The court ruled that disability assessment by an expert doctor should be accepted in the absence of contrary evidence. It also clarified that compensation cannot be enhanced without a cross-objection by the claimant.

JUDGMENT :

Bivas Pattanayak, J.

1. This appeal is preferred against the judgment and award dated 20th January, 2017 passed by learned Judge, Bench XI-cum-Judge, Motor Accident Claims Tribunal, City Civil Court, Calcutta in MAC Case No. 75 of 2008 granting compensation of Rs.11,44,937/- together with interest in favour of the claimant under Section 166 of the Motor Vehicles Act. 1988.

2. The brief fact of the case is that on 30.08.2007 at about 20:10 hours while the victim tried to board the bus bearing registration no. WB-23A/7293 at Acharya Jagadish Chandra Bose Road near Maidan Police Station for returning home at that time the said vehicle in order to overtake another bus of route no.230 started moving due to which the victim fell down from the said bus and sustained multiple fracture injuries on both legs. Immediately the victim was taken to SSKM Hospital wherefrom he was shifted to the Belle Vue Clinic where he was admitted till 19th September, 2007. As a result of the injuries sustained in the said accident, the victim became permanent partially disabled to move and work as before. In relation to the injuries sustained in the said accident and the subsequent disablement, the victim filed application for compensation of Rs.7,21,395/-together with interest under Section 166 of the Motor Vehicles Act, 1988.

3. The claimant-victim in order to establish his case examined five witnesses and produced documents which have been marked as Exhibits 1 to 19 respectively.

4. The appellant-insurance company keenly contested the claim application by filing written statement, however, it did not adduce any evidence in support of its case.

5. Respondent no.2-owner of the offending vehicle did not contest the claim application and the same was disposed of ex parte against him. Despite service of notice of appeal, none appeared for respondent no.2.

6. Upon considering the materials on record and the evidence adduced by the claimant, the learned Tribunal granted compensation of Rs.11,44,937/- together with interest in favour of the claimant under Section 166 of the Motor Vehicles Act. 1988.

7. Being aggrieved by and dissatisfied with the impugned judgment and award of the learned Tribunal the insurance company has preferred the present appeal.

8. Mr. Parimal Kumar Pahari, learned advocate for the appellant-insurance company submitted that the doctor who treated the victim was not examined by the claimant in order to establish the extent of injury sustained by him. The claimant has examined P.W.2. Dr. P.K. Mondal who never treated the victim and has only issued a certificate noting the extent of disability in the victim of 35% after a lapse of nine years and as such the evidence of the doctor and the disability certificate is not at all reliable and has been produced only to get compensation in the present case.

He further submitted that the victim after obtaining the fit certificate from the treating doctor joined his service as a computer operator in United Bank of India and with the passage of time he got increments and promotion in his service and superannuated from service as Head Cashier and, therefore, there is no loss of earnings of the victim. In order to get compensation under the head of loss of earnings, the claimant has to establish that for the injuries sustained in the accident there has been loss of earnings to the victim, however, since the victim had no loss of earnings, he is not entitled to receive compensation on such head. The learned Tribunal erred in granting compensation towards loss of earnings taking into account the disability of 35% which is not sustainable and should be set aside. To buttress his contention, he relied on the decision of Hon’ble Supreme Court passed in Raj Kumar versus Ajay Kumar and another, (2011) 1 SCC 343 and another decision of this Court passed in Dipak Kumar Sarkar versus ICICI Lombard General Insurance Co. Ltd and another, FMA 667 of 2016 (Decision of High Court at Calcutta)

In light of his aforesai