Madhya Pradesh High Court
Girish Kumar vs Govind Singh Maravi & Ors on 9 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 9 th OF FEBRUARY, 2023
MISCELLANEOUS APPEAL No. 2744 of 2004
BETWEEN:-
GOVIND SINGH MARAVI S/O SIMMULAL @ SINDHULAL
MARAVI, AGED ABOUT 36 YEARS, R/O VILLAGE -
GAZIPUR, POLICE STATION MANDLA, TEHSIL AND
DISTRICT MANDLA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SANJAY SAINI - ADVOCATE)
AND
1. GIRISH KUMAR S/O CHANDANLAL CHATURVEDI,
AGED ABOUT 30 YEARS, OWNER AND VEHICLE
DRIVER, TEMPO NO.MP26-E-7676, R/O VILLAGE
SAKWAHA, POLICE STATION MAHARAJPUR,
TEHSIL AND DISTRICT MANDLA (MADHYA
PRADESH)
2. THE NATIONAL INSURANCE COMPANY LTD.
THROUGH DIVISIONAL MANAGER, DIVISIONAL
OFFICE 495, MARHATAL, JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI SUSHIL KUMAR SHARMA - ADVOCATE FOR THE RESPONDENT
NO.1 AND SHRI D.N. SHUKLA - ADVOCATE FOR THE RESPONDENT NO.2)
MISCELLANEOUS APPEAL No. 2660 of 2004
BETWEEN:-
GIRISH KUMAR S/O CHANDANLAL CHATURVEDI,
AGED ABOUT 30 YEARS, OWNER AND VEHICLE DRIVER
OF TEMPO NO.MP26-E-7676, R/O VILLAGE SAKWAHA,
Signature Not Verified P O L I C E STATION MAHARAJPUR, TEHSIL AND
DISTRICT MANDLA (MADHYA PRADESH)
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.10 11:48:10 IST
.....APPELLANT
2
(BY SHRI SUSHIL KUMAR SHARMA - ADVOCATE)
AND
1. GOVIND SINGH MARAVI S/O SIMMULAL @
SINDHULAL MARAVI, AGED ABOUT 36 YEARS,
R/O VILLAGE - GAZIPUR, POLICE STATION
MANDLA, TEHSIL AND DISTRICT MANDLA
(MADHYA PRADESH)
2. THE NATIONAL INSURANCE CO.LTD. THROUGH
DIVISIONAL MANAGER, DIVISIONAL OFFICE 495,
MARHATAL, JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SANJAY SAINI - ADVOCATE FOR THE RESPONDENT NO.1 AND
SHRI D.N. SHUKLA - ADVOCATE FOR THE RESPONDENT NO.2)
These appeals coming on for hearing this day, th e court passed the
following:
ORDER
These miscellaneous appeals under Section 173 of the Motor Vehicles
Act, 1988 are filed by the claimant and owner of the offending vehicle being
aggrieved of award dated 13.07.2004 passed by the learned Third Additional
Motor Accident Claims Tribunal, Mandla (M.P.) in Motor Claim case
No.64/2004.
2. Shri Sanjay Saini, learned counsel for the claimant submits that learned
Tribunal has committed an error in not believing the evidence of the doctor,
who had issued Disability certificate. It is submitted that doctor has certified
16% disability in a fracture of second metacarpal bone of right palm. Therefore,
calculation should have been made as per the Disability certificate issued by
Dr.R.K. Shrivastava (PW-2).
3. It is further submitted that there was no reason to disbelieve the x-ray,
which was taken at the time of preparation of MLC to certify the percentage of
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.10 11:48:10 IST disability and, therefore, that certificate being admissible, placing reliance on the
judgment of the Supreme Court in case of S.Perumal Vs. K. Ambika and
others, (2015) 11 SCC 411 , it is pointed out that in para 12 it is held that
primary evidence of PWs 1 and 2 and Radiology report ought not to have been
discarded in the absence of any cogent evidence led by the respondent stating
that they are false. Thus, a prayer is made to enhance the compensation.
4. Shri Sushil Kumar Sharma, learned counsel for the owner driver, in his
turn, submits that photocopy of driving licence of Shri Girish Kumar
Chaturvedi was produced before the Tribunal but it refused to accept it in
evidence. However, it is submitted that driver Girish Kumar Chaturvedi was
examined before the Tribunal as Non-applicant No.1. He has admitted in para 4
of his cross-examination that he was having a driving licence. Photocopy of the
driving licence is produced for perusal which reveals that it was issued by the
Motor Driving Licencing Authority, Jabalpur as the number mentioned is
679/JBP/98 G 2359. Date of validity is from 15.10.1998 to 30.06.2018.
