AI Structured Summary
Not yet generated for this judgment
Judgment
. Heard Ms. Anita Singh Mategaonkar, learned Counsel for the Appellant and Mr. V. N. Morande, learned Counsel for the Respondent Nos.1(i) to 1(iii).
By way of present Appeal, the challenge is to the Judgment and Award dated 2/1/2012 passed by the Motor Accident Claims Tribunal, Gadchiroli in MACP No. 81/2009.
In the present Appeal, it is admitted fact that on 26/9/2008 when the Respondent No.1 was riding on motorcycle bearing registration No. MH-33/D-5393 along with one another person, offending truck bearing registration No. MH-34/A-6883 came in high speed and gave dash to him, as a result of which, he fell down on the road. Thereafter he was admitted in the Rural Hospital, Etapalli and then referred to Dr. Wasade’s Hospital at Chandrapur, who is well known Orthopaedic Surgeon in the city of Chandrapur and there Respondent No.1 was under treatment for 72 days for amputation of his finger of leg. Hence, it is the case of the Respondent No.1/Claimant that he suffered permanent disability in the accident and thereby filed the Claim Petition, praying for Rs.4,00,000/- towards compensation in the matter.
The Claim Petition was strongly contested by the Appellant/Insurance Company. According to the Appellant, the Respondent No.1 – Mahesh Manohar Nagbhidkar did not suffer permanent disability due to the accident. According to the Appellant, he himself was negligent and the amount claimed is exorbitant. Hence, denied the claim made by the Respondent No.1.
In the background of abovesaid factual position, the Respondent No.1 entered into the witness-box and proved that the accident was taken place and he sustained injuries out of the said accident. He also deposed the fact that initially he was referred to Primary Health Centre and then referred to the Hospital of Dr. Wasade, who is well known Orthopaedic Surgeon in the city of Chandrapur. In support of his statement, the Respondent No.1 has relied upon two certificates issued by the Medical Board one is dated 16/3/2011 (Exhibit-69) and another is dated 29/9/2011 (Exhibit-73).
On the basis of abovesaid disability certificates, the claim of the Respondent No.1 is that he caused permanent disability of total 50%, and therefore, he is entitled for the compensation of Rs.4,00,000/-, as claimed by him in the matter.
The Appellant/Insurance Company has pointed out that initially the Medical Board, vide its certificate dated 16/3/2011, has pointed out 20% permanent disability and 30% temporary disability, but later on vide Certificate dated 29/9/2011 total percentage of permanent disability was shown as 50%.
In this regard, Respondent No.1 was specifically cross-examined by the Insurance Company before the Tribunal and he has categorically admitted that he is not aware as to how the Medical Board had issued medical certificate of increase in his permanent disability from 20% to 50%. Hence, according to the Appellant, this disability certificate creates doubt in the matter.
It is also stated by the Appellant that if the Respondent No.1 was relying upon this disability certificate, it was necessary for him to examine the Doctor who has issued disability certificate or atleast demonstrate before the Tribunal as to how his income was affected because of such disability, how he is unable to do the regular work as a normal person, but, no such evidence is available on record. According to the Appellant, the learned Tribunal has wrongly determined the compensation amount in the matter.
After hearing the learned Counsel for both sides, I have perused the findings recorded by the Tribunal in the matter. In paragraph No.9 of the Judgment, the Tribunal has applied his mind and recorded the finding that after perusal of both the certificates i.e. Exhibit-69 and 73, it was necessary for the Medical Board to give reasons while issuing the subsequent certificate, but no reasons have been disclosed in the affidavit filed at Exhibit-45 by the Respondent No.1 nor the Medical Officer was examined before the Tribunal to prove Exhibit-73. Hence, the learned Tribunal has relied upon the disability certificate at Exhibit-69.
In the present matter, the fact is not disputed that due to accident, injury was caused to the Respondent No.1. It is also not disputed that he was under treatment for 72 days to the Orthopaedic Surgeon. In the normal course, no person will remain under medical treatment for 72 days for simple injury. Unless there is a grievous injury, the Orthopaedic Surgeon will not admit the patient for such a long period. Therefore, this fact confirms that Respondent No.1 caused grievous injury in the accident.
The only question in the present matter is whether the certificate Exhibit-69 is to be considered or Exhibit-73 is to be considered, is a question arose in the matter. In my opinion, Certificate dated 16/3/2011 (Exhibit-69) was issued first in time, that too, immediately after the treatment taken by the Respondent No.1 from private Orthopaedic Surgeon Dr. Wasade. Hence, the disability certificate dated 16/3/2011 is having more probative value than the subsequent certificate. The subsequent certificate dated 29/9/2011 (Exhibit- 73) was issued after a period of six months of earlier certificate. So also the certificate do not disclose as to how the Civil Surgeon reached to the conclusion that percentage of disability was increased from 20% to 50%. Therefore, if such increase is shown in the percentage of disability, in my view, the evidence in that regard would be necessary in such a matter. But admittedly no evidence is available on record to demonstrate as to how the percentage of disability has been increased form 20% to 50% in between the period of six months. So also it is not the case of the Respondent No.1 that for six months he was under treatment of any private or Government Doctor. Rather in his cross-examination he himself stated that he is not aware as to how the percentage of disability has been increased from 20% to 50%.
In the circumstances, I am of the considered opinion that disability certificate of 20% (Exhibit-69) is the only document which requires to be accepted in the matter. The learned Tribunal in the impugned order, may for other reasons, but accepted the certificate dated 16/3/2011 (Exhibit-69) in the matter, and accordingly, assessed the compensation in the matter. Therefore, I concur with the conclusion drawn by the Tribunal in the matter.
The income of the Respondent No.1 and calculations done towards his entitlement is not seriously disputed in the matter. The bare perusal of the Judgment shows that his income was considered only Rs.5000/-per month and on that basis calculation is done in the matter. Therefore, I do not find any illegality or perversity while calculating the compensation amount. The finding recorded in paragraph Nos.12 to 14 of the Judgment of Tribunal demonstrates the fact that as per the settled position of law, by determining 20% disability of Respondent in the accident by relying upon the Certificate, awarded just and fair compensation of Rs.2,28,899/- in the matter. Hence, considering the overall factual and legal position in the matter, I do not find any merit in the present Appeal, and accordingly, the same stands dismissed.
The Appellant is directed to deposit the amount in this Court and the Respondent No.1 is permitted to withdraw the amount deposited by the Appellant, subject to satisfaction of Registrar (Judicial) of this Court.