Divisional Manager vs Devendra Nath Lal Das & Another
2021 Latest Caselaw 2676 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 96 of 2018
                          ........

Divisional Manager, New India Assurance Co. Ltd.

.... ..... Appellant Versus Devendra Nath Lal Das & Another .... ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellant : Mr. Alok Lal, Advocate.

For the Respondent No. 1 : Mr. K.S. Nanda, Advocate. For the Respondent No. 2 : Mrs. Nirupama, A.C. to Mr. Anil Kumar Sinha, Advocate.

........

10/03.08.2021.

Heard, learned counsel for the parties.

Appellant-New India Assurance Company Limited has preferred this appeal against the award dated 22.05.2017 passed by learned Presiding Officer, Motor Vehicles Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No. 18 of 2008, whereby the claimant / injured Devendra Nath Lal Das has been awarded compensation to the tune of Rs. 15,28,033/- (after deducting Rs. 25,000/- which has been paid to the claimant under Section 140 of Motor Vehicles Act) to be paid within 30 days from the date of award along with interest @ 9% per annum from the date of admission of claim application i.e. 28.07.2009 till realization. However, the Opposite Party No. 2, i.e. New India Assurance Company Limited has been granted right to recover the compensation amount, paid to the claimant applicant after satisfying the award, from the O.P. No. 1, owner of the offending vehicle, Trekker bearing registration no. BR- 14P-1770 namely, Naresh Kumar Mahto, son of not known to the appellant, resident of Village-Kadma, P.O. & P.S. - Kanke, District- Ranchi.

Learned counsel for the appellant, Mr. Alok Lal has assailed the impugned award on the grounds that the injured Devendra Nath Lal Das, who was going from Ramgarh to Ranchi in Trekker bearing registration no. BR-14P-1770 being driven rashly and negligently and as soon as the Trekker reached near Appollo Hospital, Irba, Ranchi, at about 10:00 P.M., another vehicle Mini Truck 407 coming

from opposite direction collided against the Trekker and the claimant/injured suffered serious injury on his head, nose, eyes, throat, teeth and face. Thereafter, the injured was brought to Appollo Hospital, Ranchi, from where he was shifted to 'Surgical Intensive Unit' of RIMS, Ranchi. Thereafter, he was got treated at L.V. Prasad Eye Institute, Hyderabad, Appollo Hospital, Ranchi, Appollo Trauma Center, Hyderabad, Sarojani Devi Eye Hospital, Secunderabad, Kashyap Eye Hospital, Ranchi, Advance Diagnostic Center, Ranchi and at the clinic of Dr. V.K. Verma, Ranchi. Inspite of that he could not get recovered and suffered 100% permanent disability in his both eyes.

Learned counsel for the appellant, Mr. Alok Lal has submitted that it is a case of hit and run.

Learned counsel for the appellant has further submitted that claim application was itself not maintainable in view of fact that offending vehicle Mini Truck 407 which dashed the Trekker bearing registration no. BR-14P-1770 has not been impleaded as party in the claim case.

Learned counsel for the appellant has submitted that so far 100% disability is concerned, the learned Tribunal has considered without examining the treating Doctor and to that effect, learned counsel for the appellant has relied upon the judgment passed by the Apex Court passed in the case of Rajesh Kumar v. Yudhvir Singh, reported in (2008) 7 SCC 305 Page 308 at para 11 which is quoted herein; -

"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also

the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."

Learned counsel for the appellant has further relied upon the judgment of the Hon'ble Apex Court passed in the case of Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 at para-16, which is quoted herein -

16. 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, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The 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.

Learned counsel for the appellant has further relied upon the judgment of the division bench of this Hon'ble Court passed in the case of Oriental Insurance Co. Ltd. Vs Johan Shah reported in (2001) 2 JLJR 163(DB) at Para 3,4 and 7, which is quoted hereunder:

3. The limited issue raised for our adjudication by the appellant- Insurer is with respect to the determination of the quantum of compensation based on the assessment as per the learned Tribunal with regard to the alleged injury allegedly sustained by the respondent No. 1and the alleged disablement suffered by him on account of, and as a result of the accident in question. What do we find from perusal of the

judgment under appeal is that the claimant, apart from his own testimony, did not produce any evidence whatsoever to prove any fact either about any injury being suffered by him, or any disablement having been caused to him or any expenses incurred by him for the alleged treatment or for any injury. Admittedly, no doctor was produced. No other, evidence, medical or otherwise, was adduced by the claimant in the Tribunal in support of his claim for compensation. It is an established principle of law that if a claimant claims compensation for a wrong committed to him by a wrong doer, he has to establish his claim with regard to such facts and figures which justify the determination of the compensation amount on the basis of the evidence adduced by the claimant in the Court, specially so, in a Claim petition filed under Sections 144 and 166 of the Motor Vehicles Act with regard to an alleged injury received by the claimant and the alleged disablement, partial or complete, suffered by him. He is under an obligation to prove the same by production of cogent evidence.

