Ramesh Chand Jain vs Raju Vishwakarma
2023 Latest Caselaw 5241 MP

                                                         1
                              IN THE HIGH COURT OF MADHYA PRADESH
                                          AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                             ON THE 29 th OF MARCH, 2023
                                      MISCELLANEOUS APPEAL No. 2076 of 2018

                         BETWEEN:-
                         RAMESH CHAND JAIN S/O PREMCHAND JAIN, AGED
                         ABOUT 55 YEARS, R/O 309, NEAR DEVI SWEETS,
                         NARGHAIYA,  DISTRICT    JABALPUR  (MADHYA
                         PRADESH)

                                                                                     .....APPELLANT
                         (BY SHRI RAKESH KUMAR PATEL - ADVOCATE)

                         AND
                         1.    RAJU     VISHWAKARMA        S/O     DUKKI
                               VISHWAKARMA R/O VILLAGE BIJORI, GANGAI
                               SHAHPURA, TEHSIL PATAN, DISTRICT JABALPUR
                               (MADHYA PRADESH)

                         2.    MOHD. RAEES S/O MOH MUNNA IN FRONT OF
                               M ASJID MADAAR TEKRI, DISTRICT JABALPUR
                               (MADHYA PRADESH)

                         3.    THE ORIENTAL INSURANCE CO LTD IN FRONT OF
                               RAILWAY OF STADIUM DATT RESIDENCY CIVIL
                               LINES, DISTRICT JABALPUR (MADHYA PRADESH)

                                                                                  .....RESPONDENTS
                         (SHRI DEEP CHAND GUPTA - ADVOCATE FOR THE RESPONDENT NO.3)

                               T h is appeal coming on for orders this day, t h e cou rt passed the
                         following:
                                                          ORDER

This miscellaneous appeal under Section 173(1) of the Motor Vehicles Act, 1988 is filed by the claimant being aggrieved of award dated 18.01.2018

passed by the learned 11 th Additional Motor Accident Claims Tribunal,

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 4/1/2023 3:14:52 PM

Jabalpur (M.P.) in Claim case No.636/2014 (Ramesh Chand Jain Vs. Raju Vishwakarma and others).

2. Reading evidence of PW-2 Dr. Sharad Dwivedi, it is submitted that Dr. Dwivedi has admitted that he had seen the x-ray dated 01.10.2015 and had found that left clavicle bone of the claimant was united in an oblique manner causing 10% relative disability of the left hand. He had issued Disability Certificate (Ex.P-348). It is submitted that in view of such 10% disability, Tribunal should have awarded appropriate compensation under the head of Loss of Earning Capacity.

3. Shri Deepchand Gupta, learned counsel for the respondent No.3-

Insurance Company opposes the prayer and submits that there is no x-ray report on record to corroborate the findings of Dr. Sharad Dwivedi. Merely Disability certificate is not sufficient.

4. It is further submitted that Disability Certificate is issued only by Dr. Sharad Dwivedi and it is not a Disability Certificate issued by the District Medical Board. There is neither reference to the x-ray number, etc. nor the report of the radiologist to corroborate the findings of oblique jointing of the fracture. Therefore, plea of enhancement on account of loss of income is not made.

5. After hearing learned counsel for the parties and going through the record, it is evident that x-ray report dated 01.10.2015 for the film of the x-ray, which was taken on 01.10.2015 is not exhibited before the trial Court. In absence of the x-ray or the x-ray report, findings of a single Dr. Sharad Dwivedi, cannot be said to be based on documentary evidence. Moreover, the certificate is not issued by the District Medical Board.

6. Learned counsel for the appellant-claimant admits that claimant is Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 4/1/2023 3:14:52 PM

running a General Merchant Shop. He has failed to point out that how the disability hinges on the functional aspect of running of a General Merchant Shop. Therefore, on the account of loss of income, claimants have failed to prove the aspect of Loss of Earning Capacity in the light of the judgment of the Supreme Court in case of Rajkumar Vs. Ajay Kumar and others (2011) 1 SCC 343 and appeal deserves to fail on this ground is is hereby dismissed. 7 . However, Tribunal has awarded only a sum of Rs.20,000/- under the head of Mental Agony and Pain, which needs to be enhanced to a sum of Rs.25,000/-.

8. Thus, there will be enhancement to the tune of Rs.5,000/- (Rupees Five thousand) for which claimant will be entitled to in addition to the amount awarded by learned Claims Tribunal. This additional amount will also earn interest at the rate of 6% per annum from the date of filing of claim petition till the date of actual payment. Other terms and conditions of the award shall remain intact.

9. In above terms, this miscellaneous appeal is disposed of.

10. Record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE pp

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 4/1/2023 3:14:52 PM