The New India Assurance Company Limited vs Sanjay Shyamrao Nimkar

S.B. Shukre, J.—This appeal is directed against the judgment and award passed on 20th December, 2010 in Claim Petition No. 115 of 2007, by the Member, Motor Accident Claims Tribunal, Amravati.

The respondent No. 1 was traveling by goods carrier autorickshaw, bearing registration No. MH-27-P-859, on 10.12.2005 and the time was of about 10.30 p.m. When the autorickshaw came near Darshansing Dhaba on National High Way No. 6, it was dashed against by another truck coming from opposite direction. In this accident, the respondent No. 1 suffered multiple injuries leading to sustaining of permanent disability by him. Offence for rash and negligent driving of the truck was registered against an unknown owner of an unknown truck. The autorickshaw by which respondent No. 1 was traveling, was owned by respondent No. 2 and insured with the appellant at the time of accident. Although, the offence was registered against an unknown truck owner, respondent No. 1 claimed that the accident occurred only due to rash and negligent driving of the said autorickshaw by respondent No. 1. Therefore, he filed a claim petition against the appellant and respondent No. 2 claiming compensation of Rs. 5,00,000/-.

The petition was resisted by the respondents. After considering the evidence available on record and hearing both sides, learned Member of Motor Accident Claims Tribunal, Amravati by judgment and award passed on 20th December, 2010 allowed the petition and granted compensation of Rs. 7,82,000/- to the respondent No. 1 and it was further directed to be paid by the appellant only.

Not satisfied with this judgment and order, the appellant has preferred the present appeal.

I have heard Mr. Gautam Chatterji, learned counsel for the appellant and Mr. M.R. Joharapurkar, learned counsel for the respondent No. 1. Nobody has appeared for respondent No. 2, although duly served.

Now, the following points arise for my determination is:

1) Whether the Motor Accident Claims Tribunal, Amravati has committed a serious error in not considering appropriately the averments of respondent No. 1 and the evidence adduced by him on the point of wrongful act leading to occurrence of the accident and also relying upon the disability certificate which was not proved by the doctor ?

2) What order ?

Mr. Gautam Chatterji, learned counsel for the appellant has firstly contended is that the respondent No. 1 has averred in his petition that the offence was registered against the owner of an unknown truck, but has nowhere submitted in petition as well as evidence before the Court that the offence was incorrectly registered and it ought to have been registered against the respondent No. 2. He submits that no doubt, the respondent No. 1 has averred as well as stated on oath before the Court that the cause of accident was rash and negligent driving of the autorickshaw involved in the accident by the respondent No. 2. But, according to him, this fact is not enough when respondent No. 1 has simultaneously admitted simultaneously registration of offence against the owner of an unknown truck and, therefore, he further submits more evidence ought to have been brought on record by the respondent No. 1 to establish the fact that in no case offence could have been registered against the owner of an unknown truck.

Mr. Joharapurkar, learned counsel for the respondent No. 1 submits that the respondent No. 1 has specifically averred rashness and negligence on the part of the respondent No. 2 in driving the autorickshaw involved in the accident and according to him such specific averment would impliedly show that the respondent No. 1 does not accept in any manner correctness of registration of the F.I.R. against the owner of an unknown truck. He further submits that the respondent No. 1 was in hospital for necessary treatment after the accident and had no control over registration of the offence by the Police. He, therefore, submits that whatever was done by the Police was without consent and acquiescence by the respondent No. 1 and, therefore, would not bind him in any manner in this case.

