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2009 Supreme(Gau) 754
IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
Arun Chandra Upadhyay, J.
Oriental Insurance Co. Ltd. - Appellants
Vs.
Lalliansawmi and Anr. - Respondent
Decided On : 30.10.2009
Headnote:
M.V. Act, 1988 - Section 173 and 170 – Vehicle accident - 55% permanent disability - Claim for compensation - Claimant was proceeding in a jeep bearing Regn. No. MZ 01-3623, belonging to one respondent No. 2. - Vehicle was validly insured with appellant, Insurance Company - Vehicle in which claimant was travelling met with an accident about 23 kms. away from Keifang - As a result of accident, claimant sustained 55% permanent disability - At relevant time, vehicle was driven by respondent No. 1 - Appellant, Insurance Company, on receiving summon from learned Tribunal entered appearance and submitted written statement denying claim of claimant on various grounds - Appellant, Insurance Company participated throughout proceedings of claim case by conducting cross-examination, etc., of witnesses, produced by the claimant - Appellant also applied for allowing it to contest claim on all grounds available to owner of offending vehicle, which was allowed by learned Tribunal - Claimant took stand that while driving offending vehicle (Jeep), about 23 kms. away vehicle met with an accident in which she received serious bodily injuries - She was immediately hospitalised at Hospital and referred to Civil Hospital for further treatment - She could not recover from her injuries despite taking treatment prescribed by doctor and at long last due to injuries so sustained, she became permanently disabled – Held, appellant is that learned tribunal arrived at conclusion that claimant suffered permanent disability without examining doctor - Since claimant sustained injury, it was incumbent on part of claimant to have examined Doctor and establish its case as to what percentage of permanent disabilities was suffered by claimant - It would clearly appear that besides submitting a certificate from Doctor, no doctor who has treated claimant have been examined by claimant - Non-examination of doctor to establish extent of disabilities suffered by the claimant deny opportunity to Insurance Company to cross-examine Doctor - In Court jurisprudence witnesses put up by either of parties is subject to cross-examination so as to test veracity or the truthness or correctness of statement of witnesses - Learned tribunal may also summon the Doctor, who evaluated injury of claimant and/or issued certificate of disability to claimant, and in absence the said doctor, may examine any other qualified medical practitioner to evaluate disability suffered by claimant - Needless to say that Insurance Company would be entitled to cross-examine Doctor summoned as a witness by learned tribunal - However, as award has been set aside on technical ground and entire proceeding has been remanded for retrial in accordance with law - Appeal stands disposed of.
A.C. Upadhyay, J.
1. Heard Mr. S.N. Meitei, learned Counsel for the appellant. None appears on behalf of the respondents.
2. The appellant, Oriental Insurance Co. Ltd., has filed this appeal under Section 173 of the M.V. Act, 1988 praying for setting aside the final award and order dated 9.10.2008 passed by the learned Member, MACT, Aizawl in MACT Case No. 93 of 2005, whereby the Insurance Company was directed to pay an amount of Rs. 4,15,800 with interest @ 9% per annum on the awarded amount from the date of filing of this claim petition till realisation.
3. The facts leading to filing of this appeal may be summarised as follows:
On 22.12.1994 at around 2 P.M. in the afternoon, the claimant was proceeding from Aizawl to North East Khawdungsei in a jeep bearing Regn. No. MZ 01-3623, belonging to one, Rotuakliana, respondent No. 2. The vehicle was validly insured with the appellant, Insurance Company. The vehicle in which the claimant was travelling met with an accident about 23 kms. away from Keifang. As a result of the accident, the claimant sustained 55% permanent disability. At the relevant time, the vehicle was driven by respondent No. 1, R. Lalhlimpuia of Tuikual 'A' Aizawl. The claimant submitted petition before MACT Aizawl claiming compensation for having suffered 55% physical disability in the vehicular accident aforesaid.
4. The appellant, Insurance Company, on receiving summon from the learned Tribunal entered appearance and submitted written statement denying the claim of the claimant on various grounds. The appellant, Insurance Company participated throughout the proceedings of the claim case by conducting cross-examination, etc., of the witnesses, produced by the claimant. The appellant also applied under Section 170 of the M.V. Act, 1988, for allowing it to contest the claim on all grounds available to the owner of the offending vehicle, which was allowed by the learned Tribunal.
5. During the course of hearing, the learned Tribunal formulated following two issues for just decision of the claim case:
(1) Whether the claim application is maintainable or not?
(2) Whether the claimant is entitled to any compensation and if so, who is liable to pay and to what extent?
6. In order to substantiate the claim, the claimant examined as many as 3 witnesses including her. The claimant took the stand that while driving the offending vehicle (Jeep), about 23 kms. away from Keifang to Champhai, the vehicle met with an accident in which she received serious bodily injuries. She was immediately hospitalised at Saitual Hospital and referred to Civil Hospital, Aizawl for further treatment. She could not recover from her injuries despite taking treatment prescribed by the doctor and at long last due to injuries so sustained, she became permanently disabled.
7. The claimant also contended that she had a shop in her village and was doing business. Thus, she could earn about Rs. 3500 per month to support her old parents, brothers and sisters consisting of 5 members. However, as a result of the accident and consequent disability, she could not continue with her business.
8. The learned Tribunal, after having evaluated the evidence led by the witnesses and on perusal of the documents relied on by the parties, awarded compensation as aforesaid giving rise to this appeal.
9. The learned Counsel for the appellant contended that the learned Tribunal relied on the certificate issued by village council president, as a proof of income of the claimant, which is highly irregular and unjustified. The learned Counsel further pointed out that such certificates are easily available and, therefore, cannot be relied on without prima facie proof of having a business and income thereof as stated by the claimant. In support of his contention the learned Counsel for the petitioner relied on a decision of this Court reported in New India Assurance Co. Ltd. v. Kawllian Thanga and Anr. 2007 (3) GLT 444 wherein it was hold that the income certificate issued by th
