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2009 DIGILAW 584 (GAU)

National Insurance Co. Ltd. v. Ismaeli

2009-08-19

H.BARUAH

body2009
JUDGMENT H. Baruah, J. 1. Heard Mrs. Helen Dawngliani, learned Counsel for the appellant as well as Mr. Saihmingliana Sailo learned Counsel for the respondent No. 1. None appears for and on behalf of respondent No. 2. 2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 16.9.2008 passed by learned Member, Motor Accident Claims Tribunal, Aizawl (for short the 'Tribunal') in MAC Case No. 42 of 2007. Being aggrieved by and dissatisfied with the appellant has challenged the legality and correctness of the award mainly on two counts : (1) that the income as deposed and taken by the tribunal cannot form the basis for calculation of the award since the Village Council President (for short 'VCP') is not competent authority to issue income certificate and (2) that the percentage of disability as calculated by the doctor and taken by the tribunal cannot also form the basis for the calculation of the award in view of non examination of doctor, who issued the medical certificate. 3. In the above two counts, Mrs. Helen Dawngliani, learned Counsel for the appellant relied the ratio of the following cases: (1) New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. reported in 2007 (3) GLT 444. (2) National Insurance Co. Ltd. v. Chandreswar Thakur and Ors. reported in 2001 (1) GLT 393. In the case of New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. (supra) this Court held that a VCP is not a competent authority to issue a certificate of income. The certificate so issued and accepted by the tribunal does not disclose the source of income of the claimant. This Court while delivering the judgment in New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. (supra) in the above circumstances also held that in absence of the proof of income certificate, notional income of the claimant is to be considered. For better appreciation paragraph 5 of the judgment New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. is reproduced below: 5. Mr. George Raju, learned Counsel for the appellant submits that the method of calculation adopted by the learned tribunal is wrong and arbitrary in as much 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. Ltd. v. Kawllian Thanga and Anr. is reproduced below: 5. Mr. George Raju, learned Counsel for the appellant submits that the method of calculation adopted by the learned tribunal is wrong and arbitrary in as much 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 has 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, I 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 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 does 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 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. 15,000 x 17 = 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. Before the tribunal the claimant proved the certificate of income issued by the VCP and in the certificate the income of the claimant has been shown as Rs. 3,000/- per month. This income certificate has been proved and marked as Exhibit C-7(a). 1,70,000/- (Rupees one lac seventy thousand) only. Before the tribunal the claimant proved the certificate of income issued by the VCP and in the certificate the income of the claimant has been shown as Rs. 3,000/- per month. This income certificate has been proved and marked as Exhibit C-7(a). In the certificate it is nowhere stated about the business or the source of income. It is mentioned in the certificate that she has earned Rs. 3,000/- per month on commission basis. This certificate, therefore, in view of the ratio laid down by this Court in the case between New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. (supra) cannot be considered as the basis for calculation of the award. 4. In regard to non-examination of the doctor, who issued the medical certificate marked as Exhibit C-6, Mrs. Helen Dawngliani learned Counsel for the appellant relied in the decision rendered by a Division Bench of this High Court in the case between National Insurance Co. Ltd. v. Chandreswar Thakur and Ors. reported in 2001 (1) GLT 393 , wherein in paragraph 2 of the judgment this Court observed that non-examination of the doctor effects considerably in computation of the award by the Tribunal. In the above paragraph the Division Bench of this High Court observed as under: 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. 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. In this case also the doctor who issued the certificate Exhibit C-6 was not brought into the witness box by the claimant to prove the percentage of disability. From the scrutiny of the Exhibit C- 6, it is noticed that he calculated 30% permanent disability on the basis of pain in her chest and lower part of her backbone. It is said that such pain was due to road traffic accident. Nowhere in the certificate (Exhibit C-6) the doctor has stated about the injuries and it nature allegedly sustained by the injured claimant. Therefore, the percentage of permanent disability at 30% calculated by the doctor concerned also cannot be taken into consideration from the face of Exhibit C-6. To prove this aspect a duty was cast upon the claimant to bring the doctor as one of the witnesses to the proceeding. No attempt was made by he injured claimant to examine the doctor as one of the witnesses for which the appellant becomes prejudiced. Appellant was not given a chance to cross-examine the doctor as to the percentage of disability of the injured claimant. The learned tribunal, therefore, in both counts committed error and illegality. 5. The judgment and award rendered by the learned tribunal has gone into. It is found that the tribunal took income of Rs. 3,000/- per month and permanent disability at 30% as indicated in the Medical Certificate Exhibit C-6. 6. Mr. Saihmingliana Sailo, learned Counsel for the claimant- respondent No. 1 per contra to the submission advanced by Mrs. Helen Dawngliani submits that the objection raised in regard to the acceptability of the income certificate cannot made at the appellate stage since no resistance was put at the time of proof of the same before the learned tribunal. In respect of proof of Exhibit C-6, Mr. Helen Dawngliani submits that the objection raised in regard to the acceptability of the income certificate cannot made at the appellate stage since no resistance was put at the time of proof of the same before the learned tribunal. In respect of proof of Exhibit C-6, Mr. Saihmingliana also submits that admissibility of this document also cannot be challenged at the appellate stage on account of non-examination of the doctor as the same was not resisted by the appellant at the time of proof the same before the learned tribunal. That apart it has been submitted by Mr. Saihmingliana that the document Exhibit C-6 is a public document issued by Government doctor. This argument cannot sustain in view of the Section 74 of the Evidence Act, 1872. This Court does not find any force in the argument advanced by Mr. Saihmingliana in the context of acceptance of the income certificate [Exhibit C-&(a)] as well as Medical Certificate (Exhibit C-6). 7. I have given my anxious consideration to the facts and the law laid down by this High Court. The impugned judgment and award rendered by the learned tribunal, Aizawl in view of the ratio raid down by this Court cannot sustain. It is accordingly set aside and quashed. The matter is remanded back to the tribunal for fresh enquiry after affording reasonable opportunity to both the parties to adduce evidence both oral and documentary. The parties are directed to appear before the learned tribunal on or before 11th September, 2009. Registry is directed to sent down the LCR forthwith to the learned Tribunal. 8. With the above directions, this appeal stands disposed of. No cost.