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2009 DIGILAW 499 (GAU)

National Insurance Co. Ltd. v. Lalropara

2009-07-29

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. Heard Mrs. Helen Dawngliani, Learned Counsel for the appellant as well as Mr. S.N. Meitei, Learned Counsel for the respondents. 2. By this appeal the opposite party No. 2, M/s. National Insurance Co. Ltd., the appellant herein has challenged the legality and correctness of the judgment and award dated 16.9.2008 passed by a learned Member, MACT, Aizawl in MAC Case No. 94 of 2007. 3. A claim petition under Section 163A was filed before the learned Motor Accident Claims Tribunal, Aizawl ('MACT, Aizawl') on account of receipt of injuries by the claimant-respondent No. 1 in vehicular accident occurred on 26.8.2007 at Rangvamual within the jurisdiction of Vaivakawn Police outpost. The injured-respondent claimant was the driver of the Tata Sumo being registration No. MZ-01 C/9059 and had been employed as a driver by the opposite party No. 2 at a monthly salary of Rs. 3,300. While driving the said vehicle he met with an accident and sustained injuries on both legs, limbs and had undergone treatment for the injuries sustained by him. The claim so made by the claimant was inquired into by the learned MACT, Aizawl by examining witnesses. After the inquiry the tribunal passed an award amounting to Rs. 3,41,600 with 9% interest per annum from the date of submission of the claim petition till realization from the Opposite Party No. 2, the appellant herein. 4. Mrs. Helen Dawngliani, Learned Counsel for the appellant has challenged this judgment and award mainly on two grounds: (1) that the learned Tribunal committed error and illegality in accepting the percentage of disability to the extent of 50% stated in Exhibit-C-6 without having the evidence of doctor concerned who issued the certificate. It is also submitted by her that the learned Tribunal's finding in respect of percentage of disability was totally wrong and perverse inasmuch as the tribunal is not an expert in respect of medical science. The certificate so issued by the doctor speaks for patient's injuries amount to 50% of his body which do not necessarily mean that the patient suffered 50% disability. This aspect of the matter could have been clarified had the doctor been brought to the witness box as one of the witnesses for the claimant. The claimant remains satisfied with his evidence only without labouring to prove the other facts by producing important witnesses like doctor. This aspect of the matter could have been clarified had the doctor been brought to the witness box as one of the witnesses for the claimant. The claimant remains satisfied with his evidence only without labouring to prove the other facts by producing important witnesses like doctor. Therefore, the findings of the learned Tribunal in respect of the percentage of disability as calculated and taken while computing the award, in my considered view cannot be legally accepted minus the evidence of the doctor who issued the Medical Certificate. It is also noticed that at no point of time the claimant-injured was produced/appeared before the Medical Board for assessment of percentage of disability suffered on account of injuries sustained by him. 5. Mr. Meitei, Learned Counsel for the respondent No. 1, however, in heart and soul supports the findings of the Tribunal in respect of the percentage of the disability. It is submitted by Mr. Meitei that though the certificate is wanting in respect of the percentage of disability of the injured concerned, the learned Tribunal in its own way basing the evidence available on record held that the injured claimant suffered 50% of the disability on account of injury sustained by him and accordingly the calculation made by the Tribunal does not warrant any interference from this Court. Mrs. Helen Dawngliani, Learned Counsel for the appellant in the context of non-examination of doctor concerned relied in the ratio laid down by this Court in the case between National Insurance Co. Ltd. v. Chandreswar Thakur and Ors. 2001 (1) GLT 393. This Court while deciding the above case (supra) held that for assessment of permanent disability on account of sustention of injuries by a particular person in a vehicular accident when the claim petition is made, a duty is cast upon the complainant to examine the doctor who issued the certificate. The same situation prevails over in our instant case where no such duty is found to have been discharged by the claimant. He rested every responsibility of proving the facts on the shoulder of the Tribunal without producing any cogent evidence. The same situation prevails over in our instant case where no such duty is found to have been discharged by the claimant. He rested every responsibility of proving the facts on the shoulder of the Tribunal without producing any cogent evidence. For this reason and discussions made and the ratio laid down by this Court in the context of non-examination of the doctor to prove the percentage of disability of the injured, this Court is of the view that the learned tribunal committed error in accepting permanent disability at 50% while calculating compensation. As such this Court finds ground to interfere with the award so passed by the learned Tribunal. 6. This Court does not like to consider the case in respect of the income of the claimant. The claimant is admittedly a driver of the vehicle under registration No. MZ-01 C/9059, which owned by the opposite party No. 2. The income certificate, Exhibit-C-2 speaks of that the claimant-injured being employed as the driver, he used to pay Rs. 3,300 as salary per month. This certificate is not disputed by the appellant herein. Therefore, this Court sees no reason to negate the said certificate, i.e., Exhibit-C-2. 7. The only disputing aspect of the matter being the disability part and the said matter being not proved through evidence, this Court finds it appropriate to remand the matter to the learned Tribunal to make a fresh decision after examining the doctor concerned. The judgment and award is accordingly set aside and quashed. 8. The matter is remanded back with a direction that it (the Tribunal) shall afford opportunity to the claimant to produce and examine the doctor. Dr. H. Saithanliana, Medical Officer, Emergency Department, Aizawl Civil Hospital who issued the medical certificate to prove the same. Parties are directed to make their presence available before the Tribunal within 20 (twenty) days from the date of this order. Registry is also directed to transmit the connected records forthwith to the learned Tribunal. 9. MAC appeal stands disposed of.