Balikaran Sahu vs Uma Kant Pathak
2023 Latest Caselaw 2228 MP

                                1
 IN    THE      HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR
                         BEFORE
      HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                   ON THE 8 th OF FEBRUARY, 2023
             MISCELLANEOUS APPEAL No. 3219 of 2009

BETWEEN:-
BALIKARAN SAHU S/O SHRI DURJAN SAHU, AGED
ABOUT       38    YEARS, OCCUPATION: BUSINESS,
OCCUPATION - DAILYWAGERS EMPLOYEE, R/O
VILLAGE RAIKHOR, P.S. & P.O. RAMPUR NAIKIN,
DISTRICT - SIDHI (MADHYA PRADESH)

                                                           .....APPELLANT
(BY SHRI S.P. MISHRA - ADVOCATE)

AND
1.    UMA KANT PATHAK S/O SHRI B.P. PATHAK, AGED
      ABOUT 38 YEARS, TRUCK OWNER, R/O
      BARDADEEH ROAD, INFRONT OF GAS GODAM,
      DISTRICT-  SATNA    (MADHYA       PRADESH),
      REGISTERED OFFICE BUS NO. MP-19/P-0140.

2.    GRISH    CHANDRA    DWIVEDI    S/O   SHRI
      CHANDRIKA PRASAD DWIVEDI, AGED ABOUT 46
      YEARS, OCCUPATION- DRIVER, BUS NO. MP-19/P-
      0140. R/O VILLAGE SABHAPUR, P.S. SABHPUR,
      DISTRICT SATNA (MADHYA PRADESH)

3.    MANAGER,        THE     NATIONAL INSURANCE
      COMPANY LTD., THROUGH INSURED OFFICE-
      SATNA (MADHYA PRADESH), POLICY NO.
      321200/31/06/6300000264

                                                         .....RESPONDENTS
(NONE )

      Th is appeal coming on for hearing this day, t h e court passed the
following:
                                 ORDER

This Miscellaneous Appeal under Section 173 of the Motor Vehicles Act

has been filed against the award dated 15/05/2009 passed by First Additional Motor Accident Claims Tribunal Sidhi in Claim Case No.76/2009, by which the Claims Tribunal has held that the appellant has failed to prove that he had suffered amputation on account of injuries sustained by him in the accident.

2. Since the factum of accident is not in dispute, therefore it is suffice to mention here that on 10/08/2006 at about 07:30 PM, the appellant was traveling in bus No. M.P. 19 P / 0140. The bus turned upside down, as a result, certain persons sustained injuries including the appellant.

3. It is submitted by the counsel for the appellant that in fact the appellant has suffered amputation on account of injuries sustained by him in the accident,

therefore the Claims Tribunal has wrongly disbelieved the medical documents of the appellant.

4. Heard the learned counsel for the appellant.

5. The appellant has relied upon a personal disability certificate which was issued to him on 04/12/2006, Ex.-P/9, according to which the appellant is suffering from amputation of right upper hand and has permanent disability of 80%. There is another prescription, Ex.-P/10, which is in three different inks. In one ink, the date 28/08/2006 and name of the appellant is mentioned. In different

ink, the history is mentioned as Trauma on 10th of August and the medicines are mentioned in black ink. In this document, it is no-where mentioned that the right hand of the appellant has been amputated. Another document is Ex.-P/11, which is a certificate issued to the appellant as an outdoor patient, according to which he was advised bed rest from 23/09/2006 to 26/10/2006. Another document, Ex.-P/12, is a receipt of amount of Rs.8,100/-. Exhibits.-P/13 to P/18 are the receipts of medicines. Ex.-P/19 is a receipt given by the x-ray and sonography centre. Ex.-P/20 is a printed list of medicines which neither

contains the name of the appellant nor the signature of the Doctor who had advised the said list of medicines. Even the discharge ticket has not been filed. No certificate has been filed that the right hand of the appellant was amputated on account of any injury sustained by the appellant.

6. The appellant himself has filed his MLC dated 10/08/2006, Ex.P/3 which was done immediately after the accident. According to which, the appellant had complained pain around his back and other several parts of the body but no apparent injury and signs were found and accordingly, the Doctor had specifically opined that no injury was found on medical examination.

7. Thus, it is clear that in the medical examination, which was conducted immediately after the accident, no injury was found on the body of the appellant. In view of the aforesaid MLC, Ex.-P/3, the non-filing of the documents, to show that the right hand of the appellant was amputated on account of injuries sustained by him, assumes importance.

8. Further, it is clear from the order-sheets of the Tribunal that no application was filed by the appellant to examine the treating Doctor. It appears that the appellant had moved an application for examining Dr. Dheerendra Singh, who had issued the MLC, Ex.-P/3. The said prayer was rejected because the MLC was already exhibited. No application was filed to examine the Doctor who had amputated the right hand of the appellant.

9. Under these circumstances, this Court is of the considered opinion that the Claims Tribunal did not commit any mistake by holding that the appellant has failed to prove that the amputation of his right hand has taken place on account of injuries.

10. The counsel for the appellant has relied upon the judgment passed by the

Supreme Court in the case of Anita Sharma and Others Vs. New India Assurance Company Limited and Another reported in (2021) 1 SCC 171 and relied upon paragraph Nos.12, 16 and 17.

11. In the said case, the Supreme Court has held that a person, who was accompanying the injured to the hospital for immediate medical aid, could not have simultaneously gone to the Police Station to lodge the FIR and accordingly, the High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to the Police. Further, it was also found that the Police itself had reached the hospital upon receiving the information about the accident and thus, there was no occasion for the witness to lodge a report once again to the Police at a later stage either. However, in the present case, the dispute is whether the appellant had suffered any injury resulting in amputation or not?

12. The counsel for the appellant has also relied upon the judgment passed by the Co-ordinate Bench of this Court in the case of United India Insurance Co. Ltd. Vs. Sanjeev Shukla and Others reported in 2019 SCC OnLine MP 1566.

13. The facts of the said case are also distinguishable. In the aforesaid case, the Court was considering as to whether the offending vehicle was planted or not, which is not the case in the present case.

14. The counsel for the appellant has also relied upon the judgment passed by the Co-ordinate Bench of this Court in the case of Sudha Jain Vs. Mahendra Kumar Jain reported in 2006 ACJ 1401.

15. The facts of the said case are distinguishable. In the case of Sudha Jain (supra), the treating Doctor was examined and thereafter it was held that the injured has suffered the permanent disability.

16. In the present case, this Court has already held that even in the MLC, Ex.P/3, no injury on the right hand of the appellant was found. No treating Doctor has been examined. No document has been filed that his right hand was amputated. No x-ray report has been filed to show that he has suffered any fracture although the appellant has claimed that he was given plaster on his right leg, waist and hand.

17. Under these circumstances, in absence of any material to show that the appellant had suffered injury in the accident which resulted in amputation of his right hand, no case is made out for interference in the matter.

18. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE shubhankar

Digitally signed by SHUBHANKAR MISHRA Date: 2023.02.09 13:41:58 +05'30'