Devidas vs Asaram

Present appeal has been filed by the original respondent challenging the judgment and award passed by learned Ad hoc District JudgeÂ1 &

Member of the Motor Accident Claims Tribunal, Majalgaon, District Beed, in Motor Accident Claim Petition No. 02 of 2011, dated 24Â08Â2015,

whereby the petition filed by the present respondent under Section 166 of the Motor Vehicles Act, 1988 came to be partly allowed against him.

[Parties are referred by their nomenclature before the Tribunal henceforth.]

The original petitioner had come with a case, that he was travelling along with other passengers in motor jeep bearing registration no. MHÂ 23/EÂ‐

2140 from Majalgaon to Takarwan at about 06.00 to 06.30 p.m. on 16Â10Â2010. Present petitioner, who is the owner of the said vehicle, was driving

it in high speed, rash and negligent manner. It is stated that the jeep driven by the respondent gave dash to tractor bearing no. MHÂ23/PÂ5165 which

was coming from the opposite direction. As a result of the dash, the petitioner sustained injuries to his right and left leg, right thigh, hand and back. He

was then admitted to Government College & Hospital, Aurangabad. The respondent was prosecuted by Majalgaon Police for the said accident. It is

stated that he has suffered 15 % disability due to the accidental injuries. He had incurred huge medical expenses. He was a labour getting monthly

income of Rs. 5,000/Â per month and was aged 42 years. He has claimed compensation to the tune of Rs. 18,00,000/Â but restricted it to Rs.

6,00,000/Â​ for the purpose of courtÂ​fees.

The respondent filed written statement at Exhibit 19. He admitted that the petitioner was travelling from his jeep but then denied that the accident

had taken place due to his negligence. He has tried to contend that the accident took place due to the rashness and negligence on the part of the

tractor driver who had come from opposite direction and also stated that the application is not maintainable for nonÂ​joinder of necessary parties.

Taking into consideration rival contentions, issues came to be framed. The applicant has led oral as well as documentary evidence. Taking into

consideration evidence led by him, the learned Tribunal has partly allowed the petition. The respondent was directed to deposit amount of Rs.

2,96,371/Â towards compensation together with interest at the rate of 9 % per annum from the date of filing of the petition till actual realization of the

entire amount. This order / award is challenged in this first appeal.

Heard learned Advocate Mr. V.P. Savant appearing for the appellant and learned Advocate Mr. S.J. Salunke appearing for the respondent.

Perused the record and proceedings.

Following points arise for determination. Findings and reasons for the same are as follows :Â​

(I) Whether the petitioner had proved that he suffered permanent disablement in vehicular accident that had taken place on 16Â​10Â​2010 ?

(II) Whether he further proves that the said accident had occurred due to the rashness and negligence on the part of the respondent while driving

Commander jeep bearing no. MHÂ​23/EÂ​ 2140 ?

(III) Whether he is entitled to get compensation ? If yes, at what rate ?

(IV) Whether interference is required in the order passed by the learned Tribunal ?

All the points are taken up together for discussion for the sake of convenience and to avoid repetition.

At the outset, it has been submitted on behalf of the appellant, that the learned Tribunal failed to consider that there was no evidence adduced by

the applicant to prove the disability certificate. The said disability certificate has been exhibited during evidence of the petitioner. However, the

concerned Medical Officer who had issued the said certificate has not been examined. Further, as per the said certificate, the disability is to the extent

of 15 %. However, the learned Member without considering any evidence, came to the conclusion that the petitioner would have suffered 50 % loss in

income due to the said disablement. The calculation of the amount has been done on wrong assumptions.

Per contra, learned Advocate appearing for the respondent has supported the reasons given by the learned Tribunal.

The record shows that the applicant has examined himself at Exhibit 23. He has filed his affidavit in chief and he has been cross examined at length

by the respondent. Thereafter, he has closed his side for adducing oral as well as documentary evidence by filing Pursis at Exhibit 31. The important

point to be noted is that after his affidavit in chief was taken and his verification was taken, the documents in the form of discharge card bill, certified

copy of spot panchanama have been exhibited. But thereafter it appears that the original injury certificate, Form ""B"" Exhibit 48, showing permanent

disability of 15 % issued by the Chairman, Orthopedic Board and Members of the Board has been produced on record. In order to prove the said

document, any signatory to the certificate has not been examined. From the judgment also, it cannot be stated as to under which provisions, the said

Form ""B"" has been treated as proved. Specific argument was advanced by the respondent, that though exhibits are given, yet the author of the

certificate has not been examined and, therefore, those documents cannot be considered. It appears that only observation is made that since the

disability certificate Exhibit 48 is issued by Medical Board under the signature of the Member of the Orthopedic Board, District Hospital, Beed, it has

been read in evidence. Further, based upon the said certificate, the learned Member has considered the financial loss of the petitioner to the extent of

50 % and accordingly the compensation has been awarded. The question here is, as to whether the said document Exhibit 48 can be said to be proved

or admissible in evidence.

