United India Insurance Company ... vs Omprakash
2023 Latest Caselaw 3352 MP

                             1             M.A. No.1877/2019


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 23rd OF FEBRUARY, 2023
               MISC. APPEAL No. 1877 of 2019
BETWEEN:-

UNITED INDIA INSURANCE COMPANY LIMITED
THROUGH DEPUTY MANAGER T.P. HUB, DIVISIONAL
OFFICE, WRIGHT TOWN, RAJKIRAN BHAWAN,
JABALPUR (MADHYA PRADESH)



                                               .....APPELLANT
(BY MRS. ASHGHARI KHAN - ADVOCATE )

AND

1.    OMPRAKASH S/O BABOOPAL, AGED ABOUT 28
      YEARS, R/O GRAM PERAI, P.S. GORIHAR,
      DISTRICT CHHATARPUR (MADHYA PRADESH)
      (CLAIMANT)



2.    DEVDEEN      S/O     SHRI    RAMCHARAN
      VISHWAKARMA R/O BUS STAND CURVEY PS
      SERVAI DISTRICT CHHATARPUR (MADHYA
      PRADESH) (DRIVER OF VEHICLE)



3.    KARUNENDRA PRATAP SINGH S/O GAYA
      PRASAD   SINGH R/O   PRATAP   BHAWAN
      CHOUBEY COLONY CHHATARPUR, DISTRICT
      CHHATARPUR (MADHYA PRADESH) (OWNER OF
      VEHICLE)



4.    MALLI S/O SHR BARLAL AHIRWAR, AGED
      ABOUT 47 YEARS, R/O DINDORI BARI P.S
      CHANDLA DISTRICT CHHATARPUR (MADHYA
      PRADESH) (OWNER OF MOTORCYCLE OPP.
                                   2                    M.A. No.1877/2019


     VEHICLE NO.MP-16-MC-9708)



5.   BRANCH MANAGER NEW INDIA ASSURANCE
     COMPANY LIMITED R/O NEAR BUS STAND
     JAWAHAR MARG BUNDELKHAND BUILDING
     DISTRICT CHHATARPUR (MADHYA PRADESH)
     (INSURER OF MOTORCYCLE NO.MP-16-MC-9708)



                                                      .....RESPONDENTS
( SHRI S.D. GUPTA - ADVOCATE FOR RESPONDENT NO.1, SHRI G.C.
SOHANE - ADVOCATE FOR 5 )
      This appeal coming on for hearing this day, the court passed the

following:

                                ORDER

This miscellaneous appeal under Section 173 of Motor Vehicles Act has been filed against the award dated 13.11.2018 passed by Member Motor Accident Claims Tribunal Lavkush Nagar, District Chhatarpur in MACC No.28/2017.

2. The appellant is the insurance company of the bus bearing registration MP-36-P-0102.

3. Challenging the quantum of compensation awarded by the Claims Tribunal, it is submitted by the counsel for the appellant that the Claims Tribunal has taken the permanent disability of the claimant as 25%. The claimant had filed one disability certificate Ex.P/16 but did not examine issuing doctor or the doctor, who had treated the claimant and therefore, the permanent disability assessed by the Tribunal is incorrect. To buttress her contention, the counsel for the appellant has relied upon the judgment passed by the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another reported in (2011)1 SCC 343.

4. Per contra, the appeal is vehemently opposed by the counsel for the respondents.

5. Heard the learned counsel for the parties.

6. The claimant has examined himself and Dinesh (P.W.-2), the driver of the motorcycle. No other witness has been examined. Permanent disability certified was proved by the claimant himself. The Supreme Court in the case of Raj Kumar (supra) has held that 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 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 claimant, is tendered for cross-examination with reference to the certificate.

7. In the present case, the doctor, who had treated the claimant and doctors, who had issued the disability certified have not been examined. Now the next question for consideration is that whether this Court should out-rightly reject the permanent disability claimed by the claimant or can remand the matter with a direction to the Claims Tribunal to constitute a Medical Board for assessment of the disability?

8. The Supreme Court in the case of Raj Kumar (supra) has also held that if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a list

maintained by it in consultation with reputed hospitals/medical colleges) and refer the claimant to such medical board for assessment of the disability. Thus, in absence of the evidence of treating doctor or the doctor, who had issued the disability certificate, it will not be possible for this Court to adjudicate the extent of permanent disability sustained by the claimant.

9. Under these circumstances, this Court is of the considered opinion that the Claims Tribunal should have constituted a Medical Board as directed by the Supreme Court in the case of Raj Kumar (supra). Accordingly, the award dated 13.11.2018 passed by Member Motor Accident Claims Tribunal Lavkush Nagar, District Chhatarpur in MACC No.28/2017 is hereby set aside.

10. The matter is remanded back to the Claims Tribunal with the Following limited directions:

(i) The Claims Tribunal shall constitute a Medical Board as per the directions given in the case of Raj Kumar (supra).

(ii) The Medical Board shall examine the claimant and shall submit the disability assessment report.

(iii) The Claims Tribunal after giving an opportunity to the non-

applicants to cross-examine one of the doctors of the Medical Board shall decide the question of permanent disability sustained by the claimant afresh.

(iv) The Claims Tribunal after reassessing the permanent disability sustained by the claimant shall pass a fresh award.

11. Let the entire exercise be completed latest by 13th April, 2023.

12. It is made clear that no other heads will be disturbed including the income assessed by the Claims Tribunal but the compensation shall be

recalculated on the basis of extent of permanent disability sustained by the claimant.

13. The parties shall appear before the Claims Tribunal on 13.03.2023.

14. The office is directed to immediately send back the record of the Claims Tribunal.

15. The appeal succeeds and is hereby allowed.

(G.S. AHLUWALIA) JUDGE vc

VARSHA CHOURASIYA 2023.02.24 15:57:24 +05'30'