District: 24 Parganas (South)
In
the Court of
the Ld. 14th Additional
District Judge at
Alipore
MACC
No. 17 of 2010
Khurshid Ahmed
………….. Applicant
Vs.
Mr. Munna Dusad
………………
Opposite Party No.1
I.C.I.C.I. Lombard General
Insurance Co. Ltd.
…………….
Opposite Party No.2
WRITTEN ARGUMENT ON
BEHALF OF THE
APPLICANT
That the instant claim case has been filed as per provisions
of section 166 of the M.V.Act 1988, by the applicant on behalf of his minor son
namely, Asjad Ahmed @ Ajad Ahmed @ Ashjad Ahmed who was injured in a motor
vehicle accident on 11.09.2009.
The fact, in brief, is that the accident occurred on 11.09.2009
at about 14.00 hrs when the victim was returning from his school along Topsia
road and when he came in front of Sahini Hariana Bangla Hotel the offending
vehicle bearing registration no. WB-41D-2215 (Tata 407) all on a sudden came
over there at an abnormal high speed with rash and negligent manner and dashed
the victim Asjad Ahmed as a result the victim sustained injuries all over his
body specially fracture of his right leg and thigh joint. Immediately after the
accident the victim was removed to M.B.Nursing Home where he admitted on the
same day and discharged on 17.09.2009 but due to pain the victim again admitted
at Amri Hospital on 22.09.2009 and discharged on 10.10.2009 and thereafter due
to dressing the victim was admitted that hospital in several time and lastly he
was admitted to Amri Seba Sadan, Ballygaunge, on 29.10.2009 for skin grafting
and after that operation he was discharged on 1.11.2009. Rash and negligent
driving on the part of the driver of the offending vehicle no. WB-41D-2215
(Tata 407) was the sole responsible for this pathetic accident.
The victim due to this accident received severe injuries all
over the body and also received fracture injury of his right leg and thigh
joint. These injuries are permanent partial disablement within the meaning of
section 142(b) of the M.V.Act – 1988 and which was corroborated by the
disablement certificate issued by Dr. Somsankar Bhattacharya witness of
P.W.5 and which has been marked exhibit-10(a).
In this case the petitioner adduced 6(six) numbers of witness
to prove his case Viz. P.W.1 The father of the victim, P.W.2 Alauddin Mina- eye
witness, P.W.3 Dipankar Das – Employee of M.B.Nursing Home, P.W.4 Somnath
Bandhopadhayae - Employee of Amri Hospital, P.W.5 Dr. Somsankar Bhattacharya issued disablement
certificate, P.W.6 Sri Swarup Kumar Paul-
Employee of Frank Ross Pharmacy.
It appears from the evidence of P.W.1 the father of the
victim who filed this case for grant of compensation on account of injuries due
to his minor son namely Asjad Ahmed sustained injuries in a Motor Vehicle
accident due to medical expences, pecuniary and non pecuniary damages, future
prospect and others and for that he claimed Rs.5, 50,000/-(Rupees Five lacks
fifty thousand) only towards compensation. The victim was the student of class
V at the time of accident and he was aged about 10 years at the time of
accident. Due to this accident the victim suffers his academic carrier. Applicant
filed several documents to prove his case those documents are marked and
exhibited 1 to 16.
Cross examined by O.P.No.2.
No rebuttal evidence.
It appears from the evidence of P.W.2, Eye witness Alauddin
Mina :
The eye witness Alauddin Mina who saw the accident on
11.09.2009, when he was standing near the place of accident and he established
his deposition that one vehicle being no. WB-41D-2215 (Tata 407) dashed the
victim and also who stated in his deposition that the abovenoted vehicle was
the sole responsible for this pathetic accident. He removed the victim to M.B.Nursing
Home with the help of other people. He also established in his deposition that
due to the rash and negligent driving on the part of the driver of the vehicle
being no. WB-41D-2215 (Tata 407) the accident took place.
Cross examined by O.P.No.2.
The opposite party failed to rebut the testimony of the
evidence given by the eye witness especially when the name of the victim is
mentioned in the charge sheet which has been marked exhibit-4.
It appears from the evidence of P.W.3, Dipankar Das –
Employee of M.B.Nursing Home:
He is the in-charge of the administration of the said nursing
home. He stated in his deposition that the victim was admitted his nursing home
on 11.09.2009 and discharged on 17.09.2009 which has been marked exhibit-8 and
he also established the medical bill in respect of the treatment of the victim
of Rs. 34,059/- which has been marked exhibit-9 series.
Cross examined by O.P.No.2.
No rebuttal evidence.