In Rajesh Kumar Vs. Yudhvir Singh & another [2008 ACJ 2131 (SC),] the Hon'ble Apex Court has held that the Tribunal cannot accept a

disability certificate without examining the Doctor concerned. In other words, it was stated that the author of the disability certificate should be

examined. Here, in this case, the certificate Exhibit 48 i.e. Form ""B"" was issued by the Chairman, Orthopaedic Board, Civil Surgeon, D.H., Beed;

Orthopaedic Surgeon, ClassÂI, Member of Orthopaedic Board, D.H., Beed; General Surgeon, ClassÂI, Orthopaedic Board Member, D.H., Beed and

R.M.O., Member of Orthopaedic Board, D.H., Beed. It shows that they had assessed the permanent disability of the petitioner to the extent of 15 %.

No doubt, the Board is established all over Maharashtra under the rules and as per directions by the Government, they were established just to assess

the physical disability of a person. Though broadly it may be stated that the said certificate was issued by the Committee / Board in the official

discharge of their work, yet, when it comes to the financial loss or claim of the petitioner, that the said physical disability has affected his earning

capacity, then the petitioner ought to have examined any one of the signatory to the certificate Exhibit 48. It also appears that at Exhibit 44, application

was given by the applicant to issue summons to the concerned authority. However, it appears that he did not remain present and, therefore, by another

application it was prayed that bailable warrant should be issued. But then, the record does not show as to what happened to that and some other

applications were filed. That means, even the petitioner was in favour of examining the author of the certificate. Reasonable opportunity ought to have

been given by the Tribunal to secure presence of one of the signatories to the certificate and to get it proved by its author. Since the author of the

certificate has not been examined, the said document cannot be considered.

As regards the other point i.e. rashness and negligence on the part of the present appellant, he has not led any evidence and the cross of the

petitioner taken on his behalf does not show any serious challenge to the fact of accident. In fact, in his written statement, he has admitted that the

petitioner was travelling in the offending vehicle which was driven by the opponent. Under that circumstance, it was for the opponent to explain as to

how the petitioner sustained injuries. Merely by denying the allegations, the facts cannot be inferred in his favour. The opponent has been prosecuted

by the police for the said accident. The petitioner has given in his examination as to how the accident took place due to the rashness and negligence on

the part of the opponent. Therefore, there was ample evidence on record to come to the conclusion that the accident took place due to the negligence

on the part of the opponent. Therefore, he is liable to pay the amount of compensation to the petitioner.

The petitioner has proved that he sustained accidental injuries. He has proved that the said accident was caused due to the negligence on the part

of the opponent and, therefore, he is entitled to get compensation. Under such circumstance, as regards quantum, when he has not examined author of

the disability certificate, in my opinion, taking into consideration the nature of the legislation i.e. socioÂeconomic, matter deserves remand to get an

opportunity to the claimant / petitioner to examine the author and then to come to a conclusion as to whether that permanent disability has affected the

earning capacity of the petitioner and to what extent. Now, since the matter deserves remand, I refrain myself from taking the task of computing the

compensation to which the applicant is entitled to get as the said task would be then left to the Tribunal concerned. It can be definitely said that

without the said evidence on record, the learned Tribunal was not justified in coming to the conclusion that for 15 % physical disability, the petitioner

would have sustained 50 % financial loss, as well. It will not be out of place to mention here that sometimes the percentage of disability may be small

but it may affect even the total earning capacity of a person. Therefore, proper appreciation of the evidence was necessary in this case. Since it has

not been done, the matter deserves remand.

With the aforesaid observations, following order is passed :Â​

(a) The appeal is hereby partly allowed.

(b) The judgment and award passed by learned Ad hoc District JudgeÂ1 & Member of the Motor Accident Claims Tribunal, Majalgaon, District

Beed, in Motor Accident Claim Petition No. 02 of 2011, dated 24Â08Â 2015, is hereby set aside. The said petition is restored to the file of learned

Member of the Motor Accident Claims Tribunal, Majalgaon. The concerned Tribunal is directed to give an opportunity to the petitioner to lead

evidence by examining author of the disability certificate or any such person to whom the petitioner intends to examine, including himself again also

and thereafter again giving an opportunity to the respondent to lead evidence, the Tribunal should decide the petition afresh as per law. Parties to

appear before the Tribunal on 29th July 2019.

(c) Since the matter of 2011 has been remanded, the learned Tribunal shall give priority to this matter and expedite the same. The Tribunal shall

dispose of this matter as early as possible and not later than six months from the date of receipt of the writ.

(d) The statutory amount deposited by the appellant, in this Court, be refunded to the appellant.

(e) Record and proceedings be sent back immediately.