Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1325 (HP)

Anita Chaudhary v. Ajay Kumar

2019-09-06

JYOTSNA REWAL DUA

body2019
JUDGMENT : Jyotsna Rewal Dua, J. After holding that accident in question had occurred due to rash and negligent driving on part of driver-respondent No.1, learned Motor Accident Claims Tribunal-I, District Sirmaur, awarded a compensation amount of Rs.20,000/- alongwith interest @ 7.5% per annum to the appellant from the date of filing of petition till the payment. Liability to pay the compensation was fastened upon respondents No.1 and 2, to be indeminfied by respondent No.3 insurer. Appellant has filed present appeal seeking enhancement of the compensation amount awarded to her. Whether disability certificate (Ex.PX) issued two years later from the date of accident can be relied upon without its author stepping into witness box co-relating the injuries suffered in the accident with the disability certificate especially when MLC (Ext.PW3/A) prepared on the date of accident shows the injuries suffered by the appellant as simple in nature with no fracture involved, is the question involved in the instant case. 2. Heard learned counsel for the parties and gone through the record. 3. (I). It is not in dispute that accident occurred on 19.02.2009, whereunder the appellant suffered injuries. Issue No.1 framed in this regard has been decided by learned Tribunal below in favour of the appellant and there is no challenge to this finding. The issue to be considered in the present appeal is in respect of (i) the nature of the injuries suffered by the appellant and (ii) the evidence adduced by her to prove such injuries. 3(ii) Seeking enhancement in the compensation amount, learned counsel for the appellant contended that disability certificate Ext.PX, issued by Medical Board of Regional Hospital, Nahan, determining 10% permanent disability of the appellant has been wrongly discarded by learned MACT. 3(iii) Appellant has brought on record the MLC dated 19.02.2009 (Ext PW-3/A), prepared immediately after the accident i.e. at 9.45 AM on 19.02.2009. MLC has been issued by Civil Hospital Paonta. Particulars of injuries in MLC are as follow:- "Alleged H/o sustained injuries in a road side accident 1 = hours back on examination following injuries noted. There is pain and tenderness on back and lumber region unable to stand up and pain on movements. Movements in lower limbs is normal. She is fully conscious and alert. No external mark of injuries could be detected." But for pain & tenderness on back & lumber region, no injuries were detected on the appellant. There is pain and tenderness on back and lumber region unable to stand up and pain on movements. Movements in lower limbs is normal. She is fully conscious and alert. No external mark of injuries could be detected." But for pain & tenderness on back & lumber region, no injuries were detected on the appellant. She was referred to Regional Hospital, Nahan, for opinion of radiologist on X-rays. Radiologist gave his opinion, on the basis of which, it was concluded in MLC on 7.3.2009 that there was no fracture and the injuries suffered by the appellant were simple in nature. 3(iv) MLC Ext.PW3/A was proved by PW3 Dr. K.D. Bhatt, who stated that; MLC was issued by him; Injured had pain in lower back and was finding it difficult to stand; The injuries suffered by her were simple in nature; He further stated that the appellant was referred by him to the Radiologist in Civil Hospital, Nahan, for opinion on X-rays No.327-328; Radiologist after examining X-rays opined that there was no fracture, therefore, injuries of appellant were simple in nature. 3(v) Learned counsel for the appellant vehemently argued that the appellant has brought on record the disability certificate (Ext.PX), to the effect that she had 10% permanent disability on account of 'old compression spine'. It is further contended by learned counsel for the appellant that learned Tribunal below has erred in ignoring this certificate, while determining compensation amount. 