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2020 Supreme(Gau) 175
GAUHATI HIGH COURT
Kalyan Rai Surana, J.
New India Assurance Company Ltd. - Appellant
Versus
Sri Ajay Kumar Goyal & Anr. - Respondent
MACApp. 517/2017
Decided On : 26-02-2020
Mr. R.K. Bhatra, Ms. R. Gangawat, Mr. A. Kalita, Ms. P. Huzuri, Advocates, for the Appellant; Mr. S. Chamaria, Mr. M. Phukan, Mr. S. Chanda, Mr. D. Sarmah, Mr. M. Ali, Advocates., Mr. S.K. Borkataki, Advocate, for the Respondent
Headnote:
Motor Vehicles Act, 1988 – Sections 173, 166 – Employees Compensation Act, 1923 – Sections 3 and 4 – Issue on Accident, Treatment –The learned counsel for the appellant has submitted that the respondent No.1 did not prove any document to show that he had been given initial treatment at hospital and, as such, it is submitted that without any proof being tendered for his initial treatment, the respondent No.1 could not prove the nexus with his treatment –It is submitted that as per the evidence on record, more specifically from the cross examination of the respondent No.1 and Ext.B and Ext.C, the appellant had established and proved that the income proved through income tax record was not reliable because on the date of the accident, the respondent No.1 was not doing his own business but he was actually rendering service at a firm under the name and style of M/s. Assam Glass House as glass cutter, drawing salary of Rs.8,000/- per month –Held, it is made clear that it may not be within the capacity of the respondent No.1 to get a Medical Board constituted with at least one orthopedic surgeon and a busy orthopedic surgeon may not be willing to give a report and then come to Tribunal to give evidence, as such, it would be open to the learned Tribunal to get the respondent No.1 examined by an orthopedic surgeon employed in Govt. Hospital to assess the disability including functional disability with reference to the whole body or whether it is only with regard to a limb –It is also provided that evidence of the doctor may preferably be recorded through an Advocate Commissioner at the chamber of the Doctor or by giving a specified time for attending the Tribunal instead of requiring them to attend the Tribunal and wait in the Tribunal for the entire day, as envisaged in paragraph 23 of the case of Raj Kumar (supra) –Thereafter, the learned Tribunal shall assess the loss of earning capacity in light of the ratio laid down in the case of Raj Kumar (supra) and Sandeep Khanuja (supra) –Appeal Partly allowed
JUDGMENT
1. Heard Mr. R.K. Bhatra, the learned counsel for the appellant as well as Mr. S. Chamaria, the learned counsel appearing for the respondent No.1/ claimant, as well as Mr. S.K. Borkataki, the learned counsel for respondent No.2 i.e. owner of the offending vehicle.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988 is directed against the order and award dated 01.06.2017, passed by the learned Member, Motor Accident Claims Tribunal, Nagaon in MAC Case No. 128/2015, thereby directing the appellant to satisfy the award of Rs.13,33,202/- in favour of the respondent No.1 within 3 months, failing which the compensation would bear interest at the rate of 7% p.a.
3. The respondent No.1 is the claimant before the learned Tribunal. The case projected by the respondent No.1 was that on 18.10.2014 at about 5.20 pm while he was going towards Nagaon on his bicycle on left side of the road, the offending vehicle (truck) bearing registration No. AS-02-C-1999 knocked him from behind. It was claimed that the driver of the offending vehicle was driving in a rash and negligent manner and that as a result of the accident, the respondent No.1 had suffered grievous injuries and, as such, he filed a claim petition under Section 166 of the Motor Vehicles Act, 1988.
4. The appellant contested the claim petition by filing written statement. The age, income and occupation of the respondent No.1 was denied. It was also stated that the driver of the offending vehicle did not have a valid licence, as such, they were not required to indemnify the owner of the vehicle. The respondent No.2 did not contest the claim petition.
5. Upon pleadings, the following issues were framed for adjudication of the claim petition:-
1. Whether the claim petition is maintainable?
2. Whether the accident occurred due to rash and negligent driving of the driver of vehicle No. AS-02/C-1999 (truck)?
3. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same?
4. To what relief/ reliefs are the parties entitled to?
6. The respondent No.1 adduced his own evidence as PW-1 and he had examined the S.D.M.O. in the office of the Joint Director of Health, Nagaon as PW-2. The respondent No.1 had exhibited the following documents, viz., (1) Accident Information Report (Ext.1), (2) Disability Certificate (Ext.2), (3) Discharge Certificate of Marwari Hospital & Research Centre (Ext.3), (4) Prescription of Dr. N.K. Baidya, Patna (Ext.4), (5) Prescription of Dr. Bipul Borthakur, Dibrugarh (Ext.5), (6) Investigation Reports, prescriptions, cash-memos, copy of PAN Card, Income Tax Returns, Income & Expenditure Account, X-Ray reports (Ext.6 to 199), X-Ray plates (Material Exhibits No. 1 to 20). The appellant had examined one Biplabjit Rajkumar, the Branch Manager of the appellant as DW-1, who had exhibited the following documents, viz., (1) Investigator report (Ext.A), (2) Statement of claimant (Ext.B), (3) Statement of employee (Ext.C).
7. In respect of issue No.1, the learned Tribunal held that as the respondent No.1 had sustained injuries in the accident that had occurred due to rash and negligent driving of the offending vehicle and that the owner, driver and the insurer of the offending vehicle were impleaded, the claim petition was maintainable.
8. In respect of issue No.2, it was held that due to the accident, the respondent No.1 sustained grievous injuries on different parts of his body including his right leg and that he was treated at the hospital at Guwahati from 18.10.2014 to 28.10.2014 and that due to complications, he was again admitted in the said hospital from 07.11.2014 to 14.11.2014. It was further held that during the cross- examination, the defence could not assail the evidence of the respondent No.1 that the accident happened due to fault of rash and negligent driving of the offending vehicle by the driver. It was also held that the insurance could not establish that the accident did not occur due
