Hon'ble Anil Kumar Sharma, J.
The appellant has filed this appeal for enhancement of the award dated 31.8.2005 passed by Motor Accident Claims Tribunal/Special Judge (E.C. Act), Etawah in M.A.C. No. 15 of 1997, whereby compensation of Rs.30,000/- have been awarded to the appellant on account of injuries sustained by him in motor accident.
It appears that an accident took place on 9.10.1996 at about 4.00 P.M. in Qasba Auraiya, district Etawah when the appellant was standing on left side of the road he was dashed by Truck No. U.P.78/N-5509 on account of rash and negligent driving of its driver. The appellant suffered grievous injuries. He was taken to Government Hospital, Auraiya but doctor was not available. He was treated by Dr. Katiyar and X-ray of his right leg was taken in which bone was found fractured. Thereafter the appellant got treatment from Dr. P.M. Gadre, Kanpur and also treated by Dr. U.S.Verma, B.I.M.S. Certificate of disability has been filed wherein disability of 40% was noted by the Chief Medical Officer. The appellant filed claim petition claiming compensation of Rs.10,41,000/- against the owners and the insurer of the aforesaid truck. The owners of the truck denied the negligence of their driver and charged the appellant for his own negligence. The Insurance Company contested the claim and stated in its written statement that the appellant has not suffered any fracture in his left leg and he is walking normally. The Insurance Company further claimed that the driver of the truck if not found to possess the valid driving licence they are not liable to indemnify the award.
The claimant examined himself as P.W.1 and also produced P.W.2. He has filed papers regarding medical expenses and has also filed several certificates. The opposite parties no.1 and 2 examined, Shri Raj Narayan Mishra as O.P.W.1 and have filed insurance, whereas opposite party no.3 examined Prem Sonkar as O.P.W.2.
After hearing the counsel for the parties, the learned Tribunal has found that the accident took place due to rash and negligent driving of Truck No. U.P.78/N-5509 by its driver. The appellant sustained grievous injuries. It was further found that the Insurance Company could not prove that the driver of the truck was not having a valid licence. However, it was determined that on the date of the accident offending truck was insured with the opposite party no.3. The learned Tribunal, after perusing the evidence adduced by the claimant with regard to the injury and expenses incurred in the medical treatment, has awarded compensation of Rs.30,000/- together with interest at the rate of 7% per annum. Aggrieved the appellant has come up in appeal.
We have learned counsel for the appellant and perused the impugned award.
Learned counsel for the appellant has vehemently argued that the learned Tribunal has erroneously discarded the permanent disability certificate issued by the Chief Medical Officer while deciding issue no.4 and has awarded meagre amount of compensation. It is further submitted that the appellant has sustained 40% permanent disability but the Tribunal has not awarded any amount for future loss in the income of the appellant.
The Tribunal while deciding issue no.4 has elaborately discussed the documentary evidence filed by the claimant in support of his claim and it was found that the appellant sustained fracture in his right leg. It has referred to the papers relating to the treatment of the claimant and observed that only one prescription of Dr. P.M. Gadre has been filed while several papers of Dr. U.S. Verma, B.I.M.S. and X-ray plates were filed by the claimant.
However, Dr. U.S. Verma, having B.I.M.S. Degree cannot be recognised as Orthopaedic Surgeon. As regards the alleged permanent disability or deformity in right leg of the appellant is concerned, it has been observed by the learned Tribunal that the concerned doctor has not mentioned in his handwriting whether the alleged disability of the appellant was permanent or temporary, but he has simply stated that the disability of the appellant was permanent. The claimant has not examined the doctor before the learned Tribunal.
From perusal of the award, we find that under the directions of the Tribunal on the application filed on behalf of the opposite party no.1 the claimant appeared on 4.11.2004 and the Presiding Officer of the Tribunal has made personal observations in the ordersheet, which are reproduced as below:
"fnukad 4&11&2004 dks vkosnd Jh lq?kj flag U;k;ky; esa mifLFkr gq;sA rRdkyhu ihBklhu vf/kdkjh us muds nksuksa iSjksa dk voyksdu fd;k vkSj ik;k fd izR;{k :i ls dksbZ fodykaxrk] ;Fkk iSj dk Vs Counsel for the appellant raised questions on the veracity of observations of the Tribunal but in the absence of any otherwise evidence or incriminating facts we are unable to accept his contention. If the learned Tribunal has recorded a fact about the physical condition of the claimant incorrectly then it was the duty of the counsel of the claimant to bring such fact in the notice of the learned Tribunal by moving appropriate application and mentioning those facts. In the absence of such application the contention of learned counsel for the appellant cannot be accepted for the fist time in appeal. It was the duty of the claimant to lay down a foundation for controverting the personal observations recorded by the Tribunal in the ordersheet after examining the claimant in the presence of the parties' counsel. The observations made by the learned Tribunal clearly show that the appellant has not sustained any disability what to say of permanent in nature. Even no deformity was found in the leg of the claimant on account of the injuries sustained by him in the said incident. Thus we find that the learned Tribunal for cogent and sound reasons has rightly discarded disability certificate issued by the Chief Medical Officer.
After examining the statement of the claimant the learned Tribunal has observed that being interested witness he has given higher amount of expenses allegedly spent by him in his medical treatment. The claimant has stated before the Tribunal that the doctor did not give any bill for the fees charged by him. He has stated that Rs.40,000-45,000/- were spent in his treatment, even then the Tribunal has awarded Rs.25,000/- for expenses incurred in medical treatment of the claimant. A further sum of Rs.2000/- for pain and sufferings and Rs.3000/- for loss of income during ailment for two months, have also been awarded. The Tribunal has not allowed the interest from the date of institution of the claim petition. The grant of interest is in the discretion of the Tribunal and unless it is shown that the discretion has not been exercised judicially the appellate court should not disturb such discretionary findings of the Tribunal.
For the reasons stated above, we do not find any merit in the appeal, which is liable to be dismissed in limine.
The appeal is accordingly dismissed. No order as to costs.
Date: 9.8.2012/ R.U.