4. (I) In my considered view no infirmity can be found with the observations of the learned Tribunal below in not relying upon disability certificate (Ext.PX) for the reasons:- (a) The disability certificate (Ext.PX) has been issued on 19.03.2011. Whereas the accident in question occurred on 19.02.2009. There is difference of two years between the date of the accident & the date of issuance of Ext.PX. Therefore, without any further evidence, Ext.PX neither can be relied upon nor can it be co-related to the injuries suffered by the appellant on 19.02.2009. The co-relation had to be proved by leading cogent and reliable evidence by the appellant, more so, in the instant case when MLC Ext.PW3/A, and the opinion of Radiologist of R.H, Nahan was that appellant suffered no fracture and the injuries caused to her in the accident were simple in nature. (b) The judgment cited by learned counsel for the appellant reported in titled Vimla Devi & others Vs. (b) The judgment cited by learned counsel for the appellant reported in titled Vimla Devi & others Vs. National Insurance Company Limited & others, (2019) 2 SCC 186 pertains to situation where document produced on record to prove the accident in question was not being considered on ground of having been marked & not exhibited. In the instant case, the accident is not in dispute, but the nature of injuries suffered in the accident and co-relation of these injuries with the disability certificate (Ext.PX) is the question to be adjudicated. Appellant has not been able to co-relate the disability certificate (Ext.PX) with the injuries allegedly suffered by her in the accident in question. The only authentic document produced by her in respect of nature of the injuries suffered by her is MLC (Ext.PW3/A), as per which, the injuries were simple in nature with no fracture. (c) i) It is apt to refer to the judgment passed by the High Court of Andhra Pradesh in titled Sannala Bhaskar Reddy vs. M. Sreenivasulu and another, (2010) ACJ 1122 wherein it was held as under:- "6. Keeping the above principles in view, the controversy in this case needs to be considered. Though Exh. A5 disability certificate, was marked and its author was examined as PW 2, the same cannot have any evidentiary value in view of the decision of the Apex Court in Rajesh Kumar v. Yudhvir Singh, (2008) ACJ 2131 (SC), wherein it was held that on the basis of disability certificate issued two years after the accident by a civil surgeon, who did not treat the injured immediately after the accident, disability cannot be determined. Insofar as the agricultural holding of the appellant is concerned, Exh. A7 is on the record to show that he was having 10 acres of agricultural dry land. Exh.A2 wound certificate shows that he suffered crush injury on both the thighs and his ankle was fractured. Therefore, though much importance cannot be given to Exh.A5 and evidence of PW2, disability may be taken as 25 per cent and value of supervisory charges can be taken as Rs.1,000 per month. Applying the multiplier of 14.81 as per Bhagwan Das V. Mohd. Arif, (1987) ACJ 1052 (AP), loss of supervisory charges at 25 per cent disability would be Rs.44,430. Applying the multiplier of 14.81 as per Bhagwan Das V. Mohd. Arif, (1987) ACJ 1052 (AP), loss of supervisory charges at 25 per cent disability would be Rs.44,430. In addition to this, the appellant would be entitled to Rs.15,000 each towards medical expenses and pain and suffering and a sum of Rs.7,500 for loss of earnings for three to four months, totalling Rs.81,930, which may be rounded of to Rs.82,000. In the absence of any other clinching evidence with regard to supervisory charges, the appellant would not be entitled to any other claim." (c)ii) Hon'ble Apex Court in titled Rajesh Kumar @ Raju Vs. Yudhvir Singh and another, (2008) 7 SCC 305 considered the admissibility of a disability certificate issued 2 years later to the date of accident when author of the certificate was not examined, it was held as under:- "9. The certificate in question in this case was obtained after two years. It is not known as to whether the civil surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60 per cent was calculated on the basis of the provisions of Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's compensation Act which, in our opinion, ex facie has no application, the same in our opinion, cannot be permitted to be raised for the first time." (c)iii) Regarding mode of proof of document, Division Bench of this Court, in titled Oriental Insurance Company Limited Vs. Gian Chand, (2002) ACJ 764 held as under:- "20. Thus it was incumbent upon the appellant to have proved these documents, Exhs. RA to RD in accordance with law. We may point out that admissibility is one thing and mode of proof is another. 21. Gian Chand, (2002) ACJ 764 held as under:- "20. Thus it was incumbent upon the appellant to have proved these documents, Exhs. RA to RD in accordance with law. We may point out that admissibility is one thing and mode of proof is another. 