A.C. Upadhyay, J.@mdashHeard Mr. S.N. Meitei, learned Counsel for the appellant. None appears on behalf of the respondents.
2. The appellant, Oriental Insurance Co. Ltd., has filed this appeal u/s 173 of the M.V. Act, 1988 praying for setting aside the final award and
order dated 9.10.2008 passed by the learned Member, MACT, Aizawl in MACT Case No. 93 of 2005, whereby the Insurance Company was
directed to pay an amount of Rs. 4,15,800 with interest @ 9% per annum on the awarded amount from the date of filing of this claim petition till
realisation.
3. The facts leading to filing of this appeal may be summarised as follows:
On 22.12.1994 at around 2. P.M. in the afternoon, the claimant was proceeding from Aizawl to North East Khawdungsei in a jeep bearing Regn.
No. MZ 01-3623, belonging to one, Rotuakliana, respondent No. 2. The vehicle was validly insured with the appellant, Insurance Company. The
vehicle in which the claimant was travelling met with an accident about 23 kms. away from Keifang. As a result of the accident, the claimant
sustained 55% permanent disability. At the relevant time, the vehicle was driven by respondent No. 1, R. Lalhlimpuia of Tuikual ''A'' Aizawl. The
claimant submitted petition before MACT Aizawl claiming compensation for having suffered 55% physical disability in the vehicular accident
aforesaid.
4. The appellant, Insurance Company, on receiving summon from the learned Tribunal entered appearance and submitted written statement
denying the claim of the claimant on various grounds. The appellant, Insurance Company participated throughout the proceedings of the claim case
by conducting cross-examination, etc., of the witnesses, produced by the claimant. The appellant also applied u/s 170 of the M.V. Act, 1988, for
allowing it to contest the claim on all grounds available to the owner of the offending vehicle, which was allowed by the learned Tribunal.
5. During the course of hearing, the learned Tribunal formulated following two issues for just decision of the claim case:
(1) Whether the claim application is maintainable or not?
(2) Whether the claimant is entitled to any compensation and if so, who is liable to pay and to what extent?
6. In order to substantiate the claim, the claimant examined as many as 3 witnesses including her. The claimant took the stand that while driving the
offending vehicle (Jeep), about 23 kms. away from Keifang to Champhai, the vehicle met with an accident in which she received serious bodily
injuries. She was immediately hospitalised at Saitual Hospital and referred to Civil Hospital, Aizawl for further treatment. She could not recover
from her injuries despite taking treatment prescribed by the doctor and at long last due to injuries so sustained, she became permanently disabled.
7. The claimant also contended that she had a shop in her village and was doing business. Thus, she could earn about Rs. 3500 per month to
support her old parents, brothers and sisters consisting of 5 members. However, as a result of the accident and consequent disability, she could not
continue with her business.
8. The learned Tribunal, after having evaluated the evidence led by the witnesses and on perusal of the documents relied on by the parties,
awarded compensation as aforesaid giving rise to this appeal.
9. The learned Counsel for the appellant contended that the learned Tribunal relied on the certificate issued by village council president, as a proof
of income of the claimant, which is highly irregular and unjustified. The learned Counsel further pointed out that such certificates are easily available
and, therefore, cannot be relied on without prima facie proof of having a business and income thereof as stated by the claimant. In support of his
contention the learned Counsel for the petitioner relied on a decision of this Court reported in New India Assurance Co. Ltd. Vs. Kawllian Thanga
and Another, wherein it was hold that the income certificate issued by the village council president cannot be taken into account for assessing the
income of an individual, without disclosure of source of income and nature of occupation. Merely by producing such certificates the burden of
proof, on the part of the claimant does not stand discharged. Relevant extracts of the decision reads as follows:
(5) Mr. George Raju, learned Counsel for the appellant submits that the method of calculation adopted by the learned tribunal is wrong and
arbitrary inasmuch as there is absolutely no proof on record to support that the deceased was earning Rs. 40,000 annually, as held by the learned
tribunal. The only documentary evidence in support of the claim is a certificate issued by the president of the village council marked Exhibit C-4,
which does not disclose the source of income or the nature of occupation of the deceased. Even the claimant, the elder brother of the deceased, in
his deposition bus stated nothing as to how the deceased was earning Rs. 40,000 annually or to what extent he was dependent on him. Though
learned Counsel for the claimant/respondent strongly opposed this submission by submitting that the certificate being admitted without objection
cannot be called in question at the appellate stage, 1 do not find any force in the same. Even after a document is admitted in evidence it remains to
be appreciated with regard to its evidentiary value. It is not difficult for any person to obtain such a certificate from a village council and by merely
producing such a certificate the burden of proof, on the part of the claimant docs not stand discharged. I am of the considered view that such a
certificate alone without any supportive evidence that a village council is competent to issue income certificate cannot be the basis for a taking a
view that the deceased was earning Rs. 40,000 annually. In the absence of any such evidence regarding income, the notional income provided in
the second schedule of the Act being Rs. 15,000 annually has to be accepted. Thus, the multiplier chosen correctly being 17, the amount of
compensation should have been Rs. 15,00,017, Rs. 2,55,000. From this amount one third has to be deducted being personnel expenses of the
deceased and, thus, the net amount would come to Rs. 1,70,000 (rupees one lac seventy thousand) only.
