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2014 DIGILAW 366 (CHH)

Vimal Kumar Yadav v. Mukesh Tiwari

2014-10-16

P.SAM KOSHY

body2014
JUDGMENT P. Sam Koshy, J. 1. The instant appeal has been preferred by the appellant under Section 173 of the Motor Vehicles Act challenging the award dated 29.8.2011 passed by the 1st Additional Motor Accident Claims Tribunal, Raipur, District Raipur (CG) (for short 'the Tribunal') in Claim Case No. 110/2010. By way of the said award, the Tribunal has rejected the claim application/compensation for the motor accident and the injury sustained by the appellant/claimant. Brief facts leading to the instant appeal are that on 29.4.2009, the appellant/claimant, in the capacity of Conductor of a minibus bearing registration No. CG 04/E/0378 (for short 'the Bus') owned by respondent No. 1 namely Mukesh Tiwari was traveling from Devbhog to Raipur and when they reached the main road, Amanaka, the Bus met with an accident as a result of which, the appellant/claimant is said to have received injuries particularly that of multiple fractures on both his legs. It is the case of the appellant/claimant that immediately after the accident, he was rushed to a nearby Government hospital and from there, he was referred to Medical College, Raipur on the same day where he remained under treatment from 29.4.2009 to 19.9.2009. In the course of the treatment, the present appellant had undergone a couple of surgeries and even steel rods were inserted in his right leg on account of complicated multiple fractures received by him in the said accident. Later on he was discharged on 19.9.2009 and again when some complications took place in his right leg, he was again admitted in private hospital i.e. in Life Worth Hospital, Samta Colony, Raipur wherein, during the course of treatment, the right leg of the appellant/claimant had to be amputated on 23.1.2010. In January, 2010, the appellant/claimant is said to have filed a claim application before the Tribunal wherein he has very specifically narrated the entire accident and had also spelled out the nature of injury and has also disclosed the fact that in the course of his treatment, his right leg had to be amputated. 2. In January, 2010, the appellant/claimant is said to have filed a claim application before the Tribunal wherein he has very specifically narrated the entire accident and had also spelled out the nature of injury and has also disclosed the fact that in the course of his treatment, his right leg had to be amputated. 2. After the pleadings were complete, while recording the evidence, the appellant/claimant has specifically deposed before the Tribunal that on 29.4.09, in the course of his employment as Conductor in the Bus owned by respondent No. 1, which was duly insured by respondent No. 2 i.e. National Insurance Company, he met with an accident and was put to treatment from 29.4.09 to 19.09.09 at Medical College, Raipur and later on at Life Worth Hospital from 22.1.10 to 30.1.10 and there, he had to undergo amputation part. 3. In the course of the evidence as is reflected from the deposition of the appellant (DW-1), it is evident that even the Tribunal itself has made an observation in para-6 of its judgment that the applicant has exhibited documents relating to his treatment both at the Medical College, Raipur as well as at Life Worth Hospital, which have been duly exhibited as Ex. P-40 to Ex. P-56 which includes the disability certificate of about 65% as granted by the Disability Board which was also marked as Ex. P-36. 4. After recording of the evidence, the Tribunal has, vide impugned award dated 29.8.2011 rejected the claim of the appellant on the ground that the present appellant has not been able to prove before the court below that the amputation part has occurred because of the accident that took place on 29.04.09. The Tribunal, while rejecting the claim application, took note of an observation made by plastic surgery department of the Medical College Hospital, Raipur in Ex. P-5 and took an adverse inference that "Patient is a O/C/O of femur interlocking (Rt) c Tibia interlocking (K) Enter fixature (Rt) Tibia". O/C/O (Old case of Operation) " it does not appear as a case where the amputation of the right leg of the appellant took place because of the injury that he has sustained in the alleged accident on 29.4.2009. However, a bare perusal of the other records which have been exhibited by the appellant, particularly that of Ex. O/C/O (Old case of Operation) " it does not appear as a case where the amputation of the right leg of the appellant took place because of the injury that he has sustained in the alleged accident on 29.4.2009. However, a bare perusal of the other records which have been exhibited by the appellant, particularly that of Ex. P-34 which is a discharge ticket by the Life worth Hospital, Raipur dated 30.1.2010 which clearly shows that the amputation of the right leg of the appellant was done on 23.1.2010 However, while the Tribunal reached to the conclusion that the appellant has not been able to establish that it is a case of the amputation part and the disability part having arisen because of the accident that took place on 29.04.2009 and accordingly, rejected the claim application. 5. Counsel for the appellant today, has moved an application under Order 41 Rule 27 registered as 1A Nos. 2 and 3 which are certain documents to show the immediate treatment which was provided to the appellant on 20.04.2009 itself i.e. on the date of accident and immediately thereafter, so as to reach to a conclusion that in fact the present appellant met with an accident on 29.04.2009 and that he had received multiple serious fractures on his both legs. After taking into consideration the documents showing amputation part done on 23.1.2010, the same would correlate the entire facts of the case proving the extent of the injury and the subsequent amputation part of the appellant. 