5. In view of said facts, which have not been rebutted by the Insurance
Company by producing cogent evidence or examining the concerned RTO to
show that the said driving licence was not issued by the said authority or was a
forged document, decision of the learned Tribunal to exonerate the Insurance
Company, cannot be given a seal of approval.
6. Therefore, as far as appeal filed by the owner driver of the offending
vehicle is concerned, that deserves to be allowed and is hereby allowed. Award
of the learned Tribunal is modified and it is directed that owner, driver and
insurer of Trax bearing registration No.MP26-E-7676, in view of the fact that
vehicle was insured with the National Insurance Company Ltd. from 12.01.2000
Signature Not Verified
SAN
to 11.01.2001 and the accident took place on 25.06.2000, Insurance Company
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.10 11:48:10 IST
will be jointly and severely liable to satisfy the award.
7. In above terms, appeal (M.A. No.2660/2004) filed by the owner driver
of the offending vehicle is disposed of.
8. As far as appeal filed by the claimant is concerned, learned Tribunal has
awarded a sum of Rs.16,000/-. It has directed the claimant to refund amount of
Rs.9,000/-, inasmuch as, earlier it had awarded a sum of Rs.25,000/- under
Section 140 of the Motor Vehicles Act. Thus, it is evident that there could not
have been an order of refund of the interim compensation.
9. As far as submission of Shri Sanjay Saini that learned Tribunal has erred
in not accepting the permanent disability is concerned, evidence of Dr.R.K.
Shrivastava, who was examined as PW-2, is necessary to be appreciated and
reproduced. In para 1 of his cross-examination, he has admitted that he had not
found any malunion as per Ex.P/4. He has also admitted that if bones unite
normally then generally the workability of the limb can be restored. He further
said that stiffness which was found by him, was on account of deformity in the
ligament. He further admits that bone of Govind Singh was properly united. He
further admits that on 24.01.2001 i.e. the date when he issued the Disability
certificate (Ex.P-4), he had not obtained any x-ray. He further admits that it is
right to say that to understand the internal position of the bone, it is necessary
to obtain x-ray. He has also admitted that if x-ray would have been carried out
on 24.01.2001 then that would have shown the earlier symptoms of the fracture.
He further admits that if x-ray would have been carried out on 24.01.2001 then
position would have been different than what was seen in the x-ray on
20.06.2000.
Signature Not Verified
SAN
10. This cross-examination is the answer to the vehement arguments put
Digitally signed by PUSHPENDRA PATEL
forth by Shri Sanjay Saini that doctor had issued Disability certificate only on
Date: 2023.02.10 11:48:10 IST
the basis of the x-ray report which was carried out at the time of MLC, which
only depicted the nature of fracture and the bone which was affected and had
not shown the indulgence and professionalism to call for a fresh x-ray report to
understand the nature of disability and the extent of damage, which could not be
repaired with the passage of time.
11. Thus, reliance placed by Shri Sanjay Saini on the judgment of Hon'ble
Supreme Court in S.Perumal (supra) is misplaced. It is not the case here where
the report of the Radiology has been rejected or dismissed without any reason.
Doctor himself, who is the witness of the claimant, has admitted that had he
obtained x-ray after the earlier x-ray dated 26.06.2000 then, he would have
understood the extent of damage. Thus, disability certified without any proper
documentation and without conducting any x-ray, which is the first functional
requirement to ascertain the extent of disability, certificate cannot be said to
inspire confidence. Besides this, 16% disability of one palm, cannot be said to
be the total disability of the body. It was for the claimant to have asked the
doctor to prove the extent of functional disability in relation to the whole body
that would have been a parameter to award compensation in terms of the
percentage of functional disability affecting the ability of the claimant to earn his
livelihood. This is the ratio of law laid down by the Supreme Court in Raj
Kumar v. Ajay Kumar and another, (2011) 1 SCC 343.
12. Thus, as far as the Tribunal's treatment to disbelieve the report of the
doctor to ascertain the permanent disability is concerned, no fault can be
attributed to it. Thus, as far as the appeal filed by the claimant is concerned,
except for the modification that the amount which was granted as an interim
Signature Not Verified
SAN
compensation will not be refundable, no further indulgence is required in the
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.10 11:48:10 IST
matter. Therefore, appeal (M.A. No.2744/2004) filed by the claimant is
disposed in above terms.
13. In above terms, these appeals are disposed of.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.10 11:48:10 IST
