Sanjay S/O Mahadev Belsare vs Dilip S/O Jangluji Durgey And 2 ...
2017 Latest Caselaw 4129 Bom

                                                                                                             fa-j 278-12.odt
                                                              1


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                                FIRST APPEAL NO. 278 OF 2012

             Sanjay s/o Mahadev Belsare
             Aged about 35 years, Occ.: Driver 
             R/o Police Station Road, Warud 
             Tahsil-Warud, District-Amravati.                                     ....... APPELLANT.
                                                                                          (Ori.Claimant)
                         ...V E R S U S...

 1]          Dilip s/o Jangluji Durgey
             Aged about 40 years, Occ.: Business
             R/o Joint Chowk, Warud, 
             Tahsil- Warud, Dist. Amravati.

 2]          The Divisional Manager
             National Insurance Company
             Having its office at Samra Complex,
             Jaystambh Chowk, Amravati.

 3]       Ganeshkumar s/o Sitaram Agrawal
          Aged Major
          Occ.: Owner of vehicle
          R/o Kadali,Tahsil- Achalpur
          District-Amravati
          (Appeal is dismissed against Respondents
          No.3 as per R(J) order 
          dated 24.3.2015).                           .......RESPONDENTS.
                                                        (Original respondents)
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          Shri. M. A. Sable, Advocate for Appellant.
          Shri. Habibuddin Ahmed, Advocate for Respondent no.1.  
 -------------------------------------------------------------------------------------------

             CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

DATE : 6 th JULY, 2017.

ORAL JUDGMENT

This appeal is directed against the judgment and

fa-j 278-12.odt

order dated 17.7.2010 passed by Member, Motor Accident Claims

Tribunal-3 Nagpur in Claim Petition No. 597/2004.

2] Brief facts of the appeal are as follows:-

Appellant is the original claimant, who has sustained

injuries, while he was driving Matador bearing No.

MH-27/A-3805 on 16.9.2003 at about 11.00 p.m. According to

him, on account of certain mechanical defects, the Matador

dashed to the tree and in the said accident he sustained fracture

and other injuries. It is his case that he has sustained 50%

permanent disability on account of the injuries and as a result he

is unable to do any work. He was working as driver with

respondent no.1 but due to the disability, he cannot continue his

job. For his medical treatment, he has incurred medical expenses

to the tune of Rs.90,000/- and hence, he claimed the total

compensation of Rs.4,00,000/- from the respondents.

3] In support of his case, he examined himself and also

produced the disability certificate. The Tribunal appreciated the

evidence and held that as the doctor who has issued disability

certificate is not examined, Disability certificate cannot be said to

be proved and hence, Tribunal refused to accept the case of

fa-j 278-12.odt

appellant that he has sustained 50% permanent disability.

Moreover, as no documentary evidence was produced on record

about the medical expenses, the Tribunal awarded only

Rs.15,000/- for deformity caused to him; Rs.15,000/- towards

medical expenses, Rs.5,000/- under the head of special diet and

attendance charges and Rs.5,000/- for the pain and suffering;

thus, total amount of Rs.40,000/- with interest thereon at the rate

of 7.5% per annum from the date of application till realization of

the amount.

4] In this appeal, I have heard learned counsel for

appellant. Learned counsel for respondent remained absent.

Hence, the only issue which arise for my consideration is whether

the impugned judgment and order passed by Tribunal is legal and

correct or whether it requires reconsideration after remand.

5] It can be seen from the record of the case that

appellant has produced on record permanent disability certificate

at Exh.50. It was issued by the Handicapped Board. However, as

the appellant has not examined the Medical Officer who has

issued the same, Learned Tribunal has refused to take it into

consideration for determining the disability of the appellant.

fa-j 278-12.odt

6] In my considered opinion, if this is the only cause on

account of which appellant is losing the substantial amount of

compensation and only getting meager amount towards deformity

caused to him, it is necessary to give an opportunity to the

appellant to examine the Medical Officer who has issued the said

certificate. Learned counsel for appellant also submits that if the

matter is remanded to the trial Court, the appellant will examine

the concerned Medical Officer who has issued the disability

certificate Exh.50.

7] In view thereof, the appeal is allowed.

The judgment and order passed by the Tribunal is set

aside.

The matter is remanded back to the Tribunal for

giving an opportunity to the appellant to lead evidence of the

Medical Officer to prove the permanent disability certificate as

well as to lead any further evidence, if found necessary.

The respondents are also at liberty to adduce further

evidence, if they deem fit.

The Tribunal will decide the matter afresh within

three months from the receipt of record and proceedings.

fa-j 278-12.odt

Registrar (Judicial) is directed to remit the record to

the Tribunal within two weeks from today.

Appeal stands disposed in above terms.

JUDGE

RGIngole