Bombay High Court
Rajendra Baburao Dehadrai & Anr vs Ganesh Mhatarba Shewale on 27 April, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 237 OF 2004
1. Shri Rajendra Baburao Dehadrai,
Age 35 years, Occ. Agri.
R/o. At present Dabhadi,
Tq. Badnapur, District Jalna
2. Kacharu Bandu Kharat
(Since deceased, through L.Rs.)
2-A
Smt. Aruna Kacharu Kharat
Age 48 years, occ. Household,
R/o. Palaskheda, Tq. Bhokardan
District Jalna.
2-B Pramod Kacharu Kharat
Age 18 years, Occ. Education,
R/o. Palaskheda, Tq. Bhokardan
District Jalna.
2-C Sadu Kacharu Kharat
Age 12 years, occ. Education,
(Minor through his natural
guardian mother)
Smt. Aruna Kacharu Kharat
Age 48 years, occ. Household,
R/o. Palaskheda, Tq. Bhokardan
District Jalna. ...Appellants
versus
Ganesh Mhatarba Shewale
Age 32 years, Occ. Agriculture
R/o. Chikhali, Tq. Badnapur,
District Jalna ...Respondent
.....
Mr. S.R. Deshpande, advocate for the appellants
Mrs. S.G. Chincholkar h/f Mr. G.N. Chincholkar, advocate for respondent
.....
CORAM : V. K. JADHAV, J.
DATED : 27th APRIL, 2016
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ORAL JUDGMENT:-
1. Being aggrieved by the judgment and award dated 16.12.2003,
passed by the learned member, M.A.C.T. Jalna in M.A.C. No. 163 of
1997, the appellant Nos. 1 and 2, original owner and driver,
respectively, of the vehicle involved in the accident, have preferred
this appeal.
2.
Brief facts, giving rise to the present appeal are as under:-
a) On 23.4.1997, the claimant Ganesh wanted to go to village
Dabhadi. On way, respondent No.2 driver of the tempo gave him a
lift. Accordingly, he started travelling in tempo bearing registration
No. MCA 2698. On way, within the limits of village Chanegaon, all of
a sudden due to rash and negligent driving of respondent No.2, said
vehicle turned turtle and accordingly accident had taken place. In
consequence of which, the claimant as well as other persons,
travelling in the said tempo sustained injuries. The claimant Ganesh
was immediately shifted to Primary Health Center, Rajur and from
there to Civil hospital, Jalna. Even thereafter, he was referred to
Medical College and Hospital, Aurangabad. The claimant on his own
approached Dr. Satish Goel, since he could not get satisfactory and
good treatment in Government hospitals. The injuries sustained by
the claimant Ganesh resulted into permanent disablement.
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b) According to the claimant, his earning capacity is reduced on
account of permanent disablement sustained by him and thus, he
filed M.A.C. No. 163 of 1997 for grant of compensation under various
heads. The claim petition was strongly resisted by the respondents
by filing their common written statement at Exh.23. They had
admitted occurrence of accident, however, they have denied the age,
income and permanent nature of disablement, alleged to have been
sustained by the claimant. Furthermore, they also denied the
expenses alleged to have been incurred by the claimant for his
medical treatment. Learned Member, M.A.C.T. Jalna by its impugned
judgment and award dated 16.12.2003 partly allowed the claim
petition and thereby directed the respondents to pay Rs.75,000/- to
the claimant, inclusive of no fault liability with interest @ 9% p.a. from
the date of application till realization of the same with proportionate
costs.
3. Learned counsel for the appellant submits that immediately
after the accident the claimant was shifted to Primary Health Center,
Rajur and therefrom he was shifted to Civil Hospital, Jalna. As per
the claimant's own contention, from Civil hospital, Jalna he was
refereed to Medical College and Hospital, Aurangabad. The claimant
has not produced any certificate with regard to the permanent
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disablement sustained by him, procured from the said Government
Hospitals but produced on record a certificate issued by a private
practitioner. Learned counsel submits that as per Schedule I, the
medical certificate should be in form Comp. B. The medical certificate
Exh.28 issued by Doctor Goel, private practitioner, is exhibited by the
Tribunal only on the basis that the same has been referred by the
claimant in his oral evidence before the Tribunal. Learned counsel
submits that even at the time of examination in chief of claimant, the
respondent and their counsel were absent. The learned counsel
submits that the author of said certificate was not examined before
the Tribunal and it is therefore, difficult to find out nature of
disablement sustained by the claimant and the effect of said
disablement on his earning capacity. It is the duty of the claimant to
prove the certificate and in absence of that, no compensation could
have been awarded to him. There is only evidence towards medical
expenses incurred by the claimant to the extent of Rs.8000/-. There
is no evidence that any rod is inserted in the hand, as deposed by
the claimant before the Tribunal. Learned counsel submits that in
absence of any reliable and cogent evidence on record, the Tribunal
has awarded lump sum compensation of Rs.75,000/-. Learned
counsel submits that the compensation awarded by the Tribunal is
without any evidence and foundation.
