party must
MACApp.639/2018 Page 14

prove that evidence was unavailable despite best efforts during the
trial. The last contingency under which the Appellate Court may allow
additional evidence is if it requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or for
any other substantial cause.
37. In the instant case, however, the only reason stated by the appellant in
the aforementioned Interlocutory Application is that on receipt of the
judgment, the appellant company came to know that the dealing
advocate did not take any steps to adduce evidence on behalf of
company to prove that the fraud was played upon the court by the
claimant.
38. This Court is unable to accede to the contention of the appellant in the
connected Interlocutory Application that merely because it came to
know that the dealing advocate did not take any steps to adduce
evidence on behalf of appellant company, it may be allowed to adduce
evidence at the appellate stage. It has failed to convince this Court
that, notwithstanding the exercise of due diligence, such evidence was
not within their knowledge or could not, after exercise of due
diligence, be produced by the appellant during the inquiry before the
Motor Accident Claims Tribunal. The contentions raised by the
appellant in the Interlocutory Application itself is apparent to indicate
that there has been lack of due diligence on the part of the appellant
insurance company in producing the documents sought to be produced
at the appellate stage during the inquiry before the Tribunal.
39. The provisions contained in Order XLI Rule 27 of the Code of Civil
Procedure, 1908 may not be used by a party which failed to establish
MACApp.639/2018 Page 15

their case initially before the Tribunal during the appellate proceeding
as a second chance to build a better case. Merely attributing entire
negligence on the engaged counsel of the appellant insurance
company during the inquiry would not absolve the appellant insurance
company to show that, in spite of due diligence, such evidence was
not within their knowledge or could not be produced by them during
inquiry before the Motor Accident Claims Tribunal.
40. Moreover, this Court is also of the considered opinion that there are
sufficient materials on record for this Court to arrive at a just
conclusion and to pronounce a judgment in this appeal. As such, the
prayer of the appellant to allow it to adduce additional evidence at
appellate stage is hereby rejected.
41. Now, let us examine as to whether the Motor Accident Claims Tribunal
was correct in coming to a conclusion that the claimant sustained
injuries as a result of motor vehicular accident which took place on
24.11.2014 at about 12:00 noon on National Highway in front of the
main entrance gate of the Nagaon Paper Mill, Jagiroad, under Jagiroad
Police Station, involving Indigo car bearing registration No. AS-12L-
6713.
42. If we peruse the evidence of PW-1, that is the claimant himself, as well
as the evidence of PW-2, who is the eye-witness to the accident, it
appears that both of them have stated in their testimony that when
the claimant was riding as a pillion in the motorcycle bearing
registration number AS-01B-3346 and reached in front of the main
entrance gate of HPCL, Jagiroad on the National Highway at about
11:00 AM on 24.11.2014, an Indigo car bearing registration number
AS-12L-6713 being driven at a very high speed hit the motorcycle
MACApp.639/2018 Page 16

which was standing by the side of the National Highway to reach the
service road, as a result of which the claimant sustained injuries on his
person and he was immediately brought to HPCL Hospital with the
help of police. This testimony of the claimant (PW-1) as well as the
eye-witness, that is PW-2, could not be demolished by the Insurance
Company during their cross-examination. Further, Exhibit-3, which is
the charge-sheet laid against the driver of the Indigo car bearing
registration number AS-12L-6713 in connection with the accident which
occurred on 24.11.2014, also fortifies the testimony of PW-1 and PW-2
regarding the fact of the accident. Moreover, from Exhibit-5, it appears
that the claimant was referred by HPCL Hospital, Nagaon Paper Mill on
24.11.2014 to the Pratiksha Hospital, Guwahati, and Exhibit-6 indicates
that the claimant was admitted in Pratiksha Hospital on 24.11.2014
with acute pain in lumbar region and numbness and tingling sensation
in both the lower limbs.
43. The fact that in Exhibit-6 it has been stated that the patient had
alleged history of fall at around 12:00 PM at Jagiroad and did not
mention therein that the accident occurred due to road traffic accident,
is itself not sufficient to come to a finding that the fall about which
mention is there in Exhibit-6 is not from the motorcycle at the time of
accident, but it is somewhat other fall. Moreover, when in the
discharge certificate of the Pratiksha Hospital it has clearly been stated
that the complainant was admitted with chief complaints of numbness
and tingling sensation in both extremities with alleged history of road
traffic accident on 24.11.2014, no doubt remains regarding accident
which occurred on 24.11.2014. As such, in view of the uncontroverted
oral testimony of PW-1 and PW-2 as well as the exhibits namely,
Exhibit-2 i.e., the FIR, Exhibit-3 that is the charge-sheet against the
MACApp.639/2018 Page 17