It appears from the evidence of P.W.4, Somnath Bandhopadhayae
- Employee of Amri Hospital:
He is the Executive of Medical records of Amri Hospitals,
Dhakuria. He stated in his deposition that the victim was admitted the Amri
Hospitals, Dhakuria on 22.09.2009 and discharged on 10.10.2009 under the care
of Dr. Srinjay Saha and again the victim was under treatment at Amri Seva Sadan
from 29.10.2009 to 1.11.2009 and which has been marked exhibit-11 and he also
established the total medical bill in respect of the treatment of the victim of
Rs. 2, 74,837/- which has been marked exhibit-11 series and also proved that
the inpatient bill of Rs. 2100/- and he also established the medical bill in
respect of the treatment of the victim which has been marked exhibit-12 and
also proved OPD case sheet marked exhibit 13 series and he also established the
post operation medical bill of Rs. 14,504/- which has been marked exhibit-14
series.
Cross examined by O.P.No.2.
No rebuttal evidence.
It appears from the evidence of P.W.5, Dr. Somsankar Bhattacharya
issued disablement certificate:
He is an orthopedic surgeon. He clinically examined the
victim in his chamber and after perusal the treatment of documents, he issued a
disablement certificate to the extent of 30% and which has been marked exhibit-10(a).
Cross examined by O.P.No.2.
No rebuttal evidence.
It appears from the evidence of P.W.6, Sri Swarup Kumar Paul-
Employee of Frank Ross Pharmacy:
He is an employee of Frank Ross Pharmacy attached to Amri
Hospital. He established the medical bills in respect of the treatment of the
victim of Rs. 30,793/- which has been marked exhibit-16 series.
Cross examined by O.P.No.2.
No rebuttal evidence.
In this case Insurance Company appeared with vakalatnama and
they filed written statement but they did not adduce any evidence on their
behalf to disprove the accident and/or disablement.
So, the evidence of claimant has been unchallenged.
Thus from the documentary and/or oral evidence it is proved
that due to rash/negligent act of the driver of the offending vehicle the
victim received serious injuries on his person and disabled forever.
Moreover, sixteen (16)
documents are lying with the case record. Those are as follows:-
Exhibit 1- voter card of victim
Exhibit 2- birth certificate of victim
Exhibit 3- Affidavit of 1st class magistrate
Exhibit 4- Charge sheet
Exhibit 5- Insurance policy of the offending vehicle
Exhibit 6- Certificate of registration of the offending
vehicle
Exhibit 7- authorize letter
Exhibit 8- discharge certificate of M.B.Nursing Home
Exhibit 9- medical bills of M.B.Nursing Home
Exhibit 10- letter of authorization of Amri Sevasadan
Exhibit 10a- Disablement certificate
Exhibit 12- medical bills of Amri Sevasadan
Exhibit 13- OPD case sheet of Amri Sevasadan
Exhibit 14- Treatment summery of Amri Hospital
Exhibit 15- letter of authority of Frank Ross Pharmacy
Exhibit 16- medical bills of Frank Ross Pharmacy
From the evidence of
P.W.1 to P.W.6 and by the exhibited documents being nos.1 to 16 has been
substantiated that:
1. There was an accident on 11.09.2009.
2. For the said accident the victim, Asjad
Ahmed sustained severe injuries and total Rs.3,
56,293/- medical expenses for his treatment purpose.
3. The vehicle being no. and his drive WB-41D-2215 (Tata 407) was the sole
responsible of the aforesaid accident.
For the evidence of
P.W.1 and documents being nos.1, 2 and 3, it has been substantiated that the
victim was aged about 11 years at the time of accident and he was the student
of class V at the time of accident and due to the above noted pathetic accident
the victim suffer hia academic carrier.
Thus, by virtue of
second schedule of the M.V.Act, 1988 the compensation can be assesses as
under:-
Rs.15, 000/-(notional
income) x 15 (multiplier) x 30 %( disablement of the victim) = Rs.67, 500/-
Total Medical expenses
in respect of the treatment of the victim is Rs.3, 56,293/-
In addition to that
the claimant is also entitled to Rs.1, 00,000/- for pain & suffering,
hardship, frustration & other material loss. So, Applicant is entitled to
get Rs. 5, 23,793/- along with
interest from the date of filing the case till realization as per provision u/s
171 of M.V.Act 1988 as compensation.
In support of the instant case your petitioner does like to
rely upon and to submit decisions passed by Hon’ble Supreme Court of India and
Hon’ble High Courts those are as follows:-
1.
AIR 1995 (S.C.) Page 755 - Different
heads.
2.
ACJ 1999 (S.C.) Page 809 – Medical
bills.
Considering the facts
and circumstances of this instant claim case, and after considering the
documentary and oral evidence and the reported case laws referred, Your Honour
may be pleased to pass an award for Rs.
5,23,793/- in favour of the applicant along with interest from the date of
filling this case till realization in full and costs.
Filed by
(Krisnendu Upadhaya)
Advocate for
Petitioner
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