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Judgment
Heard Mr. H Deb, learned counsel appearing for the appellant, ICICI Lombard General Insurance Company Ltd., as well as Mr. DC Roy, learned counsel appearing for the respondent No.1 and Mr. S Dutta Chowdhury, learned counsel appearing for the respondent No.4. There is no representation for the respondents No.2&3 despite due notice from this Court.
This is an appeal under Section 173 of the Motor Vehicles Act questioning the judgment and award dated 09.10.2013 delivered by the Motor Accidents Claims Tribunal, West Tripura, Agartala in T.S. (MAC) 428/2012. In the memorandum of appeal, the grounds those are agitated are: (i) that the assessment of the monthly income @ Rs.6,000/- is purely on surmises and there is no evidence at all; and (ii) the conversion of 40% disablement to 100% disablement is untenable in the context of the case.
Another important aspect that has emerged in this proceeding is that the respondent No.4 by filing a petition being IA 330/2017 has contended that the disablement certificate based on which the disability of the respondent No.1 was assessed is a forged certificate. The said aspect revealed to the respondent No.4 from the report of the investigator, namely, Sankar Gupta who informed the respondent No.4 after verification from the Member Secretary, District Disability Rehabilitation Centre (DDRC) that the disability certificate under No. DDRC/OH/3858/2013 against ID No.300101404620546 was not found in their official database. Moreover, in the letter dated 30.12.2013 (Anenxure-R1 to the said application) the said Member Secretary revealed that the signature and date of the issuing authorities are not correct. It has been also categorically observed that the disability certificate has no authenticity. In view of this revelation, this Court summoned the said Member Secretary, namely Dr. Dipti Bikash Roy as the Court Witness.
On 19.06.2017 Dr. Dipti Bikash Roy, CW1 has stated as follows:
"I am at present working as the Member Secretary of the District Disability Board, West Tripura, Agartala. I have received the summon from this Court but for my pre-occupation as I was busy in a conference in Sikkim, I could not appear before this Court and I duly communicated my difficulty. The Court on consideration thereof, posted today for my appearance. The certificate that was issued in favour of Kinkar Chakraborty against IDN No.300101404620546 and under Certificate No.DDRC/OH/3858/2013 dated 29.05.2013 has been handed down to me for inspection. Upon inspection, the original certificate, I am clearly of the opinion that such certificate was never issued by the District Disability Board, West Tripura Agartala. This is a fake certificate as the IDN number as shown has never been used by the District Disability Board, West Tripura, Agartala. Our IDN number used to start from 26000‟ [so far the last 5(five) digits are concerned] at the relevant point of time whereas what has been produced by Kinkar Chakraborty bears IDN 30000-30010‟. Moreover, none of the Board Members has signed on the said certificate. I have been also shown the communication dated 30.12.2013 under F. No.20/DDRC/2006/05 [Annexure-R/2 to the IA No 330 of 2017 in MAC APP No.66 of 2014]. The said communication has been issued by me under my signature in the capacity of the Member Secretary, District Disability Board Rehabilitation Centre [the DDRC in short], Shayamalibazar, Agartala. I further clarify that the DDRC and the District Disability Board are for all purposes the same institution. The board is convened only once in a week [every Wednesday]. The records of the District Disability Medical Board are maintained by me. I have been further shown the certificate issued under No. DDRC/OH/8807/2017 dated 22.03.2017 [Annexure-A to the IA No.2 of 2017 in MAC APP 66 of 2014] and on inspection of the said certificate, I say that the certificate has been issued by the District Disability Medical Board in favour of Kinkar Chakraborty showing that he had suffered 82% locomotor disability [permanent in nature]. I have brought one format alike of which was in use at the relevant time. This is the format we used for issuing the certificate for the personal disability. The said format was in regular course issued in respect of one Smt. Anita Sarkar on 29.05.2013 and the same is marked as Exbt.A/1 [MAC APP No.66 of 2014]. But the format that has been submitted in the tribunal by Kinkar Chakraborty, the claimant was never used by the District Disability Board or by the District Disability Medical Board.