driver of the Indigo car, and Exhibit-6 that is the discharge certificate
from Pratiksha Hospital, there remains no doubt that the claimant
sustained injuries in a road traffic accident involving Indigo car bearing
registration No. AS-12L-6713 on 24.11.2014 in front of the main
entrance gate of the HPCL, Jagiroad.
44. From above material, it is also clear that it was due to rash and
negligent driving of the driver of the Indigo vehicle bearing registration
No. AS-12L-6713 that the accident occurred and, as such, the Tribunal
was right in attributing negligence on the said driver and,
consequently, holding that it is the present appellant which is liable to
pay compensation to the claimant on account of injuries sustained by
the claimant in the motor vehicular accident which occurred on
24.11.2014.
45. Now, let us examine as to whether the Motor Accident Claims Tribunal
was correct in relying on Exhibit-11 Disability Certificate to come to a
finding that the claimant sustained permanent disability to the extent
of 50% due to the injuries sustained by him in the accident which
occurred on 24.11.2014.
46. If we examine the Exhibit-11 Disability Certificate, it appears that the
Disability Certificate was issued on the ground of shortening and
deformity of both the legs following multiple fracture of lower limb due
to road traffic accident. However, if we peruse the Exhibit-6 and
Exhibit-7, which are the discharge certificates issued by Pratiksha
Hospital, it appears that the claimant was diagnosed with compression
fracture spine D12 and no fracture of any lower limb was diagnosed. It
also appears from the said exhibit that earlier, in the month of June
2014, the claimant sustained injuries in his legs and surgical procedure
involving closed tibia nailing and fibula plating was done at that point
MACApp.639/2018 Page 18

of time. Thus, it becomes clear that the injury sustained in his legs was
sustained in the month of June 2014 and not in the month of
November 2014 which pertains to the accident involving Indigo car
bearing registration No. AS-12L-6713. The Disability Certificate, which
is exhibited as Exhibit-11, is only in relation to the fractures sustained
by the claimant in his legs resulting in shortening of his legs, and the
materials on record indicate that such fracture was sustained by him in
the month of June 2014 and not in November 2014 when he met with
the accident involving Indigo car. As such, this Court is of considered
opinion that the Tribunal was wrong in holding that the disability to the
extent of 50% of the claimant was as a result of accident which
occurred on 24.11.2014.
47. Now, let us discuss as to whether the Tribunal was right in holding that
the claimant suffered from loss of earning capacity due to injuries
sustained by him in the motor vehicular accident which occurred on
24.11.2014. From the evidence of claimant (PW-1), it becomes clear
that he was an employee of Nagaon Paper Mill, Jagiroad and was
drawing a salary of Rs. 35,000/- per month. It also appears that
though the claimant has claimed that he applied for voluntary
retirement, however, there is nothing on record to show that he was
allowed to go on voluntary retirement by his employer. Rather, the
learned counsel for the claimant has fairly submitted during argument
in this appeal that he was actually not allowed to go on voluntary
retirement. As such, even after the accident, the claimant continued to
be the employee of Nagaon Paper Mill, Jagiroad and there is no
evidence on record to suggest that he was not given his monthly
salary regularly by the employer. As such, the Tribunal has erred in
coming to the conclusion that claimant suffered from loss of earning
MACApp.639/2018 Page 19

capacity as a result of injuries sustained by him in the accident which
occurred on 24.11.2014. Hence, the claimant is not entitled to get any
compensation against the head "Loss of Earning Capacity".
48. As regards the fact of expenses incurred by the claimant on medical
expenses due to the treatment taken by him for injuries sustained by
him in the accident which occurred on 24.11.2014, he has exhibited
photocopies of medical bills and cash memos as Exhibit-9 series and
Exhibit-10 series. As regards the contention of the learned counsel for
the appellant that the prerequisite conditions as laid down in Section
65 of the Indian Evidence Act were not fulfilled by the claimant before
adducing photocopies of the medical bills and cash memos as Exhibit-9
series and Exhibit-10 series, this Court is of the considered opinion that
the PW-1 has categorically stated in his deposition that since the
original medical bills and cash memos were submitted along with
application for voluntary retirement, same could not be produced
before the Tribunal in original and as such, photocopies of same were
produced. It also appears that on this point no cross-examination was
done by the Insurance Company while cross-examining the PW-1. As
such, this Court is of considered opinion that there was no error on the
part of the Tribunal in relying on the Exhibit-9 series and Exhibit-10
series.
49. However, the claimant will be entitled to compensation against medical
expenses incurred by him only for the injuries which he sustained in
accident which occurred on 24.11.2014 and not for any other injuries.
On perusal of the documents exhibited as Exhibit-9 series and Exhibit-
10 series, it appears that apart from the expenses incurred by him for
treatment of his injuries in the month of November 2014 and
December 2014, he has also exhibited documents for an operation
MACApp.639/2018 Page 20

