Smt.Khatijabi W/O Haji Iqbal vs Shahbaz Khan S/O Wahabkhan & 5 Ors
2017 Latest Caselaw 3371 Bom

255-J-FA-725-08                                                                   1/11


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

                            FIRST APPEAL NO.725 OF 2008


Khatijabi w/o Haji Iqbal 
a/a 59 yrs., Occ. Household work, 
C/o Haji Iqbal Haji Zakaria Kachchi, 
r/o Mohata Mill Road, Marghat, Akola, 
Tq. Dist. Akola                                        ... Appellant. 

-vs- 

1.  Shahbaz Khan s/o Wahab Khan
     Aged about adult, Occ. Business 
     R/o C/o Aman Khan Mannan Khan 
     All India Good Service, Wani Road, 
     In front of Kiran Petrol Pump  
     Yavatmal 445001.                          

2.  Narayankumar s/o Shrikisan Dayal,
     Adult, Occ. Driver, 
     R/o C/o Aman Khan Mannan Khan, 
     All India Good Service, Wani Road, 
     In front of Kiran Petrol Pump  
     Yavatmal 445001.  

3.  The New India Assurance Co. Ltd.
     Calcutta, Thr. Its Branch office, 
     at Akola, Tq. & Dist. Akola 

4.  Sanjay s/o Deolal Zadokar,
     Adult, Occ. Business, 
     r/o Near ITI College, Ratanlal Plots, 
     Akola, Tq. & Dist. Akola  

5.  Prakash Pahelajram Ahuja,
     Adult, Occ. Driver, 
     R/o Near Police Chowki, 
     Sindhi Camp, Akola, 
     Tq. And Dist. Akola 




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6.  National Insurance Co. Ltd.
     Thr. Its Branch Manager, 
     Branch Office, at Akola, 
     Tq. & Dist. Akola                             .... Respondents.  


Shri C. A. Joshi, Advocate for appellant. 
Ms Anita Singh Mategaonkar, Advocate for respondent No.3. 
Shri Sachin Zoting, Advocate for respondent No.6. 


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

DATE : JUNE 20, 2017

Oral Judgment :

This appeal is preferred by the original claimant against judgment

and award dated 10/04/2008, passed by the MACT, Akola in MACP

No.53/2002, being dissatisfied with the meagre amount of compensation

awarded therein.

Brief facts of the appeal can be stated as follows :

The appellant in the case is a house wife. On 06/08/2001 while

she was travelling in the auto rickshaw, auto rickshaw collilded with the

truck bearing No.MH-31/W-5950. In the said accident, she sufferred

injuries to her hand, neck , shoulder and other parts of the body. For a

couple of days therefore she was admitted as indoor patient and was

required to spend amount of Rs.10,000/- towards medical treatment. It

was found that, she sufferred injuries of compound fracture of middle

phalages of 3rd and 4th finger with fracture clavicle right with fracture ulna

255-J-FA-725-08 3/11

lower 1/4th. According to her, due to said injuries she has sufferred 5%

permanent disability and it has effect on the longevity of her life. She has

also sufferred and is still sufferring mental agonies, worries etc. and hence

she claimed the compensation of Rs.1,50,000/- from the respondent Nos.1 to

3 who are owner, driver and insurer respectively of the offending truck.

2. The petition proceeded ex-parte against respondent Nos.1 and 2.

Respondent No.3-insurer, however disputed the claim of the appellant.

Respondent Nos.4 and 5 driver and owner respectively, of the auto rickshaw

did not contest the petition by filing written statement and hence petition

proceeded ex-parte against them. Respondent No.6 initially admitted that

auto rickshaw was insured with it but subsequently receded from the said

statement.

3. On the respective pleadings of the parties, the Tribunal framed

necessary issues for its consideration. In support of her claim the appellant

examined herself and also led evidence of the doctor who had examined and

treated her and also of the doctor who issued her the disability certificate.

4. On appreciation of the evidence on record, the Tribunal was

pleased to hold that the cause of accident was rash and negligent driving of

the offending truck and accordingly held respondent Nos.1 to 3 jointly and

255-J-FA-725-08 4/11

severally liable to pay the compensation of Rs.40,000/- with interest at the

rate of 8% p.a. from the date of application till realization of amount to the

appellant.

