MACApp./301/2013
2022 Latest Caselaw 3150 Gua

                                                                          Page No.# 1/9

GAHC010012132013




                            THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  MAC Appeal No. 301/2013


           Sri Hirendra Chandra Dey,
           S/o Late Jogendra Chandra Dey @ Jogendra De,
           Of Tarapur, Shivbari Road,
           P.O.-Silchar -8, P.S.- Silchar,
           District - Cachar (Assam)
                          .....................Appellant.


               -Vs-


          The National Insurance Company Limited,
           Represented by- the Divisional Manager,
          The National Insurance Company Limited Capital Travels Building, PWD Road,
          P.O. & P.S.- Silchar,
          Dist. - Cachar (Assam).
          (Insurer of the offending Santro Car, vide Registration
          No. AS-11-C/0666)


          2. Md Abdul Haque Barbhuiya,
          S/o Late Farjan Ali Barbhuya,
          Vill- Uttarkrishnapur, Part-I,
          P.S.- Silchar, District - Cachar, Assam.
          (Owner of the offending Santro Car, vide Registration
          No. AS-11-C/0666)
                                                                              Page No.# 2/9



             3. Md Sadique Sibly Mazumder,
             S/o Late Nurul Haque Mazumdar,
             Vill - Uttarkrishnapur, P.S.-Silchar,
             District - Cachar, Assam,
             (Driver of the offending Santro Car, , vide Registration
             No. AS-11-C/0666)


                                     ...............Respondents.

Advocates for the appellant        : Ms P Baruah.
Advocate for the respondent        : Ms S Roy


                                             BEFORE
                       HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing               :    16.08.2022.


Date of judgment              :    23.08.2022




                              JUDGEMENT AND ORDER (CAV)

Heard Ms P Baruah, learned counsel appearing for the appellant and Ms S Roy, learned

counsel representing the respondent/Insurance Company.

2. The claimant as appellant filed an appeal under Section 173 of the MV Act, 1988, for

enhancement of the award dated 20.06.2013, passed by the learned Member, MACT, Cachar,

Silchar, in MAC Case No. 790/2008.

3. The brief facts of the case is that on 17.05.2008, one Santro Car, bearing No. AS-

Page No.# 3/9

11C/0666 was proceeding from Park Road side towards Tarapur and at about 11:30 am,

when the said car reached at India Club point, in front of AK Chanda Law College, Silchar,

suddenly the driver stopped the vehicle and without giving any signal opened the front side

door, as a result of which, the claimant, who was also proceeding towards the same direction

by riding a scooter, just followed the said offending vehicle, got hit due to the opening of the

Santro car and due to such impact, the claimant sustained grievous injuries on his person. He

was immediately taken to Silchar Medical College and Hospital, wherefrom he was shifted to

Valley Hospital and Research Centre, Silchar. He had also undergone treatment outside State.

After the accident, one case was registered, vide Silchar PS Case No. 1315/2008, under

Sections 338/427 IPC. At the relevant time of accident, the alleged offending vehicle was duly

insured with National Insurance Company Limited.

4. Learned counsel for the appellant has argued that the learned Tribunal has committed

error by simply granting an award of Rs. 1,39,907/-, by not considering the Award under the

two heads in injury cases, i.e., the pecuniary loss which includes expenses relating to

treatment, hospitalization, medicines, transportation, nourishing food, loss of earning, loss of

future earning and future medical expenses and non-pecuniary losses, which includes

damages for pain and suffering and trauma as consequence of the injuries, loss of amenities

and loss of expectation of life and as such, the award is liable to be recalculated.

5. Per contra, learned counsel for the Insurance Company has submitted that the claimant

has failed to prove the disability certificate that he had sustained such injuries as a result of

which, he became disabled and not in a position to work properly. The learned Tribunal has

rightly passed the order without considering the disability of the claimant, as the doctor who

examined the claimant and assessed his disability, was not examined by the Tribunal, as such, Page No.# 4/9

the disability of the claimant is not proved. It is also submitted that non-examination of the

doctor by the claimant to prove his disability, resulted in denial of the opportunity to the

insurer to cross-examine the doctor to ascertain the extent of permanent disability.

