1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2040 OF 2005 Nemichand H.Rathod .. Petitioner. Vs. Sajid Masood & Ors. .. Respondents. Mr.M.B.Kotak for the petitioner. CORAM : D.B. BHOSALE, J. DATED : 10TH DECEMBER, 2009 P.C. . Heard learned counsel for the petitioner. None appears for the respondents, though served. 2. Rule. By consent, rule made returnable forthwith. Learned counsel appearing for the respondents waives service. By consent, the petition is taken up for hearing and final disposal at the admission stage itself. 3. By this writ petition the petitioner has impugned the order dated 25.10.2009 passed by the Motor Accidents Claims Tribunal dismissing the application filed by the petitioner for compensation on the principal of “No fault liability” under section 140 of the Motor Accidents Act. Learned member of the tribunal has dismissed the application holding that “Disability certificate produced on record shows that injured/applicant sustained fracture of the middle third of right Tibia. Nothing has 2 been stated as to whether it is united, mal-united which resulted in disability and that it will not be cured.” I have perused the disability certificate issued by Dr.Satish Wagh. The certificate issued by Dr.Wagh reads thus: “This is to certify that I have examined Mr.Namichand T.Rathod, 53 yrs. Male, today. He gives history of vehicular accident on 14/9/2002, for which he was admitted to B.C.J.General Hospital, Santacruz, Mumbai. He was suffering from Fracture of the middle third of right tibia. He was given above knee plaster cast and discharged on 24/9/2002. He was asked to use axillary crutches. Only the discharge card is available with the patient. The detailed papers and X-rays are not available with the patient. Now he complains of pain in the right leg on walking. There is minimal tenderness on the middle third of right tibia. He limps while walking. The movements of the right knee and ankle are terminally restricted. The power in the right knee and ankle is grade IV. He can not run OR jump on the right leg. He can not sit down OR sit cross legged with comfort. He can not climb up and down with ease. He can not walk for a long distance. He can not function as a Policeman with previous, stamina, vigour and vitality. After perusal of the medical papers available patient history and clinical examination, in my opinion he has a permanent partial disability of Twenty-Five percent (25%) for the right leg.” 3 4. In view the disability certificate issued by Dr.Wagh, in my opinion, the tribunal ought not to have gone into the fact, at this stage, whether the alleged disability is curable. The certificate clearly shows that the applicant sufferred permanent partial disability of 25%. In the circumstances the impugned order deserves to be set aside. Order accordingly. The application filed by the petitioner bearing Exhibit-2 in Claim Application No.1810-A2003 under section 140 of Motor Accidents Act is allowed. Rule is disposed of accordingly. No costs. (D. B. Bhosale, J.)