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2013 Supreme(HP) 935
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
DHARAM CHAND CHAUDHARY, J
New India Assurance Company Ltd. — Appellant
Versus
Shri Raj Kumar And Others — Respondent
Civil Writ Petition No. 5084 of 2009-I
Decided on : 02-01-2013
Advocate Appeared:
For the Appellant : B.M. Chauhan, adv
For the Respondent: Ravinder Thakur, Mr. Vishal Panwar, adv
The main legal point established in the judgment is the requirement for admissible disability certificates to be issued by doctors who treated the claimant or by a duly constituted Medical Board, and the importance of cross-examination of the assessing doctor for proving the genuineness of the certificate.
Headnote:
Disability Certificate - Motor Accident Compensation - [Motor Vehicles Act, 1988, Section 166] - The court discussed the admissibility of disability certificates issued by private practitioners and the requirement for evidence regarding the genuineness of such certificates. The judgment highlighted the need for disability certificates to be issued by doctors who treated the claimant or by a duly constituted Medical Board for admissibility in evidence. The court also emphasized the importance of cross-examination of the doctor who assessed the disability and the option to refer the claimant to a medical board for assessment.
Fact of the Case:
The petitioner challenged the compensation awarded by the Motor Accident Claims Tribunal on the ground of being perverse due to the assessment of compensation based on a disability certificate issued by a private practitioner, which the petitioner argued was inadmissible.
Finding of the Court:
The court found that the disability certificate issued by the private practitioner was not admissible as evidence, and there was a lack of legal and acceptable evidence to show the petitioner's sustained permanent disability. The court decided to set aside the impugned award and remand the case for fresh disposal after referring the claimant to a medical board for assessment.
Issues: Admissibility of disability certificate issued by a private practitioner, assessment of compensation based on the certificate, and the need for legal and acceptable evidence of permanent disability.
Ratio Decidendi: The court emphasized the requirement for disability certificates to be issued by doctors who treated the claimant or by a duly constituted Medical Board for admissibility in evidence. It highlighted the importance of cross-examination of the assessing doctor and the option to refer the claimant to a medical board for assessment.
Final Decision: The petition succeeded, and the impugned award was quashed and set aside. The case was remanded for fresh disposal after referring the claimant to a medical board for assessment.
JUDGMENT :
Dharam Chand Chaudhary, J.
In the present writ petition, the award dated 30.6.2009, passed by learned Motor Accident Claims Tribunal-II, Solan, in claim petition No. 14-S/2 of 2005 is under challenge on the sole ground of being perverse. The petitioner admittedly insurer of the offending vehicle bearing registration No. HP-64-0400 seems to be aggrieved by the assessment of the compensation awarded by learned Motor Accident Claims Tribunal below with the help of disability certificate Ex. PW-3/A issued by Dr. Dwarka Prasad, Psychologist Kothi No. 149, Sector 48-C, Chandigarh, a private practitioner, with whom the petitioner never remained under treatment and rather as per his own case after the accident, firstly he remained under treatment in Zonal Hospital, Solan and thereafter at PGI, Chandigarh.
2. Having gone through the record and submissions made on both sides, there is no dispute so as to the accident of the vehicle i.e. Truck bearing registration No. HP-64-0400 occurred on 23rd September, 2005, near Village Dhalli, Tehsil Rajgarh, District Sirmaur. There is again no controversy so as to the fact that the claimant-1st respondent was working as cleaner with the offending vehicle/truck and paid wages at the rate of Rs. 1800/-. He received injuries including head injury in the accident and was brought to Zonal Hospital for treatment. The OPD Slip is Ex. PW-1/A. He was referred to PGI Chandigarh on 24.9.2005. The OPD Tickets Ex. PW-5/A to Ex. PW-5/H is the record pertaining to the treatment given to the claimant-1st respondent in PGI Chandigarh. He was discharged on 30.9.2005. The disability certificate from PGI Chandigarh or Zonal Hospital, Solan has not been produced in evidence for the reasons best know to the Claimant-1st respondent. However, the disability certificate Ex. PW-3/A issued by PW-3, Dr. Dwarka Prasad, a private practitioner, has been produced in evidence.
3. Learned Counsel representing the petitioner has forcefully contended that in view of the claimant-1st respondent having remained under treatment in Zonal Hospital, Solan and PGI Chandigarh, the disability certificate issued by these hospitals alone could have been admissible in evidence and not the certificate Ex. PW-3/A, issued by a private practitioner, who never examined the claimant-1st respondent nor remained under his treatment.
4. On the other hand, it is argued on behalf of the claimant-1st respondent that in view of there being no cross examination qua authenticity and genuineness of disability certificate Ex. PW-3/A conducted on behalf of insurer-petitioner, learned Motor Accident Claims Tribunal below has rightly appreciated the same while assessing the compensation awarded to the petitioner. The question as to whether the disability certificate in the nature of Ex. PW-3/A is admissible in evidence or not has been set at rest by the Apex Court in Raj Kumar Vs. Ajay Kumar and Another, (2011) ACJ 1 relevant portion of which reads as under:--
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificate to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate.
