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Jharkhand High Court · body

2009 DIGILAW 806 (JHR)

Sukesh Kumar Mahto v. Yugal Kishore Prasad

2009-05-20

JAYA ROY, M.Y.EQBAL

body2009
JUDGMENT : 1. This appeal by the claimant/appellant is directed against the judgment and award dated 3rd October 2008 passed by Motor Accident Claims Tribunal, Lohardaga in Compensation Case No. 106 of 2000 whereby the claim application filed by the claimant for grant of compensation for the injuries sustained by him in Motor Vehicle Accident has bee dismissed. 2. The claimant/appellant was traveling in a reserved bus from Ranchi to Lohardaga. It was alleged that the bus was being driven in a very rash and negligent manner which resulted in an accident causing severe injury to the person of the appellant. According to the claimant, at the time of accident his monthly income was Rs. 2000/- in addition to Rs. 1500/- from selling vegetables in the market. Because of the injury in his hand, he has been deprived of from doing any work by the said hand and there is 70% disablement. In support of his claim, the appellant filed certified copy of F.I.R. certified copy of charge-sheet, certified copy of judgment of criminal case against the driver of the vehicle and certified copy of injury report, permanent disablement certificate issued by Chief Medical Officer, Lohardaga. The claimant also examined himself as a witness. In addition to that PW-2 was examined who supported the case of the claimant saying that in the said accident, right hand of the claimant has become disabled permanently. PW-3 is another witness, who also sustained injury in the said accident. He also supported the case of the claimant. Inspite of these evidence, the Tribunal dismissed the claim case on the ground that the examination of the doctor who ascertained the injury was essential. For better appreciation, the findings recorded by the Tribunal in para 7 of the judgment is reproduced herein below: Evaluating the oral evidence coupled with the documentary evidence filed by the claimant. I find that claimant was traveling by the offending bus namely Niraj Bux on the date of occurrence alongwith a Barati from Ranchi to Lohardaga and the driver of the bus was running rashly and negligently and for such negligent the driver namely Fakira Sao was convicted and injury report Ext-4 goes to show that claimant has sustained grievous injury on his right hand due to the accident and (Ext. 5) which is the permanent Disablement Certificate issued by the C.M.O. Lohardage goes to show that claimant has sustained 70% permanent disablement and such document has been formally marked. From the perusal of case record I find that on the prayer of the claimant Dusti summon was issued to the claimant for the production of the Doctor who had examined the claimant but he failed to produce the doctor for his evidence. And it is settled principle of law that to ascertain of the permanent injury and also for the nature and percentage of the permanent injury examination of the doctor is essential who has examined or treated the Claimant. On this point, I find that claimant has not been able to establish by the medical evidence to the fact that how much percent of permanent disablement he shad sustained and such injury has taken place due to the said accident. Having regard to the above facts I find and hold that claimant has not been able to establish that he has sustained permanent disablement due to the said accident and the percentage of his disablement and thus the claimant has no valid cause of action for the suit and the suit as framed is not maintainable and thus there is no necessity to grant any compensation to the claimant. Accordingly, all the issues are being decided against the claimant. 3. Before constitution of Motor Accident Claims Tribunal under the Motor Vehicles Act for the grant of compensation, in case of death or fatal injury, was governed by the Fatal Accident Act for which suit was to be filed. Because of the increase in the number of vehicles and also increase in the number of accidents, the Motor Accident Claims Tribunal has been constituted to impart speedy justice to the dependants or a bread-winner who died in a motor accident. Section 169 of the Act lays down the procedure and power of the Claims Tribunal, which reads as under: 169. Procedure and powers of Claims Tribunal - (1) In holding any injury u/s 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. Section 169 of the Act lays down the procedure and power of the Claims Tribunal, which reads as under: 169. Procedure and powers of Claims Tribunal - (1) In holding any injury u/s 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed and the claims Tribunal shall be deemed to be a Civil Court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Subject to any rules that may be made in this behalf the Claims Tribunal m ay for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the enquiry to assist it in holding the inquiry. 4. From bare reading of the aforesaid provisions, it is clear that in holding an enquiry on the claim application, the Claims Tribunal may, subject to any Rules that may be made in this behalf, follow summary procedure. 