Yudhisthir Naskar vs National Insurance Company Ltd.

Jayanta Kumar Biswas, J.—The appellant is aggrieved by an award of the Motor Accident Claims Tribunal, Alipore dated 26th March, 2002 dismissing his application claiming compensation under Section 163A of the Motor Vehicles Act, 1988. The appellant filed the application for compensation on 28th April, 2000. His case was this. His nephew Ashoke Sardar (15), a student, was injured in an accident arising out of the use of a bus No. WB19-6269 on 10th January, 2000 at 7.30 a.m. near Srater Pole within Diamond Harbour police station jurisdiction. For the permanent partial disablement the accident caused, the victim became entitled to Rs. 1 lakh compensation and Rs. 10,000 medical expenses.

The owner of the offending vehicle did not contest the claim. The Insurance Company whose insurance policy was in force in relation to the use of the vehicle contested the case by filing a written statement. It denied and disputed all material facts.

In proof of the case the appellant testified as PW 2 and examined one Dr. H.K. Mukherjee as PW 1. The appellant produced a copy of an FIR dated 10th January, 2000; a discharge certificate dated 22nd January, 2000; an opinion dated 23rd June, 2001 given by PW 1; a certificate dated 12th July, 2000 with a Diamond Harbour police station seal affixed on it; and a few documents concerning the motor vehicle (bus).

The Claims Tribunal dismissed the case holding as follows. The appellant failed to prove his relationship with the victim. He did not see the accident; nor did he do anything concerning the victim''s treatment. He did not file any document in proof of his identity. The disablement opinion was not acceptable, because PW 1 said that he gave it on the basis of clinical examination and relying on the discharge certificate. The appellant also failed to prove the victim''s age and income. Evidence did not prove anything.

Mr. Banik appearing for the appellant has submitted as follows. The Insurance Company did not dispute that the victim was the appellant''s nephew; that the victim was injured in the accident; and that the victim was 15 and a student. No formal proof of the documents was necessary. The Claims Tribunal ought to have granted compensation treating the victim as a non-earning person. The case may be remanded for further evidence, if evidence is found insufficient.

Mr. Singh appearing for the Insurance Company has submitted as follows. The appellant failed to prove his relationship with the victim. It was for him to prove the case stated in the application for compensation. It is not the law that whatever he said was to be accepted as a gospel truth. It was not proved that the appellant''s claimed nephew was injured in the accident involving which the claim case was filed. It is wrong to say that the documents filed were to be accepted, even if they were not proved. The Claims Tribunal rightly dismissed the case.

Mr. Singh has relied on two Division Bench decisions of this Court in Barun Kumar Das Vs. New India Assurance Co. Ltd. and Another, and Md. Salauddin Vs. National Insurance Co. Ltd. and Another, . Relying on the principles stated in the decisions, he has submitted that the certificate issued by PW 1 could not prove any permanent disablement of the appellant''s claimed nephew, because PW 1, admittedly, gave the opinion on the basis of mere clinical examination.

The appellant did not mention anywhere what kind of uncle he was of the victim. The Claims Tribunal proceeded on the basis that he was the victim''s paternal uncle. This seems to be a wrong basis; for first, there was no evidence of that, and secondly, while the appellant was a Naskar, the victim a Sardar. A paternal uncle normally possesses the same surname as his nephew.

The appellant did not mention the victim''s father''s name anywhere; it is a very unusual thing. In the application the appellant stated, "For this accident victim and his parent has suffered a great financial loss, mental pain and agony". The application was verified by the appellant stating that everything stated therein was true to his knowledge.

The appellant''s testimony taken down by the Claims Tribunal is quoted below:

"The victim Ashok Sardar is my nephew and he met with the motor accident on 10th January, 2000 at about 7.30 a.m. on Saterpole. He was travelling by bus and I heard from police about the accident. I do not know where the victim got admitted for his treatment and he has not totally cured at present and feels pain. I have claimed compensation of Rs. 1,00,000 only.

I have already filed all relevant papers before this Court.

Cross-examination--I have not filed any paper to show that the victim is my nephew. His parents are not alive and he is living with me. There is no paper with me to show that his parents are dead. The number of the offending vehicle is WB 19/6269. I was not present at the time of accident. I am not aware anything for his medical treatment. Not a fact that my claim is excessive."

PW 1''s testimony taken down by the Claims Tribunal is quoted below:

"On 23rd June, 2001, I examined one Ashok Sardar aged 15 yrs. with R.T.A. Case on 10th January, 2000 and I have issued this certificate of disablement after clinically examined him and perusal of the treatment papers. The patient in my opinion suffers permanent partial disability to the extent of 30%. This is the said certificate issued by which bears my signature marked Ext. 1).

