IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA F.A.O. No. 163 of 2006 Date of Decision: 24.05.2010 __________________________________________________________ Smt. Ajmer Kaur. ….Appellant. Versus Sh. Shiv Chand Yadav and others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. __________________________________________________________ For the Petitioners: Mr. Ramakant Sharma, Advocate. For the Respondents 1 and 2: Mr. R.K. Gautam, Senior Advocate, with Mr. Mehar Chand, Advocate. For the Respondent No. 3: Mr. B.M. Chauhan, Advocate. __________________________________________________________ Dev Darshan Sud, J. (oral) The Claimant is aggrieved by the quantification of compensation awarded to her by learned Motor Accident Claims Tribunal-II, Solan. 2. The brief facts of the case are that the appellant instituted a petition under Section 166 of the Motor Vehicle Act, 1988 claiming damages for injuries sustained by her in an accident involving the vehicle of respondent No. 1. In the Claim Petition instituted before the Tribunal, the averments made by the 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 appellant was that she was earning Rs. 8,000/- per month as house wife and also by assisting her family in agriculture work. She also used to do work of dairy farming. She remain admitted at Post Graduate Institute of Medical Research (PGI) Chandigarh w.e.f. 15.3.2002 to 10.4.2002, where she was treated for fracture of right thigh and pelvis and iron rods have been fixed surgically in her right thigh. She regularly called to the Hospital for medical examination. 3. According to the appellant, the accident took place on 15.3.2002 at about 2.00 P.M. near Truck Union, Barotiwala, when she along with Kamla Devi was going on foot towards Barotiwala Market on their own side of the road (left side). So far as the facts regarding the occurrence of the accident and the injuries sustained by the appellant for which, she was treated at PGI, Chandigarh, are concerned, I am not detailing them, as there is no dispute about these facts. The only dispute is with respect to the quantum of compensation awarded by the learned Motor Accident Claims Tribunal, which according to the appellant is very low and not in accordance with law. Submission made on behalf of the appellant is that according to Ex. PW 5/A, which is the disability certificate issued by doctor Anil Bansal, PW 5, the disability is 75 per cent. Coupled with her own statement, where she has stated that after the accident she has become incapable of performing any work, learned counsel for the appellant submits that the disability be treated at par of having suffered with an injury which has made the appellant complete incapacitated to perform any work. 4. Learned counsel appearing for the respondent-Insurance Company submits that the certificate Ex. PW 5/A can not be used for the purpose of assessing the disability of the appellant as she was treated at PGI and PW 5 Dr. Anil Bansal could not assess the disability. Learned counsel appearing for the appellant submits that this submission can not be accepted as a proposition of law. He relies upon the decision of the Andhra Pradesh High Court in Syed Saleem Vs. 3 Abdul Shukur and another, 2007 ACJ 491, where a similar question arose for the determination of that Court. In particular, he refers to paragraph 14, where the Court held:- “14. It is pertinent to note that no oral or documentary evidence was adduced on behalf of the insurance company, except making the copy of the insurance policy. The evidence of doctor, PW 5, with regard to his certification of disability sustained by the claimants is to be accepted, though he has not actually treated the claimants, as he is a qualified doctor. I am fortified in my view by the Division Bench judgment of this court in Charan Singh Vs. G. Vittal Reddy, 2003 (4) ALD 183. The relevant portion of para 9 of the judgment reads thus: “…..As it is, Workmen’s Compensation Act is a beneficial legislation enacted for protecting the interests of workmen who are the victims of accidents during the course of their employment and, therefore, clear-cut method has been stipulated in the Act itself. In case of scheduled injuries, even in the absence of any medical evidence, the compensation will automatically follow as per the schedule to the said Act. But, the difficulty comes only in the case of non-scheduled injury in respect of which, assessment has to be made by the qualified medical practitioner as contemplated under the Act. Form this, it cannot be concluded that the qualified medical practitioner should be only the medical practitioner who has treated the workman concerned. If that is to be accepted, it leads to several anomalies. The doctor who treated the workman may not be available for various reasons and the workman can not be expected to stay at a particular station forever. Further, the permanent disability cannot be assessed immediately on the 4 next day of sustaining the injuries. In order to assess the permanent disability, naturally, wounds have to be healed so as to make assessment of the permanent disability in relation to loss of earning capacity. The learned single Judge has recorded finding in his order that the doctor who treated the workman ought to have been examined and the certificate issued by the doctor after lapse of time ought not to have been relied on. But under the provisions of the Act and the rules made thereunder, there is no such requirement to prove the disability by examining the very same doctor who treated the workman and to obtain such certificate from the very same doctor.” Though the above case arise under the Workmen’s Compensation Act, the ratio laid down by the Division Bench can be made applicable to the instant case which arise under the Motor Vehicles Act, since under the Motor Vehicles Act and the rules made thereunder, there is no requirement to prove the disability by examining the very same doctor who treated the victim and to obtain such certificate from the very same doctor. The ratio can also be adopted since both Acts are beneficial legislation.” Learned counsel appearing for the respondent submits that this proposition of law can not be accepted on its face value, as the same Court in M. Jayanna Vs. K. Radha Krishna Reddy and another 2005 ACJ 244, had held that disability should be assessed by doctor of the Hospital/Institute treating the injured. In particular he makes reference to clause (vii) to (ix), which are directions issued by the Court, which reads:- “(vii) The Director of Medical and Health Services, shall direct all the doctors working in the 5 government hospitals that the doctors who treated the injured or the dead, shall alone appear