Radheshyam Yadav vs Lalta Pd. Yadav and Others

Rajeev Gupta, C.J.—This is claimant''s appeal for enhancement of the compensation awarded by the Fifth Additional Motor Accidents Claims Tribunal, Raipur (for short ''the Tribunal'') vide award dated 08.04.2011, passed in Claim Case No. 63/2011. As against the compensation of Rs. 25,50,000/- claimed by the appellant/claimant by filing a claim petition u/s 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 19.10.2006, the Tribunal awarded a total sum of Rs. 48,212/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.

The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Radhesyam Yadav sustained multiple serious injuries in the motor accident on 19.10.2006; the accident occurred due to the negligence of the claimant who was driving Truck bearing registration No. C.G. 04E/4232 and the driver of the other Truck bearing registration No. W.B. 23 A/2337; the extent of negligence of the claimant and the driver of the other Truck was 50% each; as the other Truck bearing registration No. W.B. 23 A/2337 on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimant.

The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment, awarded Rs. 86,424/- towards medical expenses; Rs. 5,000/- for pain and suffering; and Rs. 5,000/- for loss of income during the period of treatment. The Tribunal, thus, assessed the total compensation at Rs. 96,424/-. As the claimant was held responsible for the accident to the extent of 50%, the Tribunal directed the insurer of the other Truck to pay 50% of Rs. 96,424/- i.e. Rs. 48,212/- as compensation to the claimant for the injuries sustained by him in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs. 48,212/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.

Shri Pawan Kesharwani, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that claimant Radhesyam Yadav also equally contributed to the accident; in assessing the total compensation at Rs. 96,424/- only; and in awarding low compensation of Rs. 48,212/- only.

Shri Abhishek Sinha and Shri D.L. Dewangan, learned counsel for respondent No. 5, the Oriental Insurance Company Limited, the insurer of the other vehicle Truck bearing registration No. W.B. 23A/2337 on the other hand supported the award and contended that the compensation of Rs. 96,424/- assessed by the Tribunal and Rs. 48,212/- awarded to the claimant is just and proper compensation in the facts and circumstances of the present case.

So far as the finding recorded by the Tribunal holding that claimant Radhesyam Yadav also equally contributed to the accident is concerned, it is apparent from the Tribunal''s records that both the vehicles involved in the accident were Trucks. Even according to the claimant''s case, the accident occurred when the claimant driving his Truck dashed the other stationary Truck. Even if the other stationary Truck was partly on the road, the claimant who was driving the other Truck cannot escape from his responsibility for the accident as he could have avoided the accident till the last moment.

In the above factual scenario, we do not find any infirmity in the finding recorded by the Tribunal holding that claimant Radhesyam Yadav also equally contributed to the accident.

Now, we shall examine as to whether the compensation of Rs. 96,424/- assessed by the Tribunal and Rs. 48,212/- awarded to the claimant is just and proper compensation in the facts and circumstances of the present case.

Before the Tribunal the claimant examined himself alone as AW 1 in support of his claim petition. For the reasons best known to the claimant, no doctor was examined before the Tribunal for establishing the number and nature of the injuries said to have been sustained by the claimant in the motor accident and the fact that those injuries resulted in any permanent disability.

The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under:

After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy''s medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn.

The Apex Court in a recent dictum in the case of Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another, reiterated the same view with the following observations in para 11:

The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen''s Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen''s Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.

The medical certificates and the disability certificate produced by the claimant before the Tribunal without examining the doctors who had issued those certificates, in view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), cannot be taken into consideration for enhancement of the compensation in the case.

We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.

The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. No order as to costs.