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Learned counsel for the appellant, in order to substantiate his
submissions, places reliance on the judgment in the case of Rajesh
Kumar @ Raju vs. Yudhvir Singh and Anr, reported in 2008 (6)
Mh.L.J. 21 wherein the Supreme court has observed that unless the
author of the certificate is examined, the certificate of disablement
filed on record is not admissible in evidence.
4. Learned counsel for the respondent claimant submits that after
the accident, though the claimant has taken treatment in the
government Hospital at Jalna, as well as the Government Medical
college at Aurangabad, he later on approached Dr. Goel, who is
Orthopedics and private practitioner, as he was not satisfied with the
treatment given in the Government Hospitals. The Tribunal in para 9
of the judgment has observed that concerned Dr. Goel is not
examined and if doctor could have been examined, then he was the
best witness to state all facts that what type of treatment given by
him to the claimant and what type of injuries sustained by the
claimant. Learned counsel submits that the Tribunal has thus,
concluded that the claimant is therefore, not entitled for amount of
compensation as claimed. Learned counsel submits that the
Tribunal can hold enquiry into the claim and determine the just and
reasonable compensation. Learned counsel submits that if the
Tribunal has formed opinion that in absence of examination of Dr.
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Goel as witness before him, it is not possible for the Tribunal to
consider the claim for compensation of the claimant in its proper
perspectives, then the Tribunal should have recorded the evidence of
doctor, who treated the claimant. Learned counsel submits that so far
as the medical certificate issued by Dr. Goel is concerned, the same
is marked at Exh.28.
Learned counsel submits that the appellant/original owner and
driver never raised any objection for exhibiting the said medical
certificate before the tribunal and for the first time raised such
objection before this Court, which is not permissible in law. In any
case, the tribunal has failed in its duty to award just and reasonable
compensation. In the facts and circumstances of the present case, in
the interest of justice, it would be appropriate if the matter is
remanded to the Tribunal for the enquiry to the extent of medical
certificate, issued by Dr. Goel and further to produce on record Form
Comp. B before the Tribunal.
Learned counsel for the respondent claimant in order to
substantiate her contentions, places reliance on the judgment in the
cases of Raj Kumar vs. Ajay Kumar and Anr. reported in 2011 (1)
All MR 402 (S.C.) and ICICI General Insurance Co. Ltd. vs.
Ransingh Dadla Pawra and others, reported in 2008 (6) Mh.L.J.
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278.
5. The claimant Ganesh has deposed before the Tribunal that
after the accident, he went to Primary Health Center, Rajur and
thereafter to Civil Hospital, Jalna. He deposed that he had fracture
injury to his right hand. He thereafter referred to Medical College
hospital, Aurangabad and thereafter he has taken treatment from
private hospital of Doctor Goel at Jalna. He had further deposed that
Dr. Goel operated his injuries and he was in the hospital of Dr. Goel
as indoor patient for one and ½ months. Even he was required to
take follow up treatment for further two months of Dr. Goel after
discharge. He has further deposed that because of disability, he is
not able to work. In order to substantiate his case, he has produced
on record the certificate issued by doctor Goel and the same is
marked at Exh. 28 during the course of his examination before the
court. It appears from his examination in chief that the said
certificate, issued by Dr. Goel came to be exhibited in his evidence
itself. Admittedly, the claimant has not examined Dr. Goel before the
Tribunal. Respondent No.2 and their counsel were absent at the
time of examination of claimant. However, subsequently, with the
leave of the court, subjected the claimant to cross examination . At
that time, no objection was raised to the certificate of Dr. Goel
exhibited by the Tribunal.
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6. Let it be as it is, however, in para 9 of the judgment, the
Tribunal has expressed its inability to grant compensation as claimed
by the claimant for the reason that Dr. Goel would have been the
best witness to state on facts about nature of disablement sustained
by the claimant etc.