6. It is trite to refer to the judgment of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another, (2011) 1 SCC 343 wherein Supreme Court in very categorical terms has held in para-16 of its judgment as under:-- 'The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment.' 7. Further, the Hon'ble Supreme Court again in the same judgment also has referred to the role and responsibility of the Tribunal and held as under:-- "The Tribunals should realize that a busy surgeon 29.8.2011 passed by the 1st Additional Motor Accident Claims Tribunal, (for short 'the Tribunal') Raipur, District Raipur (CG) in Claim Case No. 110/2010, may be able to save 10 lives or perform twenty surgeries in the time he spends to attend the Tribunal to given evidence in one accident case. Many busy surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating doctors on commission, after ascertaining their convenient timings. Secondly, if the doctors attend the Trib Raj Kumar vs. Ajay Kumar and Another unal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. xxxxxxxxxxxxxxx. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral respondents, they may be marked by consent thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that courts/Tribunals show concern for litigants and witnesses." 8. Recently, this Court also, in the case of Sant Kumar Banjare Vs. State of Dhoor Singh & Others in MAC No. 894/2013, relying upon the decision of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another (supra) had remitted the matter for reconsideration of the claim application of the claimant under somewhat similar facts. 9. State of Dhoor Singh & Others in MAC No. 894/2013, relying upon the decision of the Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another (supra) had remitted the matter for reconsideration of the claim application of the claimant under somewhat similar facts. 9. Taking into account the observations made by this Court in the case of Sant Kumar Banjare Vs. Dhoor Singh Thakur (Dead) and Others in M.A.(C) No. 894 of 2013 as also the observations made by the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another (supra), this Court had remitted the matter back to the Tribunal for granting an opportunity to the appellant to produce the necessary medical evidence to prove his case in respect of the accident, injury and the disability part. A perusal of the order of the Tribunal would show that this aspect has not been looked into by the Tribunal and taking strict and a very conservative approach, the claim application of the appellant was rejected only on the basis of the entries made in Ex. P-5, whereas the entries made in Ex. P-5 perhaps are only the opinion of the Plastic Surgery Department and that was not the final opinion of the Department where the claimant had undergone his entire treatment all along. It appears that the opinion of the Plastic Surgery Department was only in respect of the nature of treatment which was to be provided exclusively by the Plastic Surgery Department and it was not the general opinion on the medical condition of the claimant and therefore, relying on Ex. P-5 by the Tribunal does not seem to be proper and justified and the opinion of the Plastic Surgery Department cannot be said to be the exclusive or conclusive factor for rejecting the claim application of the claimant. 10. P-5 by the Tribunal does not seem to be proper and justified and the opinion of the Plastic Surgery Department cannot be said to be the exclusive or conclusive factor for rejecting the claim application of the claimant. 10. Taking into consideration the judgment of the Supreme Court and the judgment passed by this Court, this Court is of the opinion that it is a fit case where the matter can be remitted back to the Tribunal for reconsideration of the evidence of the claim wherein, it is directed that the Tribunal shall provide the claimant another opportunity to produce all relevant documents particularly in respect of the terms that he had undertaken immediately after the accident, till he was finally discharged and if required, the appellant can also move appropriate application for either summoning any documents from the Hospital where he had undergone treatment and if required, he may also move appropriate application getting these Doctors examined on commission. Accordingly, the matter is remitted back with a direction to that the Tribunal that if required, the Doctor who has treated the appellant in the instant case particularly the Doctor at the Medical College at Raipur and the Doctor at Life Worth Hospital, Raipur who had conducted amputation can also be examined on commission and if the accident, injury and disability is proved in this case, then the claimant would not be deprived of the original claim of compensation which, as on date, by the impugned order, the Tribunal has denied. 11. With these observations, the present appeal is allowed in part. The impugned award dated 29.8.2011 passed by the Tribunal in Claim Case No. 110/2010 is set aside and the matter is remitted back to the Tribunal for passing an order afresh after affording an opportunity to the appellant/claimant as well as the respondents to lead fresh evidence, if they so desire. No order as to costs. 12. With consent of the parties, they are directed to appear before the Tribunal on 24.11.2014. Registry is directed to immediately send the record of the case back to the Tribunal.