5. This finding of the Tribunal is not challenged by respondent Nos.1

to 3 either by preferring counter appeal or by filing any cross-objection.

Hence that finding has become final and does not call for any interference.

6. The only question raised for consideration in this appeal by the

original claimant is about the amount of compensation. According to the

appellant, the compensation awarded by the Tribunal is meagre and it was

granted, without taking into consideration 5% permanent disability

sufferred by the appellant in the said accident. Whereas according to learned

counsel for respondent No.3, the appellant has failed to prove the 5%

permanent disability. It is submitted that appellant has not produced on

record the certificate about permanent disability from the Medical Board or

from the doctor who is member of that Board. Secondly, it is submitted that

whatever disability sufferred by the appellant, is of such a slight nature that

appellant is not liable to get any amount of compensation on that count,

especially considering that at the time of accident she was aged about 60

years and not doing any business or work. It is submitted that Tribunal has

considered all these aspects and has granted compensation of Rs.30,000/-

255-J-FA-725-08 5/11

towards the injuries sufferred by her. Moreover, Tribunal has also awarded

Rs.10,000/- towards medical expenses incurred by her. Thus total amount

of compensation to the tune of Rs.40,000/- came be awarded. The said

amount being just and reasonable, according to learned counsel for

respondent No.3, no interference is warranted therein.

7. In this case, as per evidence on record, it can be seen that in

support of her case, the appellant has examined herself and the two doctors

who treated her for the injuries sufferred by her in the accident and issued

certificate of permanent disability. The material evidence is of PW-2 Dr

Raheman Khan. According to him, the appellant has sufferred injuries of

compound fracture clavicle right with fracture ulna lower 1/4th to the

fingers. He performed surgery on her for the fracture. It is his evidence that

appellant was admitted from 07/08/2001 till 10/08/2001 in the hospital. He

has issued the certificate to that effect which is Exhibit-52 on record. It is his

evidence that the appellant had to spend between Rs.8000/- to 10,000/-

towards her treatment. He has not stated anything about the disability

alleged to be sufferred by the appellant. According to him, the injuries were

not such as to render them completely cured after treatment. In his opinion,

some stiffness in the fingers would persist. However the appellant had not

come to him for follow up treatment, after her discharge and hence he could

not say anything about the treatment which she might have taken after

255-J-FA-725-08 6/11

discharge from his hospital. According to his further evidence he might have

advised the appellant for physiotherepy.

8. Appellant has then examined Dr Hemant Joshi, the Orthopedic

Surgeon who had issued the disability certificate vide Exhibit-51. He has

admitted that he had not treated the appellant at any earlier stage than

before issuing such certificate. However he had examined the case papers

and found on clinical examination that the disability was on account of

restriction to the movements of hand and he has therefore issued disability

certificate to the extent of 5%. In cross-examination he has further admitted

that he was not the panel member of the Board of Doctors who are

Government Authorities, to issue such certificate. He has further admitted

that he maintains outward and inward registers in the hospital; however on

the disability certificate Exhibit-51, the outward number is not mentioned.

He has admitted that there are no identification details mentioned in the said

certificate.

Witness No.2 Dr Rehman Khan has also admitted in his cross-

examination that there is a board established for certifying permanent

disability; such medical board is chaired by the Civil Surgeon and two other

surgeons. Admittedly in this case the appellant has not obtained the

disability certificate from the Medical Board. She admitted she did not go

before the Medical Board for getting the certificate.

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 9.           Thus   in   this   case   whatever   disability   certificate,     which   is

produced by the appellant, has not been issued by the Medical Board or the

doctor from the panel of the Medical Board. The disability alleged to be

sustained by her is only to the extent of 5% and that too on the basis of the

certificate which is not issued by Dr Rehman Khan, who had treated her but

by some other doctor namely Shri Joshi who had not treated her. In such

circumstances, reliance cannot be placed on the disability certificate in any

way for calculating the compensation towards the alleged permanent

disability.

10. Learned counsel for respondent No.2-Insurance Company has

placed reliance on the judgment of Andhra Pradesh High Court in Doobasi

Styavathi vs. Hari Gopal Lunani and anr. III (2007) ACC 500 wherein it

was observed that the disability certificate issued by Orthopedic Surgeon

without taking any x-ray and by the doctor who was not a member of the

panel and not countersigned either by the panel doctor or medical

superintendent, can not be accepted and the Tribunal has rightly refused to

accept such disability certificate.

