1. Appellant is the original claimant, whose Claim Petition No. 99 of 1995 was allowed by the Motor Accident Claims Tribunal, Nagpur vide its judgment and award dated 26.6.2006 to the extent of interim compensation to the tune of Rs.12,500/only as against the No Fault Liability. Being aggrieved thereby he has preferred this appeal.
2. Brief facts of the appeal can be stated as follows:
On
11.6.1993 at about 9.00 a.m., Appellant was proceeding
on his Bajaj M-80
bearing No. MZH-8386
from home to his office. At the
relevant time, he was serving with Bajaj Auto Limited as Service
Engineer and drawing salary of Rs.5,730/per
month. When he came on
his Bajaj M80
on West High Court Road, the jeep belonging to
respondentForest
Department bearing No. MH-31/
G-4121
came in
high speed. It was driven in rash and negligent manner and it dashed to
the Bajaj M-80
of Appellant. As a result, Appellant fell down and was
badly injured. He was given urgent medical treatment in the hospital of
Dr. Vivek Gadge as indoor patient till 21.6.1993. Thereafter, he took
treatment in the hospital of Dr. Kale from 19.7.1993 to 2.8.1993. He
spent near about 40,000/for
his medical treatment and still was
required to take further treatment. Hence, he claimed amount of
Rs.20,000/for
future medical treatment. According to him, considering
his nature of duty as service engineer, he was deprived from work and
his future prospectus of promotion were also hampered due to deformity
caused to his leg and therefore, he calculated and claimed the amount of
Rs.30,000/towards
the loss of pay, Rs.30,000/towards
future loss of
salary, Rs.5,000/towards
the loss of bonus and Rs.75,000/towards
nonpecuniary
losses due to mental shock etc., thus, total amount of
compensation claimed by him in the petition is Rs.2,00,000/on
all the
relevant heads.
3. He claimed this amount from respondent no.1 who is the
owner of the jeep, respondent no.2, who was driving the jeep at the
relevant time and respondent no.3 with whom the jeep was insured.
4. This claim petition came to be resisted by respondent no.1 denying his liability for accident on count that it was the Appellant who was driving his moped in rash and negligent manner and the jeep driver was not at fault at all. Respondent no.3Insurance Company also resisted the petition raising the same contention and further submitting that Appellant had not filed disability certificate, therefore, he is not entitled for the amount as claimed by him. It was submitted that the amount of compensation claimed by Appellant was exorbitant. Appellant has not sustained any permanent disability and hence, there was no question of granting the claim as made by him. Even his claim for N.F.L. of Rs.12,500/was denied by respondent no.3.
5. On the basis of these respective pleadings of both the parties, the Tribunal framed necessary issues at Exh.24. In support of his case, Appellant examined himself vide Exh.32 and also led the evidence of Dr. Sudhir Shandilya to prove the permanent disability certificate Exh.45.
6. On appreciation of this evidence, the learned Tribunal was pleased to hold that cause of accident was the rash and negligent driving of the offending vehicle, the jeep. The learned Tribunal was, however, pleased to hold that the Appellant had failed to prove the alleged permanent disability and also the other heads of loss; Appellant has also failed to prove the medical bills and the expenditure incurred for his medical treatment and hence, the learned Tribunal was pleased to hold that in the absence of any cogent and reliable evidence on record and also in absence of evidence to prove the ownership of the jeep and the link of the Insurance Company with the offending vehicle, whatever amount of compensation which is awarded to the Appellant towards N.F.L., of Rs.12,500/was sufficient. As a result, the rest of the claim of the Appellant came to be dismissed by the Tribunal.
7. This judgment of the Tribunal is challenged in this appeal by the learned counsel for Appellant by submitting that Tribunal has not at all properly appreciated the evidence on record, even as regards the aspect of rash and negligent driving. It is submitted that driver of the offending vehicle has not examined himself though the police have registered offence against him. Therefore, the tribunal has committed an error in holding this point as partly proved. Secondly, it is submitted that despite the evidence of Dr. Shandilya proving that Appellant has sustained permanent disability of 30%, the Tribunal has not awarded any amount towards loss of income or even towards pain, suffering etc. It is submitted that the impugned judgment and order, therefore, needs to be quashed and set aside.
