Calcutta High Court (Appellete Side)
Biswanath Sharma Alias Bishu vs The Oriental Insurance Company ... on 12 September, 2022
04
12.09.2022
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1335 of 2008
Biswanath Sharma Alias Bishu
Vs.
The Oriental Insurance Company Limited & Anr.
Mr. Jayanta Banerjee
Ms. Roxmini Basu Roy
... For the appellant/claimant
Mr. Sanjoy Paul
... For the respondent/Insurance Company
This appeal is directed against the judgment
passed on 12th November, 2007 by the learned Additional
District Judge, 2nd Court, Nadia (Motor Accident Claims
Tribunal) in MAC Case No.297 of 2001 on account of
injury sustained by one Biswanath Sharma Alias Bishu in
an accident by the involvement of two trucks bearing
registration nos.WB-51/1529 and WB-03/4315. The truck
bearing no.WB-03/4315 duly ensured under Oriental
Insurance Company Limited. The claim petition was filed
with the prayer for compensation from the Oriental
Insurance Company Limited. Both the owners and
insurance companies of the vehicles involved were made
party in the MAC case but the owners did not appear to
contest the case. Oriental Insurance Company contested
the case.
To prove his case, the claimant has examined as
many as six witnesses, including himself and doctor who
issued Disability Certificate in favour of the claimant.
After careful scrutiny of the evidence, particularly,
evidence of the doctor, i.e., PW-6, the learned Tribunal did
not make himself convinced to rely on the said Disability
Certificate (Exts.4 and 5) and to calculate the
compensation amount after applying the percentage of
disability. The learned Tribunal also did not consider the
application of multiplier in terms of income per annum
and ultimately returned his finding by allowing
compensation of Rs.20,000/- only though he considered
the treatment of the claimant in different hospitals for
considerable period.
It is not intelligible to me that what prevented the
learned Tribunal to admit these documents submitted by
the employees of different hospitals before this Court at
the time of giving their respective evidence (PW-2, PW-3
and PW-5). Those documents, being original, were not
admitted in evidence and marked as exhibits.
From the entire evidence, it is not disputed that
the injury suffered in an accident alleged to have been
taken place on 11th June, 2001 by the involvement of the
vehicle with insurance coverage by the Oriental Insurance
Company Limited. It is surprising to note that the claimant
did not produce any single scrap of paper showing his age
at the relevant point of time. Not only that, he did not
adduce any evidence in support of his income.
So far as the Disability Certificate is concerned, the
learned advocate appearing on behalf of the claimant has
strenuously argued that the Disability Certificate issued by
the doctor (PW-6) can be relied upon due to his expertise
knowledge.
Per contra, learned advocate appearing on behalf of
the Insurance Company submitted that the evidence of the
doctor does not show any treatment prior to issuing the
Disability Certificate (Ext.4).
After careful scrutiny of evidence of PW-6 together
with the Disability Certificate (Ext.4), I do not find
anything mentioned in the Certificate itself and in the
evidence of the doctor (PW-6) that he has even examined
the patient along with the relevant documents of treatment
as it is admitted that the claimant/patient visited so many
hospitals, viz. Calcutta Medical College and Hospital,
Burdwan Hospital, Kalna Hospital and Berhampore
Hospital etc. It also takes me aback that what prevented
the claimant to approach any of the Government hospitals
for issuance of Disability Certificate.
In support of his contention, learned advocate
appearing on behalf of the claimant relies on a judgment
reported in (2011) 1 WBLR (SC) 352 (Raj Kumar v. Ajay
Kumar & Anr.) wherein the Hon'ble Apex Court observed
in paragraph 12 as follows:-
"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 giving 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
Hospitals/Medical Colleges) and refer the claimant
to such Medical Board for assessment of the
disability."
In the aforesaid view of the matter as well the
observation of the Hon'ble Apex Court, I am also not
inclined to rely on the Disability Certificate to assess the
compensation.
For the reasons, I am of the considered view that a
lump sum compensation should be allowed keeping an eye
to the bed-head tickets of several Government hospitals
showing long sufferings. Therefore, it cannot be denied
that the claimant had to undertake pain and sufferings for
the treatment.
Considering all facts and circumstances, I find it
necessary to allow a Compensation/Award of
Rs.2,50,000/- to the claimant.
From the records, it appears that he has already
received Rs.20,000/- awarded by the learned Tribunal.
Therefore, the claimant is entitled to further Compensation
/Award of Rs.2,30,000/- along with interest @ 6% per
annum from the date of filing of the claim petition till the
actual payment.
The respondent/Oriental Insurance Company
Limited is directed to deposit the amount before the
learned Registrar General of this Court within six weeks
from the date of this order.
The claimants will be entitled to withdraw the
amount.
The learned Registrar General will release the
amount on proper identification.
With the above observation, the instant appeal,
being FMA 1335 of 2008, stands disposed of.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
necessary formalities.
(Bibhas Ranjan De, J.)