before the court to give evidence along with the relevant case-sheets. Any certificate relating to the medico- legal cases, shall be given by the hospital authorities concerned, under the signature of the doctor concerned, who is said to have treated the injured. The case-sheer should reveal the issuance of the wound certificate as well as the disability certificate. (viii) Likewise, the director shall issue instructions to all the doctors not to issue any medical certificate independently on their own if they have not treated the patient at the relevant point of time, i.e., at the time when the accident has taken place. (ix) The Indian Medical Counsel of A.P. Branch, which is the supervisory body over the conduct of the doctors registered with it, shall issue a public notification in this regard ad if necessary by issuing individual notices, directing all the private doctors not to issue any medical certificates in the medico- legal cases, unless he himself treated the patient immediately after the accident.” He also seeks sustenance from the judgment of Punjab and Haryana High Court in Ram Kiran Goyal Vs. Sub Divisional Engineer, Mechanical and others, 2009 ACJ 1070. In particular he refers to para 14, which reads:- “14. So far as the above authority is concerned, learned single Judge has already assessed compensation separately for both pecuniary and non-pecuniary damages as the compensation has been awarded under separate heads, i.e., permanent disability and pain and suffering, medicines and future loss of income and we do not find any scope for enhancement of compensation. So far as the disability certificate, Exh. P18, is concerned, it does 6 not inspire any confidence having been obtained from a private doctor, though the other treatment is taken from the government hospital. However, the compensation which has been awarded for admitted permanent disability needs to be enhanced and for that, we are inclined to follow the decision of Division Bench of this court referred to above where Rs. 2,000 has been awarded for 1 per cent disability to the injured. On that count, the compensation in respect of permanent disability which is awarded vide Exh. P31 as 55 per cent, the compensation is thus, assessed at the rate of Rs. 2,000 for every 1 per cent disability to the tune of Rs. 1,10,000.” I am in respectful agreement with the proposition of law as laid in Syed Saleem’s case. I cannot persuade myself to accept the law as laid down in M. Jayanna’s case where certain directions have been issued. So far as the judgment of Punjab and Haryana High Court in Ram Kiran Goyal Vs. Sub Divisional Engineer, Mechanical and others, 2009 ACJ 1070 is concerned, all that I need say is that it does not lay down that only certificate issued by the Government hospital is concerned would be the only acceptable piece of evidence. The reasons for not accepting the certificate have not been elaborated. Merely rejecting such a certificate on the ground that it was issued by a private practitioner cannot be accepted as a proposition of law. It is the credibility of the witnesses which has to be tested. The validity of the disability certificate can always be tested by cross- examining the doctor or by presenting some other evidence on record to show either that the doctor, who issued the certificate, is not qualified to assess disability or the disability so assessed is not that which is reflected in the certificate. In the present case, PW 5 Dr. Anil Bansal states that he had worked as an Orthopedic Specialist in H.P. Health Department from 1986 to 2004, where after he sought voluntary retirement when he was working in Civil Hospital Solan 7 and started his own clinic. He further states that he examined the injured and it was only after detailed examination that he issued Ex. PW 5/A. I do not find anything in his cross-examination, that any case has been put to him that he was either not a qualified doctor in treating cases of orthopedic injuries or was professionally incapable of assessing orthopedic disability. Infact, if his evidence in examination-in-chief is considered, he has experience of more then eighteen years of working in Government Hospitals and treating cases of orthopedic trauma. The only question touching the disability asked from him is that he did not treat the injured, which was but obvious from the facts and circumstances of the case. In these circumstances, I do not find any substance in the objection taken by the Insurance Company that certificate Ex. PW 5/A can not be relied upon. 5. The case may be considered from another angle also. I do not find anything in cross-examination of PW-3 Smt. Ajmer Kaur, which contradicts her statement in examination-in-chief stating that after the accident, she has been unable to perform normal work. This would be another factor for determining the extent of disability and the quantum of compensation to be awarded to her. 6. Learned Tribunal, while determining the compensation held that the petitioner has to be paid Rs. 80,000/- for future earnings. Coupled with the evidence from the P.G.I, Chandigarh in the nature of Ex. P-6 and Ex. P-35, which conclusively established that she had undergone surgery for insertion of rod in her pelvis etc., there is no doubt in the mind of this court that the petitioner has been subjected to hospitalization for a month and thereafter had to visit the hospital for follow up treatment. Her statement that she was earning Rs. 8,000/- per month also remains un-rebutted. In Lata Wadhwa and others Vs. State of Bihar and others (2001) 8 SCC 197, Supreme Court held that for a house wife, 8 doing no other work, the income can be safely assessed at Rs. 3,000/- per month. This Court in Suman Lata Kuthiala & ors. Vs. Piyare Lal & ors, Latest HLJ 2009 (HP) 1131 has also assessed the income of a house wife at Rs. 5,000/- per month. It is proved by the evidence on record that the petitioner is not performing the same work as she was before the accident, after sustaining the injuries. A sum of Rs. 30,000/- awarded for loss of earning is very meager. Learned counsel appearing for the petitioner submits that a multiplier of 12 has to be applied on income of Rs. 8,000/- per month. This submission can not be accepted. In the facts and circumstances of the case, I deem it proper to award a lump sum of Rs. 2,00,000/- to the petitioner under this head over and above the amount awarded by the Tribunal. The petitioner shall be entitled to Rs. 2,00,000/-. This additional awarded amount shall not carry any interest. The amount be paid to the petitioner within a period of twelve weeks from today. The petition is disposed of. There shall be no order as to costs. May 24, 2010 (Dev Darshan Sud), (KRS) Judge