11. Needless to state that in the case in hand disability is also

negligible as 5% and the certificate is not issued by the doctor who had

treated the appellant or by the doctor who was on the panel of the Medical

255-J-FA-725-08 8/11

Board or by the Medical Board. Hence significance cannot be given to such

disability certificate. Appellant has not explained what was the reasons for

her not to get such disability certificate from Dr Khan, who had treated her

or from the Medical Board or its panel member. Dr Khan has not stated that

on account of injuries sustained in the accident, permanent disability of 5%

was sufferred by the appellant. He has only deposed about appellant having

some stiffness to her fingers due to the injuries cased to her in the accident.

In my considered opinion, therefore, the Tribunal has rightly considered all

these aspects and held the appellant entitled only for compensation on

account of the overall sufferrings and pain sufferred by the appellant and

awarded compensation of Rs.30,000/- towards that head.

12. As regards the authorities on which learned counsel for the

appellant has relied upon, it has be stated that these authorities need to be

distinguished on facts, i.e. in case of Mejabeen Rafiq Chamdiya

Ahmednagar vs. Lata Ashok Hiwale and anr. 2009(5) Mh.L.J.806 the

claimant was house wife, who had sufferred disability to the extent of 30%

and it was brought on record that she was required to engage services of the

domestic help to perform multifarious duties of an house-wife. Hence,

considering her age and the extent of her disability to 30%, it was held that

she should be awarded some amount towards the services rendered by her

and which she was unable to do now. As against it, in the present case,

255-J-FA-725-08 9/11

appellant has failed to prove there was permanent disability and that too to

the extent of 5% and on account of it she had to engage any other person to

assist her.

13. In the next authority relied upon by learned counsel for the

appellant in the case of Laxman Alias Laxman Mourya vs. Divisional

Manager, Oriental Insurance Company Ltd. And anr. (2011) 10 SCC 756,

again the claimant has sufferred 38% permanent disability, on account of

which, his working capacity was rendered to zero and hence amount of

compensation was awarded towards the loss of his earnings and loss of

future expenses etc.

14. In the instant case as stated above, there is no question of

appellant suffering any loss of earning or incurring any expenses for

engaging services of any person to assist her in the household work. The

appellant has failed to prove, even her permanent disability to 5% by

producing certificate from the doctor who has treated her or from the doctor

who is member on the panel of Medical Board. In such situation, the

appellant can be entitled only to the compensation for the pain, suffering

and inconvenience which she may have in discharging her day-today duties.

Therefore compensation of amount of Rs.40,000/- awarded by the Tribunal

can not be called as meagre under the said head.

255-J-FA-725-08 10/11

15. In the next authority of Rajkumar vs. Ajya Kumar and anr.

2010 CJ (SC) 1201, the permanent disability sufferred was to the extent of

45% and it was properly proved. The said disability was of fracture to both

bones of left leg and left radius. In view thereof, the compensation amount

was granted towards the loss of further earnings. In the instant case, at the

cost of repetition, it has to be stated that not only the appellant has failed to

prove her permanent disability to the extent of 5% but whatever disability

she had succeeded in proving also cannot be called as arising out of injuries

sustained in the accident. Dr Khan, who has treated her, has stated in his

cross-examination that the appellant had fracture to the finger of her hand.

According to him the only disability was stiffness in finger. Having regard to

her age at the time of accident which was 50 years, it cannot said that the

said disability if it is to be called so, was only on account of injuries sufferred

by her in the accident. There is no evidence to show that she is unable to live

her normal life or has to take assistance of any other person to discharge her

day-today duties.

16. Hence, taking over all view of the matter, this Court does not

find any reason to interfere in the compensation amount, which is awarded

by the Tribunal to the tune of Rs.40,000/- including the amount of

Rs.10,000/- towards medical expenses, though actually the appellant has

produced medical bills of Rs.5986/- only Thus amount of compensation as

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awarded by the Tribunal to the tune of Rs.40,000/- being just, fair and

reasonable one, no interfere is warranted so as to enhance the same.

The appeal therefore holds no merits and accordingly dismissed

with no order as to costs.

JUDGE

Asmita