Cross-examination--I examined the patient once only i.e., on 23rd June, 2000. I have examined the patient clinically and perusal of discharge certificate. I only perused the discharge certificate. It is the discharge certificate of Kulpi Rural Hospital, but there is stamp of the said hospital. I did not advice any further X-ray. I have not seen any X-ray report or plate.

Not a fact that my opinion to the extent of 30% as permanent disablement is excessive. Not a fact that the patient is normal and he sustain no such injury."

Although, in proof of his case, the appellant produced the documents mentioned hereinbefore, except PW 1''s opinion dated 23rd June, 2001 proved by PW 1, no other document was proved by anyone. The opinion of PW 1 marked Ex. 1 is the only exhibit in the case.

The discharge certificate does not bear any seal of any hospital. Even then PW 1 testified, "but there is stamp of the said hospital". It is not numbered. It was perhaps initiated by someone without describing his identity. Its contents are to the effect that in one Kulpi hospital one Ashok Sardar, nephew of some Yudhisthir Naskar, received some fracture treatment during the period from 10th January, 2000 to 22nd January, 2000. As noted before it was not proved by anyone. It is highly probable that it was manufactured for the case.

The FIR dated 10th January, 2000 does not directly connect the appellant''s claimed nephew with the motor vehicle accident happening on 10th January, 2000 and concerning which it was registered. The de facto complainant was one Kalam Khan. Kalam gave information of the accident because his fifteen-year old son was injured in the accident. It was mentioned that his injured son was treated in one Harindanga Charitable Dispensary.

The certificate dated 12th July, 2000 on which a Diamond Harbour police station seal was affixed was produced to show that the appellant''s claimed nephew was injured in the accident happening on 10th January, 2000 in the course of use of the offending vehicle. On the seal some one not identifiable wrote "certified true copy". The document is a very doubtful, document and no step was taken to prove it.

Testimony of PW 2, the appellant, reveals the nature of the claim. The appellant not stating the victim''s father''s name anywhere in the application for compensation where he stated that for the accident the victim and his parent suffered great financial loss, mental pain and agony, said in his cross-examination that the victim''s parents were not alive. He did not adduce any evidence to corroborate his testimony that he was an uncle of the victim.

The appellant was not an eye-witness to the accident. He admitted that he was not aware of anything concerning the victim''s medical treatment. He claimed that the victim was living with him. Which statement of the appellant is correct is a big question. As already noted, in the application for compensation he stated that the accident caused the victim''s parent huge financial loss, mental pain and agony. The application was filed on 28th April, 2000. The appellant''s evidence was taken down on 9th January, 2002.

It is not the case that after the application for compensation was filed the victim''s parents died. The appellant claiming that the victim was living with him admitted his total ignorance of the victim''s medical treatment. The victim''s father''s name was not mentioned in the discharge certificate dated 22nd January, 2000; the Diamond Harbour police station certificate dated 12th July, 2000; and in Ex. 1 dated 23rd June, 2001. In all of them it was written that victim was the nephew of the appellant. It is highly probable that these documents were manufactured for filing a false case.

The evidence taken down by the Claims Tribunal and the documents produced by the appellant, in our considered opinion, clearly reveal that the case was not a bona fide one. Nothing proved that the appellant was an uncle of the victim. Nothing proved that the victim was injured in any accident happening on 10th January, 2000 arising out of the use of the motor vehicle. For undisclosed reasons the victim was not examined.

Hence we are of the opinion that the Claims Tribunal rightly held that the appellant failed to prove his relationship with the victim. We also find that the appellant failed to prove that the victim was injured in the accident concerning which the claim case was filed.

In view of the above-noted situation, the disablement opinion Ex. 1 given by PW 1 loses significance. In the two decisions cited before us the same doctor had given similar opinions. One Division Bench even described him as a stock doctor. The Bench gave reasons why the disablement opinions given by PW 1 were not acceptable. It referred to the casual manner in which he gave the opinions. The facts are almost identical. In this case also PW 1 gave the disablement opinion very casually and merely on the basis of his clinical examination of the victim.

The opinion, in our opinion was not sufficient to prove the victim''s permanent disablement caused by an accident arising out of the use of the motor vehicle concerned on 10th January, 2000. For there reasons, we hold that the appellant totally failed to prove he necessary facts for entitling the victim to compensation under Section 163A. Accordingly, we affirm the decision of the Claims Tribunal and dismiss this appeal. No costs. Certified xerox.