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2014 DIGILAW 835 (HP)

Rajesh Kumar v. Surinder Kumar

2014-07-04

MANSOOR AHMAD MIR

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JUDGMENT Mansoor Ahmad Mir, Chief Justice (Oral) This appeal (FAO No. 259 of 2007) alongwith sister writ petition No.1514 of 2007 are outcome of a common judgment and award dated 12.4.2007, hence taken up together for disposal by this common judgment. 2. Through the medium of the appeal, the claimant has invoked the jurisdiction of this Court, in terms of Section 173 of the Motor Vehicles Act, for short “the Act, against the judgment and award made by the learned Motor Accidents Claims Tribunal, Solan in MAC Petition No. 20-S/2 of 2006, whereby compensation to the tune of Rs. 3,69,968/- with 7.5% interest came to be awarded in favour of the claimant/appellant and against insurer/respondent No. 3, for short “the impugned award”. 3. The claimant/appellant has questioned the impugned award on the ground of adequacy of compensation. 4. The insurer-writ petitioner, through the medium of the writ petition under Article 226 and 227 of the Constitution of India has questioned the impugned award on the ground that the insurer is not liable and impugned award is excessive. 5. The owner and driver have not questioned the impugned award on any ground, thus, it attained finality so far as it relates to them. 6. The moot question is whether the writ petition is maintainable when the insurer has other remedy available. It is beaten law of the land now that the writ is not maintainable and insurer cannot question the impugned award on the ground of adequacy of compensation. 7. The only question now germane for consideration is whether the compensation in terms of impugned award is adequate or otherwise. 8. In order to determine the issue, a brief flashback of the facts, the womb of which has given birth to the present appeal and the writ petition in hand is essential. 9. Rajesh Kumar injured became victim of a vehicular accident on 23.7.2001 when he alongwith his wife and son was going on his scooter from Solan towards Rajgarh-Solan, was hit by a Maruti Van bearing registration No. HR-03C-0661, which was being driven by its driver, namely, Pardeep Kumar-respondent No. 2 rashly and negligently and sustained the injuries. 9. Rajesh Kumar injured became victim of a vehicular accident on 23.7.2001 when he alongwith his wife and son was going on his scooter from Solan towards Rajgarh-Solan, was hit by a Maruti Van bearing registration No. HR-03C-0661, which was being driven by its driver, namely, Pardeep Kumar-respondent No. 2 rashly and negligently and sustained the injuries. He was referred to Zonal Hospital Solan, from where he was referred to IGMC Shimla on 23.7.2001, remained admitted there in casualty department and was referred to PGI Chandigarh, but claimant decided to undergo treatment in Shimla Sanitarium hospital and was admitted in the said hospital, remained there admitted right from 26.7.2005 to 12.8.2005 where he was operated upon his right leg and right arm and rods were inserted, was discharged on 12.8.2005, and again admitted on 23.9.2005, has become permanent disable and sought compensation to the tune of Rs. 20 lacs, as per the breakups given in the claim petition. 10. The claim petition was resisted and contested by the driver, owner and insurer. 11. The Tribunal on the basis of the pleadings of the parties, framed the following issues: (i) Whether petitioner has suffered injuries on account of rash/negligent driving of the Maruti Van by the respondent No. 2? OPP (ii) If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled and from whom? OPP. (iii) Whether the respondent No. 2 did not possess a valid and effective driving licence, if so its effect? OPR-3. (iv) Whether the vehicle was being driven in contravention of the provisions of Motor Vehicle Rules and the standard terms of insurance policy? OPR-3. (v) Relief. 12. The claimant was asked to lead evidence and examined PW2 Dr. Anil Bansal, PW3 Dr. Avinash Sharma, Chief Medical Officer, PW4 HC Suneel Kumar PW5, Sameer Thakur and PW6 Pardeep Kumar as witnesses to prove his case and also appeared in the witnesses-box as PW1. 13. On the other hand, respondents have not led any evidence in rebuttal thus, the evidence led by the appellant/claimant remained un-rebutted. 14. The Tribunal after scanning the evidence, oral as well as documentary and after exercising guess work while keeping in view the pain and other injuries suffered by the claimant, awarded the compensation to the tune of Rs.3,69,968/- with 7.5% interest, as per the details given in paras 13 to 17 of the impugned award. 14. The Tribunal after scanning the evidence, oral as well as documentary and after exercising guess work while keeping in view the pain and other injuries suffered by the claimant, awarded the compensation to the tune of Rs.3,69,968/- with 7.5% interest, as per the details given in paras 13 to 17 of the impugned award. 15. The claimant being dissatisfied with the impugned award filed the present appeal and the insurer has filed the writ petition, as referred to above. 