IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
MAC No.48 of 2007
The New India Assurance Company Limited
...Petitioners
VERSUS
1. Salikram
2. Vishnu Sahu
3. Deepak
...Respondents
! Shri Dashrath Gupta, counsel for the appellant/insurer
^ Shri R.N.Jha, counsel for respondent No.1/claimant
No one appears on behalf of respondents No.2 and 3 though served
Hon’ble Shri Dilip Raosaheb Deshmukh J
Dated: 17/08/2007
: Order
Appeal under Section 173 of the Motor Vehicles Act 1988
ORAL ORDER
(Passed on 17th August, 2007)
Heard.
(2) This appeal is directed against the award dated
13-10-2006 passed by Shri N.D.Ekka, Additional Motor
Accidents Claims Tribunal, Khairagarh (henceforth
`the MACT’) in Claim Case No.24/2005, whereby the
MACT has awarded Rs.2,42,000/- to respondent
No.1/claimant for the permanent disability suffered
by him due to the accident.
(3) Brief facts are that on 09-08-2005, respondent
No.1/claimant was going to his Village Pendri on a
cycle. Respondent No.3 drove Sumo vehicle No.CG
09/5003 in a rash and negligent manner and dashed
against the cycle of respondent No.1/claimant, who
sustained fracture in radius and ulna bones of left
fore arm and also sustained a serious head injury.
The claimant was admitted in Chandulal Chandrakar
Memorial Hospital, Bhilai from 10-08-2005 to 27-08-
2005 and incurred heavy expenses in treatment.
Operation of the fractured montegra was also
performed. The claimant filed the disability
certificate and all the relevant documents relating
to treatment undertaken and expenses incurred by him.
All these documents were exhibited by the MACT during
statement of the claimant despite a serious objection
raised by the insurance company that unless the
doctor granting the disability certificate was
examined, the disability certificate could not be
exhibited. Taking into consideration the minimum
wage prevalent under law, the MACT assessed the daily
income of respondent No.1/claimant at Rs.100/- and
taking 25 working days in a month, assessed monthly
income of respondent No.1/claimant at Rs.2,500/-.
Taking permanent disability suffered by respondent
No.1/claimant at 35%, the MACT assessed compensation
as under :
Sl. Heads Amount
No. (Rs.)
(i) Loss of earning = 1,89,000=0
0
(ii) Expenses towards = 30,000=00
treatment
(iii) Special diet during = 4,000=00
treatment
(iv) Loss of earning = 9,000=00
(v) Pain and suffering = 10,000=00
TOTAL = 2,42,000=0
0
(4) Learned counsel for the appellant/insurer has
made a two-fold submission in this appeal. Firstly,
that the MACT ought to have taken the monthly income
of respondent No.1/claimant at Rs.1,500/- in view of
the admission made by the claimant in para 12 of his
testimony that he was earning Rs.40-50 per day on the
date of accident. Secondly, it was urged that
without giving the appellant/insurer an opportunity
of cross-examining the expert giving disability
certificate as also the treating Psychologist or
Surgeon, the assessment of the compensation awarded
by the MACT could not be sustained under law.
(5) Shri R.N.Jha, learned counsel for respondent
No.1/claimant argued in support of the impugned
award.
(6) Having considered the rival submissions, I have
perused the record.
(7) It is true that the claimant has in para 12 of
his testimony admitted before the MACT that he was
earning Rs.30-35 per day as an agricultural labourer
and after he started working at the petrol pump, the
owner of the petrol pump was paying him Rs.40-50 per
day as wages. However, it needs to be noticed that
the claimant had suffered a serious head injury due
to the accident and had undertaken operation of
montegra bone and had deposed that there was a
complete loss of memory due to the accident. The
claimant had also filed a certificate, Ex.P-72 given
by the Psychologist, which revealed traces of memory
loss due to the accident. The Psychologist, who
gave certificate, Ex.P-72, ought to have been
examined by the claimant so as to give an opportunity
to the insurer to test the genuineness of the
document by cross-examining the witness. The
testimony of Aganuram Sahu also shows that there was
functional imbalance in the mind of the claimant due
to the accident. The MACT, while determining the
daily income of the claimant, ought to have
considered the testimony of the employer Amit Chopra
in para 7 giving a detailed description of the
functions, which respondent No.1/claimant used to
perform at the petrol pump.
(8) The appellant/insurer had raised an objection
before the MACT while the disability certificate and
other documents were exhibited that the concerned
doctor should be examined before exhibiting the
documents. A Division Bench of this Court in Rajesh
Kumar Kaushik vs. Tej Narayan Singh, Miscellaneous
Appeal (C.) No.818/2007 decided on 20-07-2007, has
held as under :
“If the appellant really wants
support from the opinion of any
doctor or board of doctors, the
Insurance company and the owner of
the vehicle, against whom the said
opinion will be used, should be
given an opportunity to cross-
examine those persons for the
purpose of ascertaining the truth of
their opinion contained in the
certificate; it is preposterous to
suggest that by mere producing a
certificate showing that a person
had become disabled, he can force
the Insurance Company or the owner
of the vehicle to pay compensation
though the genuineness of the
document is not proved and they are
not in a position to cross-examine
the person who has allegedly given
such opinion.”
(9) In Rajesh Kumar Kaushik v. Tej Narayan Singh
(supra), the Court further held as under:
“that a duty is cast on the MACT to
ensure that process is issued to the
doctor concerned issuing certificate
of permanent disability and his
attendance secured in the Court.
Under the Motor Vehicles Act, 1988,
the MACT is under an obligation to
award just and reasonable
compensation and can not shirk its
responsibility by taking shelter of
the fact that the claimant had
failed to examine the doctor issuing
the certificate of permanent
disability. In most of the cases in
Chhattisgarh, the claimants are
illiterate and poor villagers and
sometimes illiterate widows, minor
children etc. The Presiding Judge of
the MACT in such cases should take
pains to see that process is issued
to the doctor concerned, his
attendance secured in the Court and
the insurer is given opportunity to
cross-examine the doctor. The
Presiding Judge of the MACT being
under an obligation to award just
and reasonable compensation should
not remain a silent spectator during
the proceedings”.
(10) In view of the law laid down in Rajesh Kumar
Kaushik vs. Tej Narayan Singh (supra), the impugned
award is liable to be set aside. In the interest of
justice and to give a fair opportunity to the
appellant/insurer to test the genuineness of the
certificate of permanent disability and the
certificate Ex.P-72 issued by the Psychologist by
cross-examining the doctor giving such opinion, it is
necessary to remand the matter to the MACT, and to
give an opportunity to the appellant/insurer to cross-
examine such witnesses.
(11) In view of the above, the appeal is allowed.
The impugned award is set aside and the matter is
remitted to the MACT. The MACT shall, after
complying with the direction in Rajesh Kumar Kaushik
vs. Tej Narayan Singh (supra) quoted in paragraphs 8
and 9, decide expeditiously the quantum of
compensation payable to the claimant under Section
166 of the Act, 1988 in accordance with law.
JUDGE