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Judgment
Rajeev Gupta, C.J.—Appellant/ Claimant Vijendra Kumar Chandniha is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari (for short `the Tribunal'') vide award dated 15.10.2009, passed in Claim Case No.83/2009.
As against the compensation of Rs.9,00,000/- 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 18.10.2008, the Tribunal awarded a total sum of Rs.14,000/- as compensation along with interest @ 6% 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 Vijendra Kumar Chandniha sustained multiple serious injuries including fracture in the motor accident on 18.10.2008; the claimant himself and the driver of the other vehicle Truck bearing Registration No.MP-09/KA-9349 equally contributed to the accident; as the above Truck 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 his treatment, awarded Rs.16,000/- towards medical expenses; Rs.4,000/- towards pain and suffering; Rs.5,000/-towards special diet and other expenses; and Rs.3,000/-towards loss of income during the period of treatment. The Tribunal, thus, assessed the total compensation at Rs.28,000/-. As the claimant himself was held responsible for the accident to the extent of 50%, the Tribunal directed the insurer of the Truck to pay 50% of Rs.28,000/- i.e. Rs.14,000/- 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.14,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
Shri Shivendu Pandya, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the claimant also equally contributed to the accident; and in assessing and awarding low compensation of Rs.28,000/- and Rs.14,000/-, respectively.
Shri Sudhir Agrawal and Shri P. Dutta, learned counsel for respondent No.2 the Oriental Insurance Company Limited, the insurer of the Truck, on the other hand, supported the award and contended that the compensation of Rs.14,000/-awarded by the Tribunal, is just and proper compensation in the facts and circumstances of the present case.
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 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.
Claimant Vijendra Kuamr Chandniha was aged about 28 years on the date of the accident. He was working as Police Constable at the relevant time. The bills and vouchers produced by the claimant before the Tribunal in regard to the medical expenses were to the extent of Rs.15,969/- and the Tribunal has awarded Rs.16,000/- towards medical expenses.
The claimant in his cross-examination before the Tribunal has admitted that he is performing his duties without any difficulty inspite of the injuries sustained by him in the motor accident. There is no material to indicate that the claimant on account of the injuries sustained by him in the motor accident was denied any promotion. Thus, it is apparent that the claimant did not suffer any loss in his future earning capacity on account of the injuries said to have been sustained by him in the motor accident.
So far as the finding recorded by the Tribunal holding that the claimant himself also equally contributed to the accident, we gather from paras 10 and 12 of the award that the claimant did not produce his driving license before the Tribunal; the accident occurred in the morning hours; the accident was result of head-on- collision between the claimant''s motorcycle and the Truck.
Considering the nature and manner of the accident, we do not find any infirmity in the above finding recorded by the Tribunal holding that the claimant himself also equally contributed to the accident.
For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal.
The appeal filed by the appellant/ claimant forenhancement of the compensation, therefore, is liable to bedismissed and is hereby dismissed.
No order as to costs.