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2007 Supreme(Chh) 486
2007(3) C.G.L.J. 486
IN THE HIGH COURT OF CHATTISGARH AT BILASPUR
Hon'ble Shri Dilip Raosaheb Deshmukh J
The New India Assurance Company Limited ...Petitioners
VERSUS
Salikram ...Respondents
M.A.C No.48 of 2007
Decided on : 17/08/2007
Shri Dashrath Gupta, counsel for the appellant/insurer
Shri R.N.Jha, counsel for respondent No.1/claimant No one appears on behalf of respondents No.2 and 3 though served
The court emphasized the importance of considering the claimant's actual income and ensuring examination of the doctor issuing the disability certificate, as mandated by the Motor Vehicles Act, 1988, to uphold the principles of just and reasonable compensation.
Headnote:
Disability Compensation - Motor Accident - Motor Vehicles Act, 1988 - Section 166 - Section 166, Motor Vehicles Act, 1988
Fact of the Case:
The claimant suffered permanent disability due to a motor vehicle accident and was awarded compensation by the Motor Accidents Claims Tribunal (MACT). The appellant/insurer challenged the assessment of compensation, arguing that the claimant's income and the disability certificate should have been examined.
Finding of the Court:
The court found that the MACT failed to consider the claimant's actual income and did not ensure examination of the doctor issuing the disability certificate, as required by law. The court set aside the award and remitted the matter to the MACT for a fair opportunity for cross-examination.
Issues: Assessment of compensation based on claimant's income and disability certificate, compliance with legal requirements for examination of witnesses.
Ratio Decidendi: The MACT must consider the claimant's actual income and ensure examination of the doctor issuing the disability certificate, as mandated by the Motor Vehicles Act, 1988. Failure to do so violates the principles of just and reasonable compensation.
Final Decision: The appeal was allowed, the award was set aside, and the matter was remitted to the MACT for compliance with legal requirements and a fair opportunity for cross-examination.
1. Heard.
2. This appeal is directed against the award dated 13-10-2006 passed by Shri N.D.Ekka, Additional Motor Accidents Claims Tribunal, Khairagarh (henceforth `the MACT') in Claim Case No.24/2005, whereby the MACT has awarded Rs.2,42,000/- to respondent No.1/claimant for the permanent disability suffered by him due to the accident.
3. Brief facts are that on 09-08-2005, respondent No.1/claimant was going to his Village Pendri on a cycle. Respondent No.3 drove Sumo vehicle No.CG 09/5003 in a rash and negligent manner and dashed against the cycle of respondent No.1/claimant, who sustained fracture in radius and ulna bones of left fore arm and also sustained a serious head injury. The claimant was admitted in Chandulal Chandrakar Memorial Hospital, Bhilai from 10-08-2005 to 27-08- 2005 and incurred heavy expenses in treatment. Operation of the fractured montegra was also performed. The claimant filed the disability certificate and all the relevant documents relating to treatment undertaken and expenses incurred by him. All these documents were exhibited by the MACT during statement of the claimant despite a serious objection raised by the insurance company that unless the doctor granting the disability certificate was examined, the disability certificate could not be exhibited. Taking into consideration the minimum wage prevalent under law, the MACT assessed the daily income of respondent No.1/claimant at Rs.100/- and taking 25 working days in a month, assessed monthly income of respondent No.1/claimant at Rs.2,500/-. Taking permanent disability suffered by respondent No.1/claimant at 35%, the MACT assessed compensation as under :
Sl. Heads Amount No. (Rs.)
(i) Loss of earning = 1,89,000=0 0
(ii) Expenses towards treatment = 30,000=00
(iii) Special diet during treatment = 4,000=00
(iv) Loss of earning = 9,000=00
(v) Pain and suffering = 10,000=00
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TOTAL = 2,42,000=00 ------------------
4. Learned counsel for the appellant/insurer has made a two-fold submission in this appeal. Firstly, that the MACT ought to have taken the monthly income of respondent No.1/claimant at Rs.1,500/- in view of the admission made by the claimant in para 12 of his testimony that he was earning Rs.40-50 per day on the date of accident. Secondly, it was urged that without giving the appellant/insurer an opportunity of cross-examining the expert giving disability certificate as also the treating Psychologist or Surgeon, the assessment of the compensation awarded by the MACT could not be sustained under law.
5. Shri R.N.Jha, learned counsel for respondent No.1/claimant argued in support of the impugned award.
6. Having considered the rival submissions, I have perused the record.
7. It is true that the claimant has in para 12 of his testimony admitted before the MACT that he was earning Rs.30-35 per day as an agricultural labourer and after he started working at the petrol pump, the owner of the petrol pump was paying him Rs.40-50 per day as wages. However, it needs to be noticed that the claimant had suffered a serious head injury due to the accident and had undertaken operation of montegra bone and had deposed that there was a complete loss of memory due to the accident. The claimant had also filed a certificate, Ex.P-72 given by the Psychologist, which revealed traces of memory loss due to the accident. The Psychologist, who gave certificate, Ex.P-72, ought to have been examined by the claimant so as to give an opportunity to the insurer to test the genuineness of the document by cross-examining the witness. The testimony of Aganuram Sahu also shows that there was functional imbalance in the mind of the claimant due to the accident. The MACT, while determining the daily income of the claimant, ought to have considered the testimony of the employer Amit Chopra in para 7 giving a detailed description of the functions, which respondent No.1/claimant used to perform at the petrol pump.
8. The appellant/insurer had r
