JUDGMENT
Rajesh Tandon, J.
1. Heard Shri Lok Pal Singh, counsel for the appellant and Shri D.S. Patni, counsel for the respondent No. 1.
This is claimant’s appeal for enhancement of amount of compensation.
2. By the present appeal, filed under Section 173 of Motor Vehicles Act, 1988, the appellant has prayed for enhancement of amount of compensation awarded by the judgment and award dated 17.12.2005 passed by the Motor Accident Claims Tribunal, Pauri Garhwal in M.A.C.P. No. 83 of 2004.
3. Briefly stated, a motor accident claim petition No. 83 of 2004 was made under Sections 166/140 of the Motor Vehicles Act for compensation of Rs. 6,50,000/-. According to the claimant, on 27.11.2003 he was coming to Kotdwar from village Kesta Mahabgarh by Jeep No. UP 20 B-7245. When the Jeep was standing in the left side of the road at Aamsaud at Kotdwar-Dugadda Marg, the claimant was crossing the road for urinal. Suddenly, the Jeep No. UP 06-4940 dashed the claimant by driving rashly and negligently. As a result of which, the claimant sustained injuries and his right knee and bones of right thigh got damaged. The claimant has become permanently disabled. The claimant has also sustained injuries over his head and left hand. The claimant was treated at Government Hospital, Kotdwar. Thereafter he was treated at Himalayan Institute, Jollygrant and the treatment is still going on. The claimant has spent a sum of Rs. 1,00,000/- towards medical expenses and Rs. 1,00,000/- is expected to be spent towards future medical expenses. It has been stated that Sushil Kumar Bhatt was the owner of the said Jeep and the said Jeep was insured with the National Insurance Company Limited.
4. The insurance company has filed a written statement. It has been admitted that the vehicle was insured with the insurance company. It has been submitted that the claimant was not a bona fide passenger. The driver was not holding a valid driving license and the insurance company is not liable to indemnify the claim as the driver of the jeep has violated the insurance policy. The fitness certificate, registration certificate, permit, etc. were not in order. The compensation has been claimed in exaggeration. The owner of the offending vehicle is liable to indemnify the claim. The claim petition is liable to be dismissed.
5. The owner of the offending vehicle has filed a written statement. It has been submitted that the vehicle was insured with National Insurance Company Limited for all the liabilities. The driver was not driving the offending vehicle rashly and negligently. It has been submitted that the claimant was travelling in another Jeep and suddenly came in the side of Jeep No. UP 20 B-7245. It has been submitted that the driver was having a valid driving license and the vehicle was insured. The insurance company is liable to indemnify the claim.
6. On the pleadings of the parties, following issues were framed:
1- D;k fnukad 27-11-2003 dks le; lqcg 10-30 cts LFkku xzke vkQlhM ds ikl tc ;k=h okgu la[;k ;w0ih0 20ch&7245 ls ;k=k dj jgk Fkk vkSj okgu [kM+h djds y?kq’kadk dks tk jgk Fkk rks ihNs ls vk jgs okgu la[;k ;w0ih0 06&4940 ds pkyd }kjk rsth o ykijokgh ls pykdj ;kph dks ihNs ls Vddj ekj nh ftlls ;kph dks xEHkhj pksVs vk;h \
2- D;k dfFkr nq?kZVuk Loa; ;kph dh ykijokgh ds dkj.k ?kfVr gqbZ \
3- D;k nq?kZVuk ds le; okgu pkyd ds ikl oS/k pkyd ykbZlsUl ugh Fkk \
4- D;k okgu dks nq?kZVuk ds le; chek ikWfylh dh ‘krksZ ds foijhr pyk;k tk jgk Fkk \
5- D;k ;kph dksbZ izfrdj ikus dk vf/kdkjh gS \ ;fn gkW rks fdruk o fdl i{k ls \
7. The claimant has examined himself as A.P.W. 1. In the documentary evidence, the claimant has produced one document as per list 31 ga, 4 documents as per list 5 ga, 42 documents as per list 17 ga, 8 documents as per list 23 ga.
The owner of the offending vehicle has produced three documents as per list 13 ga.
