Md. Mortuz Ali v. Divisional Manager, Oriental Insurnace Co. Ltd.
2018-08-03
RUMI KUMARI PHUKAN
body2018
DigiLaw.ai
JUDGMENT : Rumi Kumari Phukan, J. Heard learned counsel for the appellant Mr. H. Das and also the learned counsel for the respondent No. 1 Mr. A. Dutta. Also heard, learned Mr. A. F. N. U. Mollah counsel for the respondent No. 2. 2. The present appeal has been preferred against the impugned order and award dated 10.12.2010 vide MAC Case No. 194/2005 passed by the Ld. Member, Motor Accident Claims Tribunal, Goalpara though the tribunal has dismissed the petition by holding that he has failed to prove his claim. 3. I have also considered the matters on record and perused the details in the LCR. 4. Brief case of appellant is that, he filed the claim petition before the MAC Tribunal, Goalpara seeking compensation of Rs. 4,30,000/- on account of the injury he sustained in a road traffic accident on 31.01.2004 at 11-00 AM, arising out of vehicle No. AS-18/6654 (Motor Cycle). On the fateful day, when he was going by the side of the road on foot suddenly Motor Cycle No. AS-18/6654 hit him from back side, as a result of which he fell down on the ground and got fractured on his right Patella. Thereafter, he was taken to the Lakhipur Hospital where first aid was given and thereafter, he was taken to Solace Nursing Home, Goalpara. Then to another Nursing Home at Adabari, Guwahati where he continued his treatment. It has been submitted by the Ld. counsel for the appellant that he earned Rs. 4,000/- per month and due to the injury he suffered physical disability. It was his claim that due to rash and negligent driving of the aforesaid vehicle the accident had occurred. 5. The aforesaid claim petition was contested by the Oriental Insurance Company by filing their written statement. They submitted that the liability is subject to the condition of policy and subject to the strict proof by the claimant that the accident has occurred due to rash and negligent driving of the vehicle. 6. The owner and driver of the vehicle did not contest the case. The claimant examined himself and two other witnesses in support of his case. The Ld. Tribunal after examination of evidence on record came to a finding that the claimant has failed to prove his claim against opposite parties hence the claim petition was dismissed by the impugned order.
The owner and driver of the vehicle did not contest the case. The claimant examined himself and two other witnesses in support of his case. The Ld. Tribunal after examination of evidence on record came to a finding that the claimant has failed to prove his claim against opposite parties hence the claim petition was dismissed by the impugned order. Challenging the aforesaid findings, present appeal has been preferred. 7. Learned counsel for the appellant has submitted that the Ld. Tribunal has failed to appreciate the evidence on record in its proper perspective and has come to an erroneous finding ignoring the evidence of the appellant. It is submitted that although the medical documents were also filed but the Ld. Tribunal discarded the same, which is not proper and hence the order of dismissal is erroneous and illegal. 8. Learned counsel for the respondent however submitted that there is no such infirmity in the order so passed by the Tribunal as the appellant himself has failed to produce proper evidence before the Tribunal in support of his claim. 9. Pursuant to the rival submission, I have also examined the matters in the LCR. So far as the evidence of the appellant as claimant is concerned, it reflects that although he has narrated all about the incident and medical treatment, he had carried out after the accident but has not produced even a single medical document in support of his claim. His verbal testimony is not supported by any medical document about the operation/treatment undergone after the accident. Moreover, no witness/family members or any independent witness was examined regarding the accident, although it was occurred at day time 11:00 AM. 10. Although the verbal testimony of the claimant can very well be accepted even without corroboration but in this case the testimony of the claimant cannot be accepted to be the true version of the occurrence for so many reasons. Firstly, he has not produced any medical documents nor examined any other witness in his support. Secondly, his other witness PW-2 has referred about some operation on his Patella, which is even not uttered by the claimant himself. His evidence is also silent regarding the examination by Board of doctors to certify about his disability, which has been testified by PW-2. 11.
Secondly, his other witness PW-2 has referred about some operation on his Patella, which is even not uttered by the claimant himself. His evidence is also silent regarding the examination by Board of doctors to certify about his disability, which has been testified by PW-2. 11. Thirdly, most vital aspect that has destroyed the credibility of the evidence of claimant is that some medical documents have been exhibited by one PW-3, who is a advocate's clerk who is in fact, has no knowledge about the occurrence neither he has uttered anything to show that these are the medical documents connected to the claimant's case. The said PW-3 has admitted that he has no idea about the content of the document, or the signature in the documents. He simply exhibited certain medical documents Ext-1 to 32 without explaining the content in the reference of the said documents as to what for it has been submitted. It is settled proposition of law that mere exhibiting a document will not be enough unless the content of the document is proved, which has happened in this case. The said PW-3 except exhibiting documents is totally silent as to why he has produced those documents. In absence of any explanation on the part of the claimant itself for non-production of medical document on his part even the same is produced by another witness, that too without any explanation, the authenticity of such document cannot be accepted. 12. However, it is to be noted that the claimant alleged to have sustained injury on 31.1.2004 but he was stated to be examined by the medical board on 30.12.2008 that is after 4 years and PW-2 has not examined said claimant at the initial point of time, nor he knows the claimant as he has said in his evidence. The evidence of PW-2 is also not at all specific, that he has personally examined the claimant/appellant but he has simply exhibited the document. Thus, certificate issued by Board and the signature of Chairman of the Board without examining the patient is not enough to support the disability of the claimant. That apart, claimant himself has not stated anything about the disability to the extent of 60%, as has been indicated in the aforesaid certificate issued by the Board.
Thus, certificate issued by Board and the signature of Chairman of the Board without examining the patient is not enough to support the disability of the claimant. That apart, claimant himself has not stated anything about the disability to the extent of 60%, as has been indicated in the aforesaid certificate issued by the Board. Obviously, such an evidence of the claimant is not at all convincing to prove that if at all he sustained injury on his person on the particular day as has been projected in the case in order to claim compensation. Needless to say one has to come with fair manner before the court of law and authenticity of document and evidence is the hall mark of the truth in any proceeding before a Court of law. Unless the Court is convinced about the authenticity of a case no relief could be awarded to any person. As it is found that the Ld. Tribunal has rightly come to a finding that the appellant has failed to prove his claim and has dismissed the case. I found no infirmity in the award so passed by the Ld. Tribunal. 13. The appellant by way of another Interlocutory Application No. 533/2018 sought for reproduction of the medical documents that was already filed in the MAC Case No. 194/2005 but such prayer is of no consequence as all those medical documents are already in LCR and I have discussed all about medical documents produced by PW-3. The said application deserved no consideration in view of matters on record and the same is dismissed accordingly. 14. Reliance is placed by the learned counsel upon the decision of State of Rajasthan Vs. T. N. Sahani & Ors., (2001) 10 SCC 619 , Union of India Vs. K. V. Lakshman & Ors., (2016) 13 SCC 124 that the litigants has a right to be heard on facts and law by the First Appellate Court which is settled proposition of law. Needless to say that in the present case all facts and circumstances has been discussed above. 15. Taking into all the above findings and discussions above, I found no merit in the appeal and same is dismissed.