21. Appellant has led no evidence to prove these documents by examining officials of the insurance company as well as the transport authority and also the registration and licensing authority concerned. This was the least that was expected by the appellant in order to substantiate its claim that no liability can be fixed on it in view of the above mentioned facts. There is no evidence to that effect. To be fair to Mr. Ashwani Kumar Sharma, we may point out that he referred to a recent decision of this court and urged that since Exh. RA to Exh. RD were not objected to, therefore, those need to be looked into. For the view that we have taken is on the basis of cases in Sait Tarajee Khimchand V. Yelamarti Satyam, AIR 1971 SC 1865 ; Ramji Dayawala & Sons (P) Ltd v. Invest Import, AIR 1981 SC 2085 and Chimajirao Kanhojirao Shirke v. Oriental Fire & Genl. Ins. Co. Ltd., (2001) ACJ 8 (SC), we are not referring to the said decision." In view of ratio laid by Hon'ble Apex Court in titled Govind Yadav Vs. New India Insurance Company Limited, (2011) 10 SCC 683 and titled Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Ltd. and Another, (2011) 10 SCC 756 adequate compensation for permanent or temporary disability can be awarded only where such disability, either permanent or temporary, is directly attributable to the accident in question. However, this is not so with the case in hand since the nexus between the resultant disability and the alleged accident has not been established at all. 4(ii). Therefore, no reliance can be placed on disability certificate Ext.PX, which has not been proved in accordance with law by examining the author of the document to depose about the disability as well as to co-relate the same with the injuries suffered by the appellant in the accident in question, more so, when nature of injuries suffered by the appellant, in the accident in question as per MLC Ext.PW3/A were simple in nature with no fracture and the alleged disability certificate was issued two years later. 5. 5. In view of the above discussions, no error can be found in the impugned award passed by the learned Tribunal below. Accordingly, the appeal is dismissed. Pending applications, if any, also stand disposed of accordingly. JUDGMENT : Jyotsna Rewal Dua, J. After holding that accident in question had occurred due to rash and negligent driving on part of driver-respondent No.1, learned Motor Accident Claims Tribunal-I, District Sirmaur, awarded a compensation amount of Rs.20,000/- alongwith interest @ 7.5% per annum to the appellant from the date of filing of petition till the payment. Liability to pay the compensation was fastened upon respondents No.1 and 2, to be indeminfied by respondent No.3 insurer. Appellant has filed present appeal seeking enhancement of the compensation amount awarded to her. Whether disability certificate (Ex.PX) issued two years later from the date of accident can be relied upon without its author stepping into witness box co-relating the injuries suffered in the accident with the disability certificate especially when MLC (Ext.PW3/A) prepared on the date of accident shows the injuries suffered by the appellant as simple in nature with no fracture involved, is the question involved in the instant case. 2. Heard learned counsel for the parties and gone through the record. 3. (I). It is not in dispute that accident occurred on 19.02.2009, whereunder the appellant suffered injuries. Issue No.1 framed in this regard has been decided by learned Tribunal below in favour of the appellant and there is no challenge to this finding. The issue to be considered in the present appeal is in respect of (i) the nature of the injuries suffered by the appellant and (ii) the evidence adduced by her to prove such injuries. 3(ii) Seeking enhancement in the compensation amount, learned counsel for the appellant contended that disability certificate Ext.PX, issued by Medical Board of Regional Hospital, Nahan, determining 10% permanent disability of the appellant has been wrongly discarded by learned MACT. 3(iii) Appellant has brought on record the MLC dated 19.02.2009 (Ext PW-3/A), prepared immediately after the accident i.e. at 9.45 AM on 19.02.2009. MLC has been issued by Civil Hospital Paonta. Particulars of injuries in MLC are as follow:- "Alleged H/o sustained injuries in a road side accident 1 = hours back on examination following injuries noted. There is pain and tenderness on back and lumber region unable to stand up and pain on movements. MLC has been issued by Civil Hospital Paonta. Particulars