8. While deciding issue no. 1 as to whether the accident had taken place due to rash and negligent driving by the driver of jeep no. UP 06-4940 by dashing the claimant as a result of which the claimant sustained grievous injuries, issue no. 2 as to whether the accident had taken place due to own negligence of the claimant, issue No. 3 as to whether the driver of the offending jeep was not having valid driving license and issue No. 4 as to whether the offending vehicle was being driven in contravention of the insurance policy, the claims tribunal has taken into consideration the first information report i.e. paper No. 6 ga. The claims tribunal has also considered the statement of the claimant. On the basis of aforesaid, the claims tribunal has recorded the finding that the accident had taken place due to rash and negligent driving by the driver of Jeep No. UP 06-4940 and there was no negligence on the part of the claimant.
9. Further, the claims tribunal has taken into consideration the driving license of S.K. Bhatt, the driver of the offending vehicle which was valid from 1.9.2003 to 31.8.2006 and registration certificate and fitness certificate as well. All these papers were valid at the time of accident. Therefore, the claims tribunal has come to the conclusion that the driver of the offending Jeep was holding valid driving license at the time of accident and the Jeep in question was not being driven in contravention of the insurance policy.
10. While deciding issue No. 5 with regard to quantum of compensation, the claims tribunal has taken into consideration the injury report i.e. paper No. 32 ga which shows that the claimant has sustained seven injuries in which the injury No. 7 is a grievous one. The claims tribunal has also taken into consideration the receipts with regard to medical treatment which comes to Rs. 31,700/-. The claims tribunal has awarded the same to the claimant. Further, taking into consideration the fact that the claimant has been fitted with a steel rod in right thigh and he remained admitted in the hospital for a long period, the claims tribunal has awarded a sum of Rs. 2,00,000/-. Thus, a sum of Rs. 2,31,700/- has been awarded towards compensation.
Counsel for the claimant-appellant has submitted that the claimant has become permanent disabled and he has to go for operation of knee which would require more than Rs. 1,00,000/- towards expenses.
11. In the case of Kashmir Singh v. Santosh Singh Patiner and Ors. A.O. No. 393 of 2005, the Division Bench of High Court of Uttarakhand has held as under:
13. It is well settled position of law that if a claimant filed a claim petition before the Tribunal and he does not adduce any evidence thereof, the claim petition cannot be allowed without supporting evidence of the claimant. There may be cases where certain documents are produced. If those documents had not been connected by any oral evidence, it cannot be said that those documents are genuine. The court or the tribunal cannot rely thereupon. The general principle of evidence would guide the Tribunal while deciding the claim petition. The guiding principle had been incorporated in the Evidence Act. If the principles of the evidence were not made applicable in the cases of the motor accident claim, it would be very difficult for the Tribunal to decide the claim petition. For instance, a claim petition is filed by the claimant alleging therein that he sustained injuries and spent Rs. 2 lacs in the treatment and if no supporting evidence is produced and proved by the claimant that how many injuries have been sustained or whether he had sustained the injury in the accident, how the Tribunal can adjudicate the matter effectively. It is provided under the Evidence Act that the document forming the acts or records of the public officer are public documents. Supposing a certificate of medical board was produced before the Tribunal certifying the disability of the claimant and he did not pray for production of the certified copy or document and insists the Tribunal to read it in evidence without proving its genuineness. In case, the contention of the claimant is accepted the Tribunal would not only accept genuineness of the said document but also rely upon its contents without examining the doctors who allegedly issued such certificate. If any document is public document, in such a case, by production of a certified copy, the contents of the document or part of the document can be proved. It is also settled position by now that merely proving the handwriting of the person who had written a document, the veracity of the statement made in the said document cannot be proved. Such person must depose before the court in support of the contents and would face cross examination of the opponent. Otherwise such document can merely be taken into consideration for the purposes of showing that such document was issued once its genuineness is proved. But whether the contents of the certificate are correct or not, such facts cannot go into the evidence unless the author of the document deposes before the Court and faces cross-examination. The contents of a document without examining the author are worst pieces of hearsay evidence.
12. In view of the aforesaid principle, it will be open for the claimant to examine himself for the future operation and the same shall be considered by the claims tribunal as to what further amount is being necessary in order to satisfy the claim.
13. Subject to the aforesaid, appeal is allowed and remanded to the claims tribunal for deciding on the point of future medical expenses and for passing an appropriate order in the light of the observations made above. No order as to costs.
14. Amount of Rs. 25,000/- which has been deposited shall be transmitted to the claims tribunal concerned for payment to the claimant. So far as quantum of compensation is concerned, the same shall be in accordance with the final decision of the claims tribunal.