In support of his submission, learned counsel for the Insurance Company has placed

reliance on the following case laws:-

1) 2010 (1) GLT 531 (National Insurance Company Limited -Vs- Lalropara &

Another.

2) 2001 (1) GLT 393 (National Insurance Company Limited -Vs- Chandreswar

Thakur and Others.)

3) (2011) 1 SCC 343 (Rajkumar -Vs- Ajay Kumar & Another)

6. I have considered the submissions of the learned counsel for both the parties and I

have also gone through the record of MAC Case No. 790/2008 and the documents available

thereon.

7. In the instant case, the factum of accident has not been challenged. To prove the

disability of the claimant/appellant, one witness was examined before the Tribunal, i.e., Dr

Angshuman Dutta. He deposed in his evidence that he was working at Silchar Medical College

and Hospital as Registrar, since November 2004. Subsequently, he was promoted to Assistant

Professor, Department of Orthopaedics, in November, 2007. He has proved Exhibit-7, the

injury report of the victim/appellant. He also stated that in Exhibit-7, it has been mentioned

that the nature of injuries were grievous in nature and the patient had sustained injuries due

to RTA. The patient was treated under him and under Dr S Saikia, Resident Surgeon of

Orthopaedic Department, SMCH. This witness also proved the Exhibit-8, the prescription of Page No.# 5/9

the said patient. PW-2 also stated that he attended the said patient, while he was at Valley

Hospital. According to PW-2, the patient had suffered 40% disability vide Exhibit-12.

8. In his cross-examination, PW-2 replied that trauma centre is now under construction at

Silchar. The accidental patient must be treated at trauma centre. He did not know the date of

admission of Hirendra Chandra Dey, but he had been referred to the Casualty Department on

17.05.2008. The patient was not treated as indoor patient in SMCH, Silchar.

9. From Exhibit-8, it reveals that the claimant/appellant sustained the following injuries:

1) Swelling in the occipital region

2) Tender with abraded skin over left leg

3) Abnormal crepitus found

4) 1 x 1 cm over left lower leg

5) Fracture dislocation on left ankle

10. As per the medical report of the claimant/appellant, it reveals that he sustained fracture

injuries on his left ankle joint along with other injuries.

11. Exhibit-9 is the discharge certificate, which shows that the claimant/ appellant was

admitted to Valley Hospital and Research Centre, Silchar, on 18.05.2008 and discharged on

28.05.2008. On examination, doctor found compound fracture, dislocation on left ankle joint,

fracture shaft of fibula (left). Treatment was done by inserting screw fixation for fracture of

fibula (left) and close reduction of ankle dislocation by inserting plates. Apparently, from the

medical documents, it is seen that the claimant/appellant sustained grievous injuries on his

person, i.e., fracture of his left ankle due to the alleged accident.

Page No.# 6/9

12. The learned Tribunal did not consider the disability certificate, vide Exhibit-12, by

stating that the doctor who issued the certificate, did not appear before the Tribunal to prove

the correctness of his findings. PW-2, specifically stated that he was not a member of the

Rehabilitation Centre and admitted that he could not say how Dr. Sipani assessed the ratio of

disablement. Mere marking of exhibit does not prove the correctness of its contents and it is

difficult to rely on the said Exhibit-12, because the doctor who issued the same, did not stand

in the witness box to face the cross-examination.

13. I have perused the Exhibit-12, the disability certificate of the appellant, which was

issued by one doctor of Department of Physical Medicine and Rehabilitation Centre, SMCH, by

putting his initial. According to PW-2, Dr Sipani issued Exhibit-12. PW-2 also proved the

signature of Dr Sipani, vide Exhibit-12 (1). But, Dr Sipani was not examined in this case to

prove Exhibit-12. It is not disclosed in Exhibit-12 or any medical document, how he came to

the conclusion that the claimant/appellant had 40% of permanent disability in relation to his

injury of left ankle dislocation. It also cannot be ascertained from Exhibit-12 whether PW-2,

Dr Angshuman Dutta and Dr Sipani were the members of the Medical Board. It is also not

clear from Exhibit-12 whether the appellant/claimant was examined by the Medical Board to

assess his disability.