performed on him on 04.05.2016 for left tibia and fibula fracture,
which was not caused due to the accident which occurred on
24.11.2014. As such, he is not entitled to compensation against some
of the medical bills which he has exhibited before the Tribunal during
the inquiry.
50. On perusal of the Exhibit-9(12), it clearly appears that the claimant
went to the Pratiksha Hospital on 04.06.2016 with complaint of pain in
the area of operation at left ankle, operated on 04.05.2016 for left tibia
and fibula fracture. Thus, it becomes clear that on 04.05.2016 the
claimant was again operated for tibia and fibula fracture. However,
from the testimony of PW-1, it becomes clear that he was operated
only for spinal cord in connection with the injuries, which he sustained
in the accident which occurred on 24.11.2014.
51. On perusal of the medical vouchers, it appears that only Exhibit-10(1),
which is cash memo for Rs. 31,817/-, and Exhibit-10(2), which is the
medical bill for Rs. 1,93,634/-, are for the period of November 2014
and December 2014, which may relate to the treatment of injuries
sustained by the claimant in the accident which occurred on
24.11.2014. All other exhibits are in connection with treatment which
the claimant took for pain and discomfort in his legs in the month of
May 2016 and June 2016, and as the said injuries were not sustained
by the accident which occurred on 24.11.2014, he is not entitled to get
compensation for the said expenses in the claim case which was filed
only with regard to the accident which occurred on 24.11.2014.
52. In view of the discussions made and reasons stated in foregoing
paragraphs, this Court is of considered opinion that the Motor Accident
Claims Tribunal has erred in the impugned judgment and award by
directing the Insurance Company/respondent to pay an amount of
MACApp.639/2018 Page 21

Rs. 27,46,124/- as compensation to the claimant, wherein it took into
consideration the compensation on account of loss of income and it
took into account all the medical vouchers included in Exhibit-10
series.
53. After taking into consideration the conclusions arrived at by this Court
in view of the discussions made in the foregoing paragraphs, the
compensation payable to the claimant by the respondent Insurance
Company, for the injuries sustained by him in the accident, which
occurred on 24.11.2014, involving the Indigo car bearing registration
No. AS-12L-6713, which was insured by the respondent Insurance
Company, is computed as follows: -
a. Compensation on account of medical expenses incurred by the
claimant: Rs. 2,25,451/- [against Exhibit-10(1) and Exhibit-
10(2)]
b. Compensation on account of pain and suffering: Rs. 25,000/-
c. Compensation towards transportation: Rs. 20,000/-
d. Compensation for diet during recuperation: Rs. 30,000/-
e. Litigation cost: Rs. 10,000/-
Total: Rs. 3,10,451/-
(Rupees Three Lakh Ten Thousand Four Hundred Fifty-One Only)
54. The claimant is, thus, entitled to get a compensation amount of
Rs. 3,10,451/- (Rupees Three Lakh Ten Thousand Four Hundred Fifty-
One Only) alongwith an interest @ 9% per annum form the date of
filing of claim petition till realization from the respondent namely, the
MACApp.639/2018 Page 22

Oriental Insurance Company Limited, i.e., the insurer of Indigo vehicle
bearing registration No. AS-12L-6713.
55. The Insurance Company is directed to deposit the aforesaid amount
before the Registry of this Court within a period of 6 (six) weeks from
the date of this judgment. On such deposit being made, same shall be
disbursed to the claimant after proper verification.
56. The statutory deposit of Rs. 25,000/- made by the appellant at the
time of filing this appeal shall be returned back to the appellant after
proper verification.
57. Let the records of MAC Case No. 23/2015 be sent back to the Motor
Accident Claims Tribunal, Morigaon along with a copy of this judgment.
58. This appeal is, accordingly, partly allowed in terms of the observations
made hereinabove.

JUDGE
Comparing Assistant
Amita Sharma
2026.09.03
16:14:12 +05'30'
MACApp.639/2018 Page 23