16. Admittedly, the claimant was admitted in the hospital and has proved by leading documentary evidence such as medical bills and cash memos that he has spent Rs.61,968/- during the treatment when he remained admitted in Sanitarium hospital Shimla. He has also placed on record the bills and cash memos to the tune of Rs.3898/- which he had spent during his treatment at Zonal hospital Solan and IGMC Shimla. Though the claimant has claimed Rs.1,20,000/- for treatment but there is no documentary evidence to this effect thus, the claimant was held entitled to the tune of Rs. 64968/- on this count, which was rightly granted by the Tribunal. 17. The claimant has claimed compensation being disabled, which has effected his earning capacity and left his hapless and helpless family members in misery. 18. The Tribunal, after making a guess work, came to the conclusion which is permissible in terms of the apex Court judgment in R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 , Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787 and Kavita versus Deepak and others, reported in 2012 AIR SCW 4771. 19. The Tribunal on a guess work held the claimant entitled to the tune of Rs. 25,000/- taking his monthly earning to the tune of Rs.5000/- for five months, under the head “loss of income”. 20. Dr. Anil Bansal has given the disability certificate and while tendering his statement, he has specifically stated that though he has not conducted the operation of the claimant, was under his treatment and suffered 65% disability which is corroborated by the statement of PW3 Dr. Avinash Sharma. 21. Mr. 20. Dr. Anil Bansal has given the disability certificate and while tendering his statement, he has specifically stated that though he has not conducted the operation of the claimant, was under his treatment and suffered 65% disability which is corroborated by the statement of PW3 Dr. Avinash Sharma. 21. Mr. Ashwani K. Sharma, Advocate for the Oriental Insurance Company has argued that usually as per practice, the disability certificate has to be issued by the Medical Board, constituted by the Head of the Institution, thus, the disability certificate is not admissible in evidence. He has relied upon a judgment delivered by the apex Court in Raj Kumar versus Ajay Kumar and another reported in (2011) 1 SCC 343 . It is apt to reproduce para 18 of the said judgment herein: “18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.” 22. Though the argument advanced by Mr. Ashwani K. Sharma, Advocate is very attractive but is not of any help to him for the simple reason that in this judgment it is held that if the doctor who has treated the injured has issued the disability certificate that can be taken into account. In this case, Dr. Though the argument advanced by Mr. Ashwani K. Sharma, Advocate is very attractive but is not of any help to him for the simple reason that in this judgment it is held that if the doctor who has treated the injured has issued the disability certificate that can be taken into account. In this case, Dr. Anil Bansal has stated that the claimant remained under his treatment and his evidence has not been shattered in cross-examination and even no question was put to him on this point by the learned counsel for the insurer who was conducting the case before the learned Tribunal. Thus, the ratio laid in the judgment supra, goes in favour of the claimant and against the insurer. Accordingly, it is held that the disability certificate is admissible. 23. The Tribunal held that the disability has effected the earning capacity of the claimant and held him entitled to Rs.1250/- per month under the head “loss of source of income” and applied the multiplier of “15”. 24. It is argued by Mr. Karan S. Kanwar, Advocate for the claimant that the compensation under the heads “loss of source of income” and “earning capacity” is meager. The argument advanced by Mr. Karan Singh Kanwar, Advocate is not tenable for the simple reason that after assessing the disability and loss of earning capacity, the details of which have been given in para 16 of the impugned award, the Tribunal has rightly held that the claimant has lost the earning capacity to the tune of Rs.1250/ per month, in terms of the apex Court judgment supra. Further, the learned counsel of the appellant-claimant submitted that the multiplier of “16” was applicable, is not legally correct for the simple reason that as per the Schedule appended to the Motor Vehicles Act, the multiplier for the age 30-35 is “17” while keeping in view the dictum laid down in Sarla Verma’s case reported in AIR 2009 SC 3104 , by the apex Court upheld by the Constitution Bench, the multiplier of “15” is rightly applied. 25. Having said so, the compensation awarded in terms of impugned award is just and appropriate and can neither be said to be inadequate nor excessive in any way. 26. As a consequence, the appeal as well as the writ petition is dismissed. 25. Having said so, the compensation awarded in terms of impugned award is just and appropriate and can neither be said to be inadequate nor excessive in any way. 26. As a consequence, the appeal as well as the writ petition is dismissed. The amount deposited, be released in favour of the claimant through payee’s cheque, after proper identification, strictly in terms of the conditions contained in the impugned award. Pending applications, if any also stand disposed of. 27. Send down the record alongwith.