7. In the case of Rajkumar vs. Ajay Kumar and Anr. (supra)
relied upon by the learned counsel for the respondent-claimant, in
para 11 and 12, the Supreme court has made following
observations:-
"11. 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'. 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 (for example the Manual for Evaluation of
Permanent Physical Impairment for Orthopedic Surgeons, prepared
by American Academy of Orthopedic Surgeons or its Indian
equivalent or other authorized texts) for understanding the medical
evidence and assessing the physical and functional disability. The
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Tribunal may also keep in view the first schedule to the Workmen's
Compensation Act, 1923 which gives some indication about the
extent of permanent disability in different types of injuries, in the
case of workmen. If a Doctor giving evidence uses technical medical
terms, the Tribunal should instruct him to state in addition, in simple
non-medical terms, the nature and the effect of the injury. If a doctor
gives evidence about the percentage of permanent disability, the
Tribunal has to seek clarification as to whether such percentage of
disability is the functional disability with reference to the whole body
or whether it is only with reference to a limb. If the percentage of
permanent disability is stated with reference to a limb, the Tribunal
will have to seek the doctor's opinion as to whether it is possible to
deduce the corresponding functional permanent disability with
reference to the whole body and if so the percentage.
12. 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 giving 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
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
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Hospitals/Medical Colleges) and refer the claimant to such Medical
Board for assessment of the disability."
8. It is observed by the Supreme Court 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'. It is further
observed that the Tribunal therefore, take active role to ascertain the
true and correct position so that it can assess the 'just compensation'.
The Supreme Court has further observed that the Tribunal may
invariably make it a point to require the evidence of the Doctor who
treated the injury.
9. In view of the above observations and in view of the facts and
circumstances of the present case, in my considered opinion, this is
fit case to be remanded to the Tribunal to the extent of examination
of Doctor Goel. Needless to say that the appellants, original owner
and driver, are at liberty to cross examine Dr. Goel. It appears from
the evidence that the certificate in Form Comp. B is not issued by
Dr. Goel, who is private practitioner. In the light of that, the
respondent claimant is at liberty to procure certificate, if any, in Form
Comp. B from Dr. Goel and produce it before the Tribunal and the
Tribunal may accept its production subject to oral evidence of Dr.
Goel on this point. At this stage, learned counsel for the appellant
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vehemently submits that this is not the appeal preferred by the
respondent claimant and no such order of remand can be passed in
absence of any appeal filed by the original claimant or any cross
objection in the present appeal. The order of remand can be passed
if any material evidence is either ignored, misread or misconstrued or
any other illegalities is committed.
11. In the light of above
ig discussion and more particularly the
observations of the Apex Court in the case of Raj Kumar (supra),
this is a fit case to remand the matter to the Tribunal to the extent, as
discussed above. Hence, I proceed to pass the following order:-
ORDER
I. The appeal is hereby partly allowed.
II. The judgment and award dated 16.12.2003 passed by
the learned Member, M.A.C.T. Jalna in M.A.C. No. 163 of
1997 is hereby quashed and set aside. The matter is
remanded to the Tribunal with the following directions:-
"i. Re-admit the M.A.C. No. 163 of 1997 (Ganesh vs.
Rajendra and another) to its original number and
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proceed to decide the same.
ii. The evidence (if any) recorded during the course
of original trial, shall be subject to all just exceptions, be
evidence during the trial of claim petition after remand."
III. The claimant is permitted to examine Dr. Goel as his
witness and the respondents owner and driver are at
liberty to cross examine the said witness.
IV. The claimant is permitted to procure the certificate in
Form Comp. B from Doctor Goel and is at liberty to
produce it before the Tribunal, who shall allow production
of such document. Needless to say that the said
certificate in Form Comp. B, if issued, by Dr. Goel, proof
of said certificate will be subject to examination of Dr.
Goel in this regard.
V. The matter is remanded to the extent of examination of
Dr. Goel only and production of said certificate, as
directed.
VI. The Tribunal shall decide the M.A.C. No. 163 of 1997
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afresh, after giving opportunity of hearing to both sides,
on its own merits, in accordance with law.
VII. The appeal is disposed of accordingly.
VIII. Needless to add that the observations made by this
Court while disposing of the present appeal shall not
cause any prejudice to trial of M.A.C. No. 163 of 1997
after the remand.
( V. K. JADHAV, J.)
rlj/