8. Respondent nos. 1 and 2, though served remained absent. Learned counsel for respondent no.3 has also remained absent at the time of hearing of the appeal. Therefore, on the basis of the submissions advanced by learned counsel for Appellant and on perusal of the record and proceedings of the Tribunal, including the depositions and the documentary evidence produced in the case, this appeal is being decided.
9. The first and foremost point which is arising for my consideration in this appeal is whether the Appellant proves that cause of accident was rash and negligent driving of the jeep owned by respondent no.1 Forest Department and insured with respondent no.3?
10. In this respect, the evidence of the Appellant is sufficient as being an injured, he is also an eyewitness to the accident. According to his evidence, it was the jeep which came in fast speed from opposite direction, took ''U'' turn and dashed him from behind. There is no effective crossexamination of the Appellant on this aspect as regards the cause of accident. His evidence is also supported and corroborated from the FIR (Exh.33) and the spot panchnama (Exh.34). It is pertinent to note that the police had, after carrying out necessary inquiry registered the offence under Sections 279, 338 of the Indian Penal Code, against the driver of the jeep. Spot panchnama (Exh.34) also goes to show the damage caused to Bajaj M80 by the jeep from the back side. Moreover, the evidence of the Appellant that the jeep has given dash from the backside is sufficient to prove that the sole cause of accident was rash and negligent driving of the jeep. It is also pertinent to note that jeep driver has not entered into the witness box and has not filed his written statement denying the cause of accident as rash and negligent driving on his part. Neither respondent no.2 nor respondent no.3 have also examined any other eyewitness to prove the manner in which the accident has taken place. Hence, whatever evidence available on record proves the case of the Appellant that it was rash and negligent driving of the jeep which has resulted in the accident.
11. As a result, the liability of respondent no.1 the Forest Department, which is the owner of the said jeep has to be held as proved to pay compensation to the Appellant. However, as regards the insurance of the said jeep, Appellant himself admitted that on the date of accident, the jeep was not insured. He has also not produced on record the insurance policy of the jeep. Hence, respondent no.3 is required to be exempted from the liability of paying compensation.
12. Now the real question for consideration which is second point for my consideration in this appeal, is the quantum of compensation to which Appellant can be entitled. As per the evidence of the Appellant, after the accident he became unconscious and he was taken to the hospital of Dr. Gadge, where he was admitted for 10 days. He had sustained compound fracture to right leg. Thereafter, he was admitted in the hospital of Dr. Kale and there he had undergone the surgery. He was admitted there from 19.7.1993 to 2.8.1993 as an indoor patient for 21 days and he was also bedridden for total period of six months. According to his further evidence, in the said accident he has suffered 30% permanent disability as due to the fracture his right leg is shorten by half inch. He cannot walk more and also cannot kick the vehicle.
13. To support his case, Appellant has examined Dr. Sudhir Shandilya, who has issued disability certificate after examining the Appellant on 25.3.1998. According to evidence of Dr. Shandilya, on examination of Appellant, he found that Appellant had a ruptured interior cruciate ligament of right knee. He also had a varus deformity of his right knee. His fracture tibia was treated by V nail and he had a shortening of right leg by one inch. According to him, Appellant has suffered permanent disability of 30%. He had issued certificate vide Exh.45. Further he has deposed that due to disability, Appellant has lost strength of his right leg and he would not stand on his right leg for long time.
14. It is true that Dr. Shandilya is not crossexamined by any of the respondents and therefore, his evidence has remained unchallenged on record. Hence, submission of learned counsel for Appellant is that the Tribunal should have placed implicit reliance thereon;at least should not have discarded his evidence altogether, to reject the claim of Appellant for compensation. It is urged that when Dr.Shandilya has deposed that Appellant has sustained 30% permanent disability and had shortening of right leg by one inch, then the compensation has to be assessed on the basis of loss of income of Appellant, to the extent of 30%. Reliance is placed by learned counsel for Appellant on the judgment of Raj Kumar vs. Ajay Kumar & Anr. IV (2010) ACC 815 (SC), to submit that claimant should be compensated not only for physical injury, but also for loss, which he suffered on account of pecuniary damages, loss future of earning, medical expenses, damages for pain, suffering and trauma, loss of amenities and loss of future prospects etc. It is submitted that here in the case there was evidence of Dr. Shandilya who has examined the Appellant and also considered his medical record and thereafter issued the disability certificate, which has remained unchallenged and hence, this court should accept the same and assess the compensation towards the pecuniary loss of Appellant at the rate of 30% permanent disability.