14. In the case of Rajkumar -Vs- Ajay Kumar and Another (supra) , it is clearly

mentioned by the Hon'ble Apex Court that-"Tribunal should also act with caution if it

proposed to accept the expert evidence of the 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 give liberal

disability certificates, to help the claimants. But where the disability certificates are given by Page No.# 7/9

duly constituting 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 disability certificate or discharge certificate will not be a 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 the claimant, is tendered for

cross-examination with reference to the certificate."

15. Reverting back to the present case, if we consider the aforesaid judgment of the

Hon'ble Supreme Court, it can be said that the direction of the Hon'ble Supreme Court has

not been followed in this case. The doctor who assessed the disability of the

claimant/appellant was not examined in this case. PW-2 though stated in his evidence that he

treated the claimant/appellant in SMCH as well as Valley Hospital and Research Centre,

Silchar, but he admitted in his evidence that he could not say how Dr Sipani assessed the

ratio of disablement of the victim. Under such backdrop, though PW-2 exhibited the disability

certificate, vide Exhibit-12, but it is not proved in true sense of the assessment of the

disability due to non-examination of the doctor who assessed the disability of the

appellant/claimant. Hence, the learned trial Court has rightly opined that the claimant had

sustained grievous injuries due to the alleged accident, but he had failed to prove the

permanent disability as alleged in his claim petition, as per the disability certificate.

16. Regarding income of the claimant/appellant, as per claim petition, he is a pensioner

getting Rs. 8,000/- per month, as pension and Rs. 5,000/- per month from his business, but

the claim petition is totally silent what type of business he was doing prior to the accident.

The claimant/appellant also did not say anything regarding his business while deposing Page No.# 8/9

before the Court. No document is also available in the record in connection with his business.

Under such backdrop, it can be said that the claimant was not dealing with any business at

the relevant time of accident.

17. From Exhibit-8, it reveals that he was admitted to Valley Hospital, Silchar, on

18.05.2008 and discharged on 28.05.2008. It transpires that the claimant was hospitalized for

10 (ten) days. There is no question to withhold the pension of the appellant during the period

of hospitalization. As such, there was no loss of income of the claimant/appellant during the

said period.

18. As per Judgment dated 20.06.2013, passed by the learned trial Court that on careful

scrutiny of the cash memos, vouchers and prescriptions etc., it is culled out that the

claimant/appellant incurred medical expenditure amounting to Rs. 84,907/-. The said amount

has not been disputed by the Insurance Company. As such, the claimant/appellant is entitled

to get the said amount as his medical expenditure.

19. As the claimant appellant had sustained grievous injuries at the age over 60 years, as

such, he is entitled to Rs. 50,000/- for pain and suffering and another Rs. 50,000/- for loss of

amenities. Though learned counsel for the Insurance Company argued that as the

claimant/appellant had suffered simple injury, he is not entitled to get on the head of future

medical expense.

20. After going through the medical documents submitted by the claimant/appellant, it

reveals that the claimant had sustained grievous injuries on his person, i.e., fracture of his left

ankle. Though it is not specifically stated by any doctor in any medical prescription that future

medical treatment is required, however, as it appears that the claimant/appellant is a senior Page No.# 9/9

citizen and considering his age and the injury sustained by him, I am of the view that he

needs future medical treatment on the injury sustained by him due to the alleged accident.

So, on the head of future medical expense, the appellant is entitled to get Rs. 30,000/-.

Hence, total amount of compensation comes to Rs. 2,14,907/- (Rupees Two Lacs Fourteen

Thousand Nine Hundred and Seven Only)

21. In the result, appeal is partly allowed. The Judgment and Award dated 20.06.2013,

passed by the learned Member, MACT, Cachar, Silchar, in MAC Case No. 790/2008, is modified

to the extent indicated above. The National Insurance Company is directed to deposit the

amount of Rs. 2,14,907/- (Rupees Two Lacs Fourteen Thousand Nine Hundred and Seven

Only), in the savings account of the claimant/appellant, through NEFT. The claimant/appellant

is directed to produce his bank details of any nationalized bank to the Insurance Company for

necessary payment. The amount of Award shall carry an interest @ 6% per annum from the

date of filing of the case till realization. Any amount paid earlier shall be adjusted accordingly.

22. Return the LCR.

JUDGE

Comparing Assistant