(empasis supplied)
10. The learned Counsel for the appellant pointed out that the learned tribunal relied on the disability certificate to conclude claimant''s permanent
disability of 55%, without examining the Doctor, who had evaluated and issued the certificate of disability to the claimant. Learned Counsel further
contended that the certificate purported to be issued by the Medical Board of Champai bore the signatures of the Doctors working in Civil
Hospital, Aizawl.
11. As a matter of fact in assessment of percentage of disability of an injured a medical expert in the field plays a crucial role. On the basis of such
assessment a tribunal embarks on evaluating the loss of earning capacity triggered by disability of the claimant. The degree of disability and loss of
earning capacity are not synonymous. Loss of earning capacity cannot be assessed by resorting to mere guess work. The tribunal should, for all
practical purposes, take assistance of a qualified medical practitioner to assess the extent of permanent disability of the claimant. On the other
hand, none examination of the Doctor as a witness, who gave the certificate of disability, would deprive the Insurance Company to test the veracity
and/or of the truthfulness of the statement and correctness of the documents placed on records by the claimant before the tribunal. The tribunal is
required to assess the loss of earning capacity keeping in view the percentage of the disability suffered by the claimant. Therefore, the assessment
and evaluation of the injury of the claimant is of paramount significance in proper adjudication of the claim petition. In support of his contention, the
learned Counsel for the appellant has relied on the decision of the. Division Bench of this Court National Insurance Co. Ltd. v. Chandreswar
Thakur and Ors. 2001 (1) GLT 392, wherein it was held as follows:
(2) The whole contention of the appellant is that the learned tribunal arrived at conclusion that the claimant suffered permanent disability without
examining the doctor. Since the claimant sustained injury, it was incumbent on the part of the claimant to have examined the Doctor and establish
its case as to what percentage of permanent disabilities was suffered by the claimant. It would clearly appear that besides submitting a certificate
from the Doctor, no doctor who has treated the claimant have been examined by the claimant. Non-examination of the doctor to establish the
extent of disabilities suffered by the claimant deny the opportunity to the Insurance Company to cross-examine the Doctor, In our jurisprudence
witnesses put up by either of the parties is subject to cross-examination so as to test veracity or the truthness or correctness of the statement of the
witnesses. In the instant case, no Doctor has been examined to establish the extent of disabilities suffered by the claimant and in that view the
permanent disability has not been proved. Apart from that the Tribunal saddled the liability with the Insurance Company on the compensation
assessed on the basis of permanent disability suffered by the claimant, without giving any opportunity of cross-examining the Doctor.
12. From the above discussion, it is apparent that the evidence of medical witness is essential for assessment of the percentage of disability
sustained by the injured to enable the Tribunal to adjudicate the claim. However, in the instant case the certificate of disability was relied on by the
learned Tribunal without examining the doctor who had issued the certificate.
13. In the circumstances discussed above, this Court is of the considered view that the requirement of the procedure was not adequately followed
by the learned tribunal before passing the award, thus, warranting remand of the proceedings, for fresh disposal in accordance with law.
14. The learned Counsel for the appellant has further contended that there was violation of the terms and conditions of the policy of the Insurance
as because the offending vehicle was used as a commercial vehicle without appropriate Insurance coverage to that effect.
15. Without lingering with the discussion any further and without tendering any views and/or decision on all such issues raised by the learned
Counsel for the appellant, in the circumstances discussed above, I hereby set aside the impugned award dated 9.10.2008 passed by the learned
Tribunal and remand the case to the Tribunal with the direction to start the proceeding afresh from the stage of examination of Doctor by giving
both parties opportunities to adduce additional evidence, if any. The learned tribunal may also summon the Doctor, who evaluated the injury of the
claimant and/or issued the certificate of disability to the claimant, and in the absence the said doctor, may examine any other qualified medical
practitioner to evaluate the disability suffered by the claimant. Needless to say that the Insurance Company would be entitled to cross-examine the
Doctor summoned as a witness by the learned tribunal. However, as the award has been set aside on technical ground and the entire proceeding
has been remanded for retrial in accordance with law, the appellant, Insurance Company, may take up all other questions of law, related issues,
etc., if any, based on facts, before the learned Tribunal.
I have consciously avoided discussing the merit of the appeal and/or the credibility or otherwise of the evidence adduced by the prosecution in the
tribunal so as to enable the learned court below to remain absolutely free to come to its own independent finding.
16. With the above direction, this appeal stands disposed of.