15. On the face of it, submission advanced by learned counsel for the Appellant, appears to be persuasive, that as there is no cross-examination Dr. Shandilya, this Court should accept his evidence that Appellant has suffered 30% permanent disability. However, on closure and legal scrutiny, this Court can not accept the same because ultimately it is the duty of the Court to make realistic assessment of the injuries suffered by the claimant and loss of income which can arise from those injuries. It depends on the particular facts of each case and the evidence which is adduced in that case. Herein the case, it is pertinent to note that the treatment taken by the Appellant immediately after the accident was of Dr. Gadge, in whose hospital, he was admitted for 10 days. Thereafter from 19.7.1993 to 2.8.1993 Appellant was admitted in the hospital of Dr. Kale, who has conducted surgery on his right leg. Thus two Doctors who had treated the Appellant were the best persons to depose that on account of accident, Appellant has suffered permanent disability, that too, to the extent of 30%. However, for the reasons best known to him, Appellant has not examined either these of two doctors who were available in the Nagpur and who had given requisite medical treatment to him.
16. Appellant has however examined Dr.Shandilya,who has never treated him at any time. Appellant has not got himself examined from the Handicapped Medical Board or any Doctor or the Member from the Panel of Medical Officers which is constituted in each government hospital for the purpose of assessing the correct disability of the injured. Appellant has led evidence of Doctor Shandilya, who has not treated the Appellant nor examined him when claim petition was filed in the year 1995, but has examined Appellant three years thereafter during pendency of the petition. Therefore, this disability certificate cannot be taken ipse dixit for holding that Appellant has suffered 30% disability. As deposed by Dr.Shandilya, the only disability suffered by the Appellant was that he has lost strength of his right leg and he could not stand on right leg for long time. Whether this disability of Appellant being not able to stand on his right leg for long time, can be assessed to be 30% permanent disability? Answer is obviously "No".
17. It is pertinent to note that that as per the Appellant, his right leg is shortened by half inch, whereas Dr.Shandilya has gone further and stated that it was shorten by 1". Therefore, there is no consistency on this aspect also.
18. The submission of learned counsel for Appellant is that Appellant was Service Engineer in Bajaj Auto and therefore, his job required him to be on legs and due to shortening of leg, he is unable to kick the vehicle. However, Dr. Shandilya has not stated that Appellant cannot kick the vehicle. He has also not stated in the evidence that Appellant cannot stand on legs for long. Hence, the case put up by the Appellant that he has suffered 30% permanent disability cannot be accepted at all. At the most, having regard to the case of the Appellant that he was working as Service Engineer in Bajaj Auto Limited and there was shortage of right leg by half inch, as he was unable to stand for long on the strength of right leg alone, in my considered opinion, the permanent disability can be assessed to the extent of 10% only. Therefore, if one considers the salary of Appellant, as per the averments made in the petition as Rs.5,730/p. m., considering his age of 31 years, Appellant becomes entitled to get amount of Rs.1,02,000/towards loss of income. The Appellant has claimed amount of Rs.40,000/towards medical expenses. However, medical certificate to that effect is neither proved by examining Dr. Kale or Dr. Gadge. Even the medical treatment is also not proved by examining any of the two Doctors. However, as the xray produced on record by the Appellant shows that he has sustained fracture, the amount of Rs.20,000/can be awarded towards medical expenditure, plus Rs.10,000/towards pain and suffering. Thus, total comes to Rs.1,32,000/which is inclusive of the amount of Rs.12,500/which Appellant has already received towards N.F.L.
19. Thus, the appeal is allowed.
20. The impugned judgment and award of the Tribunal is modified to the extent that Appellant is held entitled to get compensation of Rs.1,32,000/inclusive of NFL amount of Rs.12,500/with interest @ 7.5% per annum from respondent no.1 alone. Claim against respondent nos. 2 and 3 stands dismissed.
21. In the circumstances of the case, there is no order as to costs.
