Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 3627 of 2004 Appellant :- Alok Banerjee Respondent :- Avadh Naresh Sharma & Another Counsel for Appellant :- Chandra Keshwar Singh,Neeraj Agarwal,S.N. Pandey
Hon'ble Salil Kumar Rai,J.
1. Heard learned counsel for the appellant and Shri V.C. Dixit, learned counsel for respondent No. 2.
2. The present First Appeal From Order has been filed by the claimant under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') against the judgement and award dated 25.9.2004 passed by Motor Accident Claims Tribunal/special Judge, E.C. Act, Kanpur Nagar (hereinafter referred to as, 'Tribunal') in Motor Accident Claim Petition No. 368 of 2003.
3. The Motor Accident Claim Petition No. 368 of 2003 was filed by the claimant for a compensation of Rs. 3,55,000/- for the injuries allegedly suffered by him on 1.1.2003 in an accident caused due to the rash and negligent driving of Truck No. U.P. 78 N 9309. In his claim petition, the appellant had alleged that due to the accident, he had suffered compound fractures in his right leg. The said vehicle was insured with respondent No. 2, i.e., The New India Assurance Company Ltd. Respondent No. 1 is the owner of the vehicle. In Motor Accident Claim Petition No. 368 of 2003, the respondents filed their written statements denying the claim of the claimant-appellant. In the aforesaid case, the Tribunal framed issues regarding accident and the negligence of the driver of the vehicle, the liability of the Insurance Company, i.e., respondent No.
2 to pay the compensation and the amount of compensation to which the claimant-appellant was entitled.
4. In regard to the accident and negligence of the Driver of the vehicle, the Tribunal recorded a finding in favour of the claimant-appellant and also held that the Insurance Company was liable to pay the compensation to the appellant as the vehicle was insured with respondent No. 2, i.e., the Insurance Company, at the time of the accident. In its judgement and award dated 25.9.2004, the Tribunal held the claimant-appellant to be entitled to a compensation of Rs. 64,000/-. While determining the compensation to be awarded to the appellant, the Tribunal rejected the disability certificate issued by the concerned Chief Medical Officer (hereinafter referred to as, 'C.M.O.') which ostensibly certified that the appellant had suffered 50% disability due to the injuries caused in the accident. The present appeal has been filed pleading that the Tribunal has not awarded just compensation to the appellant and the compensation awarded is on the lower side.
5. It has been argued by the learned counsel for the appellant that while determining compensation, the Tribunal erred in rejecting the disability certificate submitted by the appellant. It has has been argued by the learned counsel for the appellant that in view of the aforesaid illegality committed by the Tribunal, the findings of the Tribunal on issue No. 5 framed to determine the compensation payable to the claimant-appellant is erroneous and the appellant is entitled to an increased compensation.
6. I have considered the submission of the counsel for the appellant and also perused the record.
7. In his claim petition, the appellant had claimed a compensation of Rs. 80,000/- for the medical expenses allegedly incurred by him on the treatment of his injuries suffered in the accident. But the receipts submitted by the appellant before the Tribunal showed that the appellant had incurred only Rs. 24,000/- as expenses for treatment of his injuries. In view of the aforesaid, no illegality was committed by the Tribunal while awarding only Rs. 24,000/- to the appellant for the medical expenses incurred by him for treatment of his injuries. The Tribunal has awarded additional Rs. 30,000/- to the appellant for mental and bodily pain suffered by the appellant due to the injuries and Rs. 5,000/- as loss of income during his treatment as well as Rs. 5,000/- for incidental expenses incurred by the appellant in his treatment. Compensation awarded by the Tribunal under the aforesaid head are just and proper and the counsel for the appellant has not been able to show that the amount is not just.
8. So far as the argument of the counsel for the appellant that the Tribunal had erred in rejecting the disability certificate submitted by the appellant is concerned, a perusal of the records shows that the appellant was admitted in some private Nursing Home named Dev Orthopaedic Centre, Kakadeo, Kanpur for treatment of his injuries. However, the appellant submitted a disability certificate issued by the concerned C.M.O. ostensibly certifying that the appellant had suffered 50% disability due to his injuries. A perusal of the impugned judgement and award dated 25.9.2004 of the Tribunal shows that in his testimony, the appellant as P.W. 1, had stated that the said medical certificate was issued to him even though he had not submitted any certificate or proof regarding his injuries to the Doctor who had issued the disability certificate. The appellant had also testified that he was able to walk properly without any support and was still employed in the same company. It is also evident that the Doctor who had treated the appellant was not produced in evidence to testify the injuries as well as the disability to the appellant due to the said injuries. It is also on record that due to the injuries, the appellant did not suffer any loss of income. It was observed by the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar Another, (2011)
1 SCC 343 that the evidence of the Doctor who treated
the injured or who assessed the disability of the claimant had to be invariably produced in evidence to testify and the disability certificate would not be a proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross- examination with reference to the certificate. The observations of the Supreme Court in para 12 of the aforementioned judgement are reproduced below :-
"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."
9. It is evident that neither the Doctor who treated the appellant nor the C.M.O. who had issued the certificate or the Doctor who had assessed the alleged disability of the appellant were produced in evidence by the appellant. In that view of the matter, the Tribunal has rightly rejected the disability certificate produced by the appellant.
10. There is no error in the findings of the Tribunal. The findings are based on evidence on record and require no interference in the present appeal. The appeal lacks merit and is accordingly dismissed.
Order Date :- 29.11.2018 Anurag/-