I would have accepted the contentions of the learned counsel for the respondent No. 1 had there been at least some pleading on the part of the respondent No. 1 as regards incorrect registration of the F.I.R. by the Police. In paragraph 9 of the claim petition, the respondent No. 1 has stated that the offences punishable under Sections 279, 337, 338 and 427 of the Indian Penal Code were registered against the driver of an unknown truck at Police Station Nandgaon Peth. In paragraph 22, however, the respondent No. 1 has stated that the accident occurred only due to rash and negligent driving of the autorickshaw by its driver i.e. respondent No. 2. This subsequent averment being not consistent with the first pleading appearing in paragraph 9 of the claim petition, it was necessary for the respondent No. 1 to explain the registration of F.I.R. against the owner of an unknown truck by the Police and the respondent No. 1 ought to have stated that it was wrongly done by the Police Station Nandgaon Peth. This has not been done by respondent No. 1 either in his claim petition or even in the evidence given by him before the Tribunal and, therefore, a doubt arises, with whom really the fault lay for accident, according to own case of respondent No. 1. This aspect of the case, it appears from the impugned judgment and award has not been appropriately considered by the Tribunal and the Tribunal has only relied upon the law laid down by the Hon''ble Apex Court in the case of Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, in applying the principle of strict liability to the facts of the instant case. Learned Member of the Tribunal ought to have considered the fact that this is a case in which rashness and negligence has been sought to be specifically attributed to the driver of the autorickshaw by the respondent No. 1 and, therefore, an appropriate finding upon consideration of the averments of the respondent No. 1 and the evidence available on record ought to have been recorded by the Tribunal. That being not so in the instant case, I am of the view that this matter would have to be remanded to the Tribunal for a decision afresh in the matter.

There is one more contention canvassed on behalf of appellant supporting the case for remand of the matter to the Tribunal. According to the learned counsel for the appellant, doctor has not been examined in this case and yet reliance has been placed upon the disability certificate. He submits that it is now well settled law that not in all cases extent of permanent disability corresponds with the extent of loss of income or earning capacity of the claimant and, therefore, it is necessary for the Tribunal to ascertain the extent of functional disability of the claimant. He points out from the impugned judgment and award that the Tribunal has not considered this settled legal position and has straight away assumed functional disability of respondent No. 1 to be 100% in this case even though there was no evidence of the concerned doctor adduced in this regard.

Learned counsel for the respondent No. 1 admits that the concerned doctor has not been examined in this case. But, according to him, it has not affected adversely the case of the respondent No. 1 on merits. He points out from the evidence of respondent No. 1 that the respondent No. 1 has suffered 100% functional disability due to shortening of his leg as he is unable to stand which inability has affected his earning capacity as a vendor of spices completely. He further submits that this evidence has not been seriously challenged by the appellant and, therefore, there is no need for remanding of this case to the Tribunal for calling of the concerned doctor for proving of disability certificate in this case.

The law requiring examination of the concerned doctor to prove the disability certificate and particularly to assist the Court in ascertaining functional disability of a claimant has been laid down by the Hon''ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another, The relevant observations of the Hon''ble Apex Court appearing in paragraph 18 are reproduced as under:-

"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 give 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 the claimant, is tendered for cross-examination with reference to the certificate. It 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."

From the above observation of the Hon''ble Apex Court, it is clear that a duty is cast upon the Tribunal to require the evidence of the doctor, who treated the injured or who assessed permanent disability, to be brought on record as mere production of a disability certificate is not the proof of the extent of disability stated therein. Therefore, on this count also, the matter would require to be heard and decided afresh.

In the circumstances, I find that the Tribunal has committed serious error in not properly considering the averments of respondent No. 1 in the light of the evidence available on record and has also wrongly considered the extent of permanent disability as equivalent to functional disability of the respondent No. 1, when there was no evidence of the concerned doctor available on record in that regard. The case deserves to be remanded to the Tribunal for a decision afresh in the matter, leaving all questions open. Both the points are answered accordingly.

The appeal is allowed and the impugned judgment and award are hereby quashed and set aside.

A) The matter is remanded back to the Motor Accident Claims Tribunal, Amravati for a decision afresh from the stage of evidence on the issues already framed in the matter. However, parties are at liberty to move the Tribunal for seeking permission to amend the pleadings, which application/s if moved, shall be decided by the Tribunal on merits, in accordance with law.

B) The parties are at liberty to adduce additional evidence.

C) The Tribunal after considering the evidence already available on record, and additional evidence, if any, shall decide the case afresh in accordance with law.

D) Parties are directed to appear before the Tribunal on 24th March, 2014.

E) The Tribunal is requested to dispose of the case as far as possible within four months from the date of appearance of the parties.

F) The appellant is permitted to withdraw the amount of statutory deposit made in this Court.

G) The Tribunal shall not be influenced by the observations made by this Court in this judgment.

H) In the circumstances of the case, parties to bear their own costs.