5. In exercise of power conferred by the Act, Bihar Motor Vehicle Rules 1992 has been framed. Chapter X of the 1992 Rules lays down the procedure regarding disposal of application for compensation arising out of an accident. Rule 226 provides the procedure of filing of application. Rule 227 speaks about fee payable in such application. Rule 232 provides that on receipt of an application, the Tribunal may examine the applicant on oath and the substance of such application shall be reduced in writing and shall be signed by the member constituting the Tribunal. Rule 233 provides the summary dismissal of application. Rule 234 lays down the manner of service of notice to the opposite party and Rule 235 lays down the provision of examination of opposite party. Rule 239 speaks about the manner of recording of evidence. Rule 233 provides the summary dismissal of application. Rule 234 lays down the manner of service of notice to the opposite party and Rule 235 lays down the provision of examination of opposite party. Rule 239 speaks about the manner of recording of evidence. For better appreciation the relevant rules 232, 233 and 239 are quoted herein below: 232: Examination of applicant- on receiving an application under Rule 226, the Claims Tribunal may examine the applicant upon oath, and the substance of such examination shall be reduced in writing and shall be signed by the member constituting the Tribunal or as the case may be, the Chairman. 233. Summary dismissal of application - (1) The Claims Tribunal may, after considering the application and the statement, if any of the applicant, recorded under Rule 232, summarily dismiss the application, if for reasons to be recorded, the Tribunal is of opinion that there are not sufficient grounds for proceeding therewith. 239. Recording of evidence: The member constituting the Claims Tribunal or the Chairman thereof shall make a brief memorandum of the substance of the evidence of every witness as examination of the witness proceeds and such memorandum shall be written and signed by the member or the Chairman thereof with his own hand and shall form part of the record. Provided that if the member of the chairman is prevented from making such memorandum, he shall record the reason of his inability to do so and shall cause such memorandum to be made in writing from his dictation and shall sign the same, and such memorandum shall form part of the record. Provided further that the evidence of any meticulous witness shall be taken down as early as may be, word for word. 6. From perusal of the provisions of Section 169 read with the relevant Rules, quoted hereinabove, it is manifestly clear that the Tribunal has to adopt the summary procedure in the disposal of the claim cases for the grant of compensation in case of death or injury in a motor vehicle accident. 7. 6. From perusal of the provisions of Section 169 read with the relevant Rules, quoted hereinabove, it is manifestly clear that the Tribunal has to adopt the summary procedure in the disposal of the claim cases for the grant of compensation in case of death or injury in a motor vehicle accident. 7. Having regard to the provisions of the Act and the Rules, in our view, therefore, if the documentary evidence in support of death or injury are filed and proved by the applicant in accordance with law, then the doctor who treated the injured and issued the certificate is not necessarily to be examined except in such cases where correctness and genuineness of those documents are seriously disputed or challenged by the opposite party. 8. In the instant case, it appears from the impugned judgment passed by the Tribunal that the respondent-owner of the vehicle although appeared but did not file any written statement. The claim case was proceeded ex-parte against the respondent-insurance company and its application for recall of the ex-parte order was also dismissed. The Tribunal noticed written statement of the insurance Company and found that there was an averment to the effect that the claimant has to be proved the injury and disablement by adducing competent medical witness. But the facts remains that the genuineness of the medical certificate admitted into evidence from the side of the claimant was not challenged by the Insurance Company to be forged or fabricated document. In such circumstance, the Tribunal ought not to have dismissed the claim case merely because of non-examination of the doctor who issued the injury/disablement certificate. In course of argument, learned Counsel appearing for the respondent-Insurance Company fairly submitted that since the factum of accident and injury was not disputed, the Tribunal should have awarded reasonable compensation. 9. On consideration of the facts of the case and the law discussed herein above, we have no option but to set aside the impugned judgment and award passed by the Tribunal and remanded the matter back to the tribunal for assessing the compensation and for passing an award. 10. Hence, this appeal is allowed and the impugned judgment and award passed by the Tribunal is set aside. The matter is remitted back to the Tribunal for passing the award afresh in the light of the direction and observation made herein above.