IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.194 of 2004 Judgment reserved on: 1.12.2008 Date of decision: 8.12.2008 Maan Singh …….Appellant Vs. Balbir Singh Baushta and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. B.K. Malhotra, Advocate. For the Respondents : Mr. R.S. Jamalta, Advocate, for respondent No.1, Mr. K.D. Sood, Advocate with Mr. Sanjeev Sood, Advocate, for respondent No.3. Kuldip Singh, Judge. 1. This appeal has been directed for enhancement of compensation against award dated 28.6.2003 passed by learned Motor Accident Claims Tribunal-II, Mandi in Claim Petition No.26 of 1997 whereby an amount of Rs.25,000/- has been awarded to appellant along with 9% per annum interest from the date of filing of the petition till realization, which was ordered to be paid by respondent No.3 insurer. Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2. The brief facts of the case are that appellant was travelling as conductor in truck No.HP-10-2229 on 22.8.1996 at about 5.30 A.M. which was being driven by respondent No.2. It has been alleged that truck went out of the road near Lakkar Bazar, Shimla on account of rash and negligent driving on the part of the driver of the truck, as a result of which appellant sustained multiple injuries. The case was reported at Police Station, Sadar Shimla vide FIR No.258/96. The appellant sustained multiple injuries on the body including head injury with concussion which resulted into hearing loss. The appellant was 22 years of age at the time of accident and was earning Rs.3,000/- per month. On these grounds the petitioner filed petition claiming Rs.3,00,000/- compensation along with interest. 3. The petition was contested by respondent No.3 insurer by filing reply and denied the claim, more details of the defence of insurer are not necessary in view of limited controversy in the appeal. The learned Tribunal has awarded Rs.25,000/- to the appellant as noticed above, hence appeal for enhancement. The respondents have accepted the award and have not filed any appeal or cross-objection against the impugned award. 4. I have heard Mr. B.K. Malhotra, learned counsel for the appellant, Mr. R.S. Jamalta, learned counsel for respondent No.1, Mr. K.D. Sood, learned counsel for respondent No.3 and gone through the record. It has been submitted on behalf of the appellant that less compensation has been awarded to the appellant who has suffered 70% permanent disability of hearing …3… as per disability certificate Ex.PW-1/A. The appellant was earning Rs.2,000/- salary and Rs.50/- daily allowance while working conductor on the truck. The appellant was just 22 years at the time of accident and his hearing has been impaired in the accident, in these circumstances the award of Rs.25,000/- is on the lesser side. The learned counsel for the respondents have supported the impugned award and have submitted that appellant has miserably failed to prove his disability and income. The learned Tribunal despite this has awarded Rs.25,000/- which is more than sufficient keeping in view the facts of the case. 6. PW-1 Dr. D.K. Arora, ENT Surgeon, Zonal Hospital, Mandi has placed on record disability certificate dated 26.7.1997 Ex.PW-1/A of the appellant which is based upon audiogram mark-A. In cross-examination he has stated that he has not examined the appellant with any instrument. The disability certificate has been issued on the basis of audiometric report dated 18.3.1997. PW-1 in his statement has nowhere stated that he or any other member of the board examined the appellant before issuing disability certificate Ex.PW-1/A which is clear from the statement of PW-1 that disability certificate is based upon on audiometric report dated 18.3.1997. PW-2 Maan Singh in his cross-examination has stated that he has heard the cross- examination properly. In view of this it was incumbent upon appellant to prove authenticity of audiogram mark-A which has been seriously disputed by the other side. The perusal of mark-A would show that it has not been signed by any one. On mark-A …4… name of the person of course has been mentioned as Maan Singh but his age has been given 18 years on 18.3.1997 at the time of examination whereas appellant in his claim petition dated 28.4.1997 has given his age 22 years. In these circumstances it is doubtful whether audiogram mark-A is of the appellant or not? The learned counsel for the appellant has submitted that strict rule of evidence is not applicable before the Tribunal. It is not necessary in every case that the doctor who examined the injured or the deceased should appear in the witness box in a claim case to prove the report. He has submitted that the Tribunal conducts an enquiry under the Motor Vehicles Act and it was incumbent on the Tribunal to clear any doubt left in the evidence while awarding compensation. PW-2 Maan Singh in his statement has stated that he was discharged from Snowdown hospital on 2.9.1996. In his statement he has nowhere stated that he was examined at IGMC on 18.3.1997 and thereafter mark-A was issued. In these circumstances it cannot be said that mark-A audiogram has been linked with the injuries of appellant. The argument raised by the appellant is not so simple. The power of the Court to allow more material on record by way of additional evidence is well known but it does not mean that in every case the Court or the Tribunal should collect the evidence. In the present case, the appellant has miserably failed to prove impairment of hearing due to accident, therefore, the earning of the appellant is not material. The learned Tribunal in the facts and circumstances of the case has rightly awarded Rs.25,000/- to the appellant along with interest. …5… The learned Tribunal has rightly appreciated the material on record. The appellant has failed to make out any case to show how the compensation awarded to him is on the lesser side. 9. No other point was urged. 10. The result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. December 8 ,2008 (sks)