of injuries in MLC are as follow:- "Alleged H/o sustained injuries in a road side accident 1 = hours back on examination following injuries noted. There is pain and tenderness on back and lumber region unable to stand up and pain on movements. Movements in lower limbs is normal. She is fully conscious and alert. No external mark of injuries could be detected." But for pain & tenderness on back & lumber region, no injuries were detected on the appellant. She was referred to Regional Hospital, Nahan, for opinion of radiologist on X-rays. Radiologist gave his opinion, on the basis of which, it was concluded in MLC on 7.3.2009 that there was no fracture and the injuries suffered by the appellant were simple in nature. 3(iv) MLC Ext.PW3/A was proved by PW3 Dr. K.D. Bhatt, who stated that; MLC was issued by him; Injured had pain in lower back and was finding it difficult to stand; The injuries suffered by her were simple in nature; He further stated that the appellant was referred by him to the Radiologist in Civil Hospital, Nahan, for opinion on X-rays No.327-328; Radiologist after examining X-rays opined that there was no fracture, therefore, injuries of appellant were simple in nature. 3(v) Learned counsel for the appellant vehemently argued that the appellant has brought on record the disability certificate (Ext.PX), to the effect that she had 10% permanent disability on account of 'old compression spine'. It is further contended by learned counsel for the appellant that learned Tribunal below has erred in ignoring this certificate, while determining compensation amount. 4. (I) In my considered view no infirmity can be found with the observations of the learned Tribunal below in not relying upon disability certificate (Ext.PX) for the reasons:- (a) The disability certificate (Ext.PX) has been issued on 19.03.2011. Whereas the accident in question occurred on 19.02.2009. There is difference of two years between the date of the accident & the date of issuance of Ext.PX. Therefore, without any further evidence, Ext.PX neither can be relied upon nor can it be co-related to the injuries suffered by the appellant on 19.02.2009. Whereas the accident in question occurred on 19.02.2009. There is difference of two years between the date of the accident & the date of issuance of Ext.PX. Therefore, without any further evidence, Ext.PX neither can be relied upon nor can it be co-related to the injuries suffered by the appellant on 19.02.2009. The co-relation had to be proved by leading cogent and reliable evidence by the appellant, more so, in the instant case when MLC Ext.PW3/A, and the opinion of Radiologist of R.H, Nahan was that appellant suffered no fracture and the injuries caused to her in the accident were simple in nature. (b) The judgment cited by learned counsel for the appellant reported in titled Vimla Devi & others Vs. National Insurance Company Limited & others, (2019) 2 SCC 186 pertains to situation where document produced on record to prove the accident in question was not being considered on ground of having been marked & not exhibited. In the instant case, the accident is not in dispute, but the nature of injuries suffered in the accident and co-relation of these injuries with the disability certificate (Ext.PX) is the question to be adjudicated. Appellant has not been able to co-relate the disability certificate (Ext.PX) with the injuries allegedly suffered by her in the accident in question. The only authentic document produced by her in respect of nature of the injuries suffered by her is MLC (Ext.PW3/A), as per which, the injuries were simple in nature with no fracture. (c) i) It is apt to refer to the judgment passed by the High Court of Andhra Pradesh in titled Sannala Bhaskar Reddy vs. M. Sreenivasulu and another, (2010) ACJ 1122 wherein it was held as under:- "6. Keeping the above principles in view, the controversy in this case needs to be considered. Though Exh. A5 disability certificate, was marked and its author was examined as PW 2, the same cannot have any evidentiary value in view of the decision of the Apex Court in Rajesh Kumar v. Yudhvir Singh, (2008) ACJ 2131 (SC), wherein it was held that on the basis of disability certificate issued two years after the accident by a civil surgeon, who did not treat the injured immediately after the accident, disability cannot be determined. Insofar as the agricultural holding of the appellant is concerned, Exh. Insofar as the agricultural holding of the appellant is concerned, Exh. A7 is on the record to show that he