Cross-examination by Mr. D.C. Roy, learned counsel for the claimant-respondent
The signature which appears on the certificate resembles with, that of one Dr. Purnendu Debnath. We confirm whether this signature is actually of Dr. Purnendu Debnath or not. We maintain the data base of each and every certificate issued by the District Disability Board. I can produce the copy of data base. On the verification of the said data, I had issued the communication dated 30.12.2013. The subsequent certificate of disability issued on examination of Sri Kinkar Chakraborty is genuine [Annexure- A to the IA No.2 of 2017 in MAC APP No.66 of 2014)."
From the said statement, it is apparent that the DDRC did not issue the said certificate but at the same time he has also stated that the signature appearing on the said certificate resembles with the signature of one Dr. Purnendu Debnath but he could not specifically confirm that signature.
Mr. H Deb, learned counsel appearing for the appellant has submitted that when the authenticity of the said document is seriously doubted by the Member Secretary of the said Board, no evidentiary value can be attached to this disability certificate as relied by the petitioner.
In the midst of the proceeding, the claimant-respondent No.1 has also filed one application for adducing additional evidence. Anenxure- 1 is the certificate issued by the District Disability Medical Board. The said certificate for person with disability under No. DDRC/OH/8807/2017 is dated 22.03.2017. CW1 has confirmed the certificate to be issued by the Board. On comparison, a photocopy of the said certificate is marked as 'A1' for consideration of this Court. In the said certificate the disability has been assessed at 82%.
Mr. Deb, learned counsel for the appellant has correctly stated that when the authenticity of the disablement certificate is questioned even by its authority, no probative value can be read in. But at the same time, when a subsequent certificate has been issued by the said Board which says that the person is still suffering from 82% disability, this Court should not find any difficulty in accepting that observation. But the question which still remains unresolved is whether 82% of the disability can be converted into 100% disability?
Before this Court deals with this issue, this Court is with dismay constrained to observe that a section of persons either attached to the District Disability Medical Board formally or not, are indulging in a practice, obnoxious as it is, has been shaking the credibility of the Board. A time is not far away when the Tribunals would refuse to even take cognizance of their opinion as recorded in the certificate unless the practice as stated is obliterated. Thus, it is high time that the Director of Health Services shall overhaul these organizations to keep the organizations immune from the subversion of the process.
In order to achieve that object, this Court would suggest that the certificates which would be issued in favour of the disabled person shall be authenticated either by the unique stamp or by hologram so that the authenticity of the certificate can be kept above suspicion. In this case, this Court would definitely take cognizance of the certificate issued on 22.03.2017 (Annexure-A1) for purpose of appreciating the disability. Further, this Court would not treat this as a fraud exercised on the Tribunal as CW1 has stated that the said certificate, showing 40% disability, might have been signed by a Doctor earlier working with the Board. It may be a misconduct of the Doctor who without having any authority had issued that certificate at that relevant point of time. The Director of Health Services shall take cognizance of the matter and on preliminary assessment should weigh whether he would take any disciplinary action against the Doctor, if it is found that he had really signed the document without any authority for the Board.
From the impugned judgment, it appears that the petitioner was a daily labourer and now he cannot move without the aid of crutch. The petitioner is a semi-literate person and as such there is no possibility of getting any other job notwithstanding the said disablement as recorded by the Board. In the considered view of this Court, conversion of the said disablement into 100% disablement is justified in view of the decision of the Apex Court in Pratap Narain Singh Deo Vs. Shrinivas Sabata and Anr., reported in (1976) 1 SCC 289.
Monthly income of the victim as determined at Rs.6,000/- is not unreasonable and hence, this Court is not inclined to interfere with the impugned judgment but the penal interest as imposed @ 10% p.a. is interfered with, inasmuch as the Tribunal does not have any authority under Section 171 of the Motor Vehicles Act to impose any penal interest with retrospective effect. They are only authorized to give simple interest to compensate the value of the award for depreciation of delayed determination. So the appellant shall only pay interest @8% per annum and not 10% per annum.
Subject to the observations and direction as above, this appeal is disposed of. Send down the records.
A copy of this order be sent to the Director of Health Services for his doing the needful.