4. In a case relating to the claim on account of an alleged injury allegedly sustained by a claimant, best evidence is of the medical witness. The Doctor who attended upon the claimant, treated him and prescribed medicines etc. for him, is the best person. He is the person who is in a position to testify as to whether the claimant received any injury, if so, its extent, and as to whether any disablement, permanent or temporary or partial, was suffered by the claimant. Coupled with this would be the evidence required to prove the expenditure which the claimant had to incur for treatment of the injury and for the sufferings etc. undergone by him. Such evidence can be in the form of witnesses who would come and testify about the expenses incurred by the claimant. These witnesses, medical as well as other witnesses, would always be subject to cross-examination by the opposite party.

7. In the normal circumstances, we should have allowed the appeal and set aside the judgment of the Tribunal. However, at this stage, Mr. A.K. Lal, learned Advocate appearing for the claimant-respondent No. 1 has submitted that his client be given a chance to adduce evidence in the Tribunal and to prove the facts relating to injury and the expenditure etc. We, in the interests of justice, allow the prayer of Mr. A.K. Lal and acceding to his request, remit the case to the Tribunal for taking additional evidence by enabling the claimant to prove the aforesaid relevant facts in the light of the observations made hereinabove.

Learned counsel for the appellant has thus submitted that in absence of examination of treating Doctor, the learned Tribunal has

wrongly considered 100% disability and as such, the impugned order may be set aside.

Learned counsel, Mr K.S. Nanda, appearing on behalf of the respondent no. 1 i.e. claimant / injured and has relied upon the judgment of Raj Kumar (Supra) and has submitted that since the documents regarding permanent disablement certificate, discharge summary and medical treatment, medical bill for payment to the Hospitals, Medical prescriptions, Medical report and investigation report of the injured claimant have been brought on record as Ext. 4, Ext. 7 to 7/6, Ext. 8 to 8/25 and Ext. 9 to 9/19, this Court may not interfere with the impugned award.

Learned counsel for the respondent no. 1, Mr. K.S. Nanda has further submitted that so far the non-examination of treating Doctor is concerned, this submission of learned counsel for the appellant - Insurance Company is not making much difference to the Court, as a person, who has sustained 100% injury in both of his eyes will rush for his eyes treatment to the bigger place.

Exhibit-9 to 9/19 i.e. Medical Prescriptions, Medical report and investigation report for treatment of applicant / injured issued from L.V. Prasad Eye Institute, Hyderabad, Appollo Hospitals Group Ranchi and Dr. Sudhir Kumar, Ranchi;

Exhibit-4 i.e. Certificate regarding Permanent Disablement of the injured applicant namely, Devendra Nath Lal Das issued from Office of Civil Surgeon-cum-C.M.O., Ranchi vide Memo No. 760, dated 10.09.2003 after examination of the applicant by Medical Board.

These documents are ample to prove that the injury and Disablement Certificate issued by competent authority showing permanent disability of the injured, cannot be doubted for non- examination of treating Doctor. Since the learned Tribunal has no doubt about the treatment of injured in recognized Medical Institute like L.V. Prasad Eye Institute, Hyderabad, RIMS, Ranchi and Appollo, Ranchi etc., this Court may consider that the Apex Court has also dealt the issue in the case of Raj Kumar (Supra).

Learned counsel for the respondent no. 1 has thus submitted that in view of fact that these documents, which have been brought on record as Ext. 4, Ext. 7 to 7/6, Ext. 8 to 8/25 and Ext. 9 to 9/19, have not been doubted by the Insurance Company, as the same have been exhibited without objection.

Learned counsel for the respondent no. 1 has further submitted that so far quantum of compensation is concerned, the same has not been assailed by the Insurance Company and no appeal has been preferred on behalf of the claimant for enhancement of the same, as such, this Court may not interfere with the same.

Learned counsel for the respondent no. 2, Mrs. Nirupama appearing on behalf of the Owner of one of the vehicle BR-14P- 1770 has submitted that it is not a case of hit and run with regard to injured Devendra Nath Lal Das, who sustained injury being a third party in the accident as he can claim compensation from the insurer of offending vehicle Trekker bearing registration no. BR-14P-1770 as a third party.