was having 10 acres of agricultural dry land. Exh.A2 wound certificate shows that he suffered crush injury on both the thighs and his ankle was fractured. Therefore, though much importance cannot be given to Exh.A5 and evidence of PW2, disability may be taken as 25 per cent and value of supervisory charges can be taken as Rs.1,000 per month. Applying the multiplier of 14.81 as per Bhagwan Das V. Mohd. Arif, (1987) ACJ 1052 (AP), loss of supervisory charges at 25 per cent disability would be Rs.44,430. In addition to this, the appellant would be entitled to Rs.15,000 each towards medical expenses and pain and suffering and a sum of Rs.7,500 for loss of earnings for three to four months, totalling Rs.81,930, which may be rounded of to Rs.82,000. In the absence of any other clinching evidence with regard to supervisory charges, the appellant would not be entitled to any other claim." (c)ii) Hon'ble Apex Court in titled Rajesh Kumar @ Raju Vs. Yudhvir Singh and another, (2008) 7 SCC 305 considered the admissibility of a disability certificate issued 2 years later to the date of accident when author of the certificate was not examined, it was held as under:- "9. The certificate in question in this case was obtained after two years. It is not known as to whether the civil surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60 per cent was calculated on the basis of the provisions of Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's compensation Act which, in our opinion, ex facie has no application, the same in our opinion, cannot be permitted to be raised for the first time." (c)iii) Regarding mode of proof of document, Division Bench of this Court, in titled Oriental Insurance Company Limited Vs. Gian Chand, (2002) ACJ 764 held as under:- "20. Thus it was incumbent upon the appellant to have proved these documents, Exhs. RA to RD in accordance with law. We may point out that admissibility is one thing and mode of proof is another. 21. Appellant has led no evidence to prove these documents by examining officials of the insurance company as well as the transport authority and also the registration and licensing authority concerned. This was the least that was expected by the appellant in order to substantiate its claim that no liability can be fixed on it in view of the above mentioned facts. There is no evidence to that effect. To be fair to Mr. Ashwani Kumar Sharma, we may point out that he referred to a recent decision of this court and urged that since Exh. RA to Exh. RD were not objected to, therefore, those need to be looked into. For the view that we have taken is on the basis of cases in Sait Tarajee Khimchand V. Yelamarti Satyam, AIR 1971 SC 1865 ; Ramji Dayawala & Sons (P) Ltd v. Invest Import, AIR 1981 SC 2085 and Chimajirao Kanhojirao Shirke v. Oriental Fire & Genl. Ins. Co. Ltd., (2001) ACJ 8 (SC), we are not referring to the said decision." In view of ratio laid by Hon'ble Apex Court in titled Govind Yadav Vs. New India Insurance Company Limited, (2011) 10 SCC 683 and titled Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Ltd. and Another, (2011) 10 SCC 756 adequate compensation for permanent or temporary disability can be awarded only where such disability, either permanent or temporary, is directly attributable to the accident in question. New India Insurance Company Limited, (2011) 10 SCC 683 and titled Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Company Ltd. and Another, (2011) 10 SCC 756 adequate compensation for permanent or temporary disability can be awarded only where such disability, either permanent or temporary, is directly attributable to the accident in question. However, this is not so with the case in hand since the nexus between the resultant disability and the alleged accident has not been established at all. 4(ii). Therefore, no reliance can be placed on disability certificate Ext.PX, which has not been proved in accordance with law by examining the author of the document to depose about the disability as well as to co-relate the same with the injuries suffered by the appellant in the accident in question, more so, when nature of injuries suffered by the appellant, in the accident in question as per MLC Ext.PW3/A were simple in nature with no fracture and the alleged disability certificate was issued two years later. 5. In view of the above discussions, no error can be found in the impugned award passed by the learned Tribunal below. Accordingly, the appeal is dismissed. Pending applications, if any, also stand disposed of accordingly.