High Court of Bombay

Girdhar Brijmohan Maru Vs. Vimal Lalchand Mutha and Ors.

MANU/MH/1607/2019

26.06.2019

Motor Vehicles

Tribunal cannot accept disability certificate without examining Doctor concerned

Present appeal has been filed by the original claimant for enhancement of compensation. He had filed Petition before Motor Accident Claimed Tribunal, for getting compensation of Rs. 3,50,000 for the injuries suffered by him in vehicular accident.

The learned Tribunal has held that, the claimant sustained injuries due to the sole negligence on the part of truck driver and therefore, Respondent Nos. 1 and 2 are the only persons liable to pay compensation joint and severally to the claimant amount of Rs. 75,000 with interest @ 7.5 % per annum from the date of the petition till actual realisation of the entire amount has been awarded. Hence, the present appeal has been filed by the original claimant.

The injuries were sustained by the claimant due to rashness and negligence on the part of truck driver. Therefore, while awarding the compensation the liability has been rightly fixed on Respondent Nos. 1 and 2, who are the owner and insurance company of the offending vehicle. No evidence was led by the insurance company to prove any statutory defence. Under such circumstance, it was the duty of the Member, Motor Accident Claims Tribunal to award just compensation as per the said principles.

The claimant had examined himself and then further examined in all four medical officers to prove his injuries and the treatment that, he had taken. The disability certificate is issued by Civil Surgeon. However, perusal of certificate does not make it clear, as to whether that permanent disability is restricted to particular limb or not and the handwritten part of the same is giving three different injuries. Further, though that disability certificate is given by Civil Surgeon, who can be said to be the Government servant, yet said Civil Surgeon was not examined.

In view of the decision in Rajesh Kumar vs. Raghuveer Singh, Tribunal cannot accept disability certificate without examining the Doctor concerned. Under such circumstance, the further evidence ought to have been led by the claimant that the said disability had affected his earning capacity. Mere statement by the claimant that, he cannot perform work as before is not sufficient under such circumstance. However, that does not estop or preclude him from claiming compensation under other heads. Each of the Doctor has given the details of the treatment that was given to the claimant. He has undergone operations twice which required hospitalization. Under such circumstance, definitely case is made out to grant compensation under those conventional heads. The medical bills have been proved through the doctors.

Further, taking into consideration the fact that he has undergone two operations, he is entitle to get compensation of Rs. 40,000 towards pains and sufferings. In all he was required to be hospitalized for about 15 days and therefore, he would have been looked after by somebody. Under such circumstance, under the head of attendance, it would be just and proper to award amount of Rs. 10,000 to him.

The claimant has produced on record his income tax returns. His occupation was owner of weaving machines. Average of those income tax returns is required to be considered and it would be just and proper to hold that he might have been earning around Rs. 63,000 per annum. In view of fact that, Claimant had undergone two operations for about 6 months and therefore under the head of loss of income, he would get amount Rs. 31,500. Further, as per Exhibit 120, the certificate is given by Doctor that for removal of implant he may require amount of Rs. 25,000. Under such circumstance, this amount is also required to be added in the total amount of compensation. Thus, the total amount of compensation, to which the claimant is entitled to, is Rs. 1,51,500.

The learned Member, MACT was not justified in giving a lump sum amount without any base as compensation. The bifurcations ought to have been given in clear words. The learned Advocate appearing for the appellant has submitted that the interest has been awarded @ 7.5 % per annum, which is on the lower side. The fact that, the petition was filed in the year 1999 and it was decided in 2007. The learned Member, MACT ought to have granted interest @ 9% per annum.

The Judgment and Award passed by Tribunal is hereby set aside to the extent of quantum. The Respondent Nos. 1 and 2 shall pay amount of Rs. 1,51,500 (inclusive of amount of No Fault Liability) to the claimant with interest @ 9% per annum. Appeal is hereby partly allowed.

Relevant

Rajesh Kumar vs. Raghuveer Singh, MANU/SC/7686/2008

Tags : Compensation Enhancement Entitlement

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