Learned counsel for the respondent no. 2, Mrs. Nirupama has submitted that the claim application is also maintainable in view of the judgment passed by the Apex Court in the case of Khenyei v. New India Assurance Co. Ltd., reported in (2015) 9 SCC 273, where the Apex Court has laid down that the claimant is at liberty to claim compensation either of the joint tortfeasors without impleading other as party. The relevant paragraphs of aforesaid judgment are quoted hereunder -

22.1. In the case of composite negligence, the plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. 22.2. In the case of composite negligence, apportionment of compensation between two tortfeasors vis-à-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.4. It would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the

other joint tortfeasor in independent proceedings after passing of the decree or award.

After hearing the learned counsel for the parties and on the basis of materials available on record, it appears that so far the issue with regard to maintainability is concerned, the claim application is maintainable in view of the judgment passed by the Apex Court in the case of Khenyei (Supra).

So far the issue of hit and run is concerned, the victim was a third party with regard to the accident and he can sue against both the vehicles or against any of the vehicle and as such, he has rightly sue the owner of trekker bearing registration no. BR-14P-1770.

So far, the cases relied by the Insurance company, in Rajesh Kumar (supra) is concerned, deals with the different issue where the certificate of disability has been issued after two years of the accident and examination of the author of such certificate is required for the genuineness of the same and the same has not been contented before either of the courts, which differ from the facts and circumstances of the present case.

Further, in the case of Johan Shah (supra), where the claimant failed to prove injury in question and no piece of evidence was adduced with regard to the injury or disablement, as such, the case relied by the Insurance Company is not supporting the contention raised by the Insurance Company and also differs from the facts and circumstances of the present case.

Further, the Insurance company specifically relied upon the para-16 of Raj Kumar (Supra), which is also not supporting the case of Insurance company in any manner as it provides for the assessment of physical and functional disability, which has never been raised before the tribunal, as such, this plea does not supports the submission of the Counsel for the Insurance company So far the issue with regard to medical injury is concerned, the same is hereby negated in view of the judgment passed by the Apex Court in the case of Raj Kumar (Supra) (para- 18 and 23). Paragraph no. 18 and 23 of aforesaid judgment is re-produced hereunder:-

18. 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 give 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 the 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.

23. The Tribunals should realise that a busy Surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy Surgeons refuse to treat medico-legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in coercing the Doctors to attend the Tribunal to give evidence. The solution lies in recognizing the valuable time of Doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating Doctors on commission, after ascertaining their convenient timings. Secondly, if the Doctors attend the Tribunal for giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the Doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 A.M. or 11.00 A.M. and wait in the Court Hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby

dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a long way in demonstrating that Courts/Tribunals show concern for litigants and witnesses.

Accordingly, in the view of the Raj Kumar (supra), the Disability Certificate i.e. Ext.-4 which has been issued from the office of the Civil Surgeon-cum- C.M.O vide Memo No.-760, dated 10.09.2003 after the examination of the injured by the Medical Board, requires no further examination of the doctors issuing such Certificate with regard to the injury, as the same was issued by the Government Medical Board of doctors.

Further, the Insurance company never contested the injury as mentioned in the Disability Certificate i.e. Exhibit-4 before the learned Tribunal and the same was exhibited and marked without any objection, meaning thereby the Insurance company has consented the same, as such, in view of the Raj Kumar (supra), the issue raised by the Insurance Company is answered accordingly.

Accordingly, the appeal, being devoid of merit, is hereby dismissed as the quantum has not been assailed by the appellant - Insurance Company nor the claimant-respondent has preferred any appeal for enhancement of the same, as such, this Court restrain itself from interfering with the quantum of compensation.

So far right / liberty granted to the Insurance Company to recover the awarded amount after satisfying the award to the claimant from the owner of the offending vehicle bearing registration no. BR-14P-1770 that remains intact without any interference by this Court.

The statutory amount deposited by the appellant at the time of preferring the appeal shall be remitted to the learned Tribunal within a period of four weeks from today by the learned Registrar General of this Court and learned Tribunal shall issue notice and after due verification shall pay the same to the claimant. The balance amount of compensation, if remains as on today shall also be satisfied to the

claimant by the Insurance Company within a reasonable period as the injured is suffering since 02.02.2001.

I.A. No. 1910/2018 stands closed.

(Kailash Prasad Deo, J.) Sunil/-