(1) FA. 3124.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 3124 OF 2009 Dhondiram S/o Ganpatrao Bengal, Age : 57 years, Occu.: Agri./Labour, R/o : Bori (Shikari), Tq. and Dist. Hingoli .. Appellant VERSUS 1] Mrs. Harjeet Kaur, Age : Major, Occu.: Business, R/o Hyderabad, C/o Wahey Grur Transport 3-8-2/6 Chintalkunta Check Post, Hyderabad (A.P.) 2] National Insurance Company Ltd., through Br. Manager, Nanded .. Respondents Mr. Sachin Deshmukh, Advocate for the Appellant Mr. S.P. Chpalagaonkar, Advocate for respondent no.2 ... CORAM : K.U. CHANDIWAL, J. DATED : 22ND APRIL, 2010 ORAL JUDGMENT:- 1] Heard. Admit. Heard finally. The record available, perused by both the sides. The dismissal of claim petition, made the claimant to prefer this Appeal questioning the legality of the order recorded by the learned Judge, Motor Accident Claims Tribunal, Hingoli in M.A.C.P. no. 342 of 2000 dated 15.10.2005. (2) FA. 3124.2009 2] The factual matrix, to be precisely put in, illustrate, the claimant, an agricultural labour earning Rs.70/- per day, on 18.9.1999 suffered an accident by the truck bearing registration no. AP-11/T-3264 and with a tempo coming from opposite side. The petitioner Dhondiram suffered crush injuries. He was referred to Rural Hospital at Hingoli where after the preliminary medical treatment, as the health was deteriorating the petitioner was referred to Guru Gobindsinghji Hospital at Nanded where he was hospitalised from 18.9.1999 till 24.12.1999 as an indoor patient. 3] The learned Judge accepted the accident injuries however, dismissed the claim on the ground that the permanent disability is not proved by the claimant, as the medical certificate and the discharge card at exhibit 28 are not proved by examination of the Medical Officer. The learned Judge has also observed, the discharge card at exhibit 28 and the other discharge card at exhibit 4/4 are not identical and are differing which according to him throws doubt on the case of the petitioner. 4] The order of the learned Judge furnish an impression, indeed the medical certificate is not proved by the claimant. However, the learned Judge (3) FA. 3124.2009 certainly erred in not reading the medical certificates since the counsel representing the respondents have admitted when the documents were tendered during evidence. It was in this scenario the learned Judge, recorded while exhibiting documents exhibit 23, the disability certificate ("admitted by respondents and exhibited R and R"). No astrologer is required in this situation to additionally establish the medical certificate which in unequivocal terms illustrate the nature of injuries. The scale of 20% of the disability suffered by the claimant having examined on 3.8.2001. The certificate is supported with photographs of claimant which has not been controverted. 5] Section 58 of the Evidence Act contemplates that the Judge can ask the party to prove a document in his discretion, however, no such eventuality has surfaced in the present proceedings and the petitioner certainly was taken aback by the approach of the learned Judge in dis-believing the medical certificate. Had the learned Judge, any doubt in terms of section 58 of the Evidence Act, he was open to notify to the party concerned and then to direct to lead evidence. Section 58 when un-equivocally translates/states "facts admitted need not be proved", the petitioner was not supposed to further divulge details in support of the medical certificate. In the result, the approach of the (4) FA. 3124.2009 learned Judge certainly warrants condemnation and requires interference. 6] Mr. Deshmukh during the course of his submission, while asserting for award of interest @12%, took recourse to the judgment in the matter of National Insurance Company Ltd. V. Prembai Patel and ors. reported in 2005 ACJ 1323 in which the Apex Court in the fact situation, has awarded interest @12% per annum from the date of filing of the claim petition. The observations of the Apex Court, in paragraph no.17 would be restricting to the case in hand and the liability of the insurance company of the said case was restricted to the one arising under the Workmen's Compensation Act. The events illustrated in the above judgment will not be applicable with the same force in the present proceedings. 7] During the course of submissions, Mr. Chapalgaonkar representing the Insurance company fairly accepted that there was admission from the counsel representing the Insurance company and the further details, indeed are proved. He has calculated the eligibility of the claimant in tune to the appellant's earning of Rs.70/- per day with working of 25 days in a month, the same comes to Rs.21,000/- per annum. Since there was loss of income for an year, the claimant will be entitled to (5) FA. 3124.2009 Rs.21,000/-. Additionally the claimant having established suffered medical expenses of Rs.14,400/-, he will be eligible for the same. Rs.10,400/-, can be received by the claimants for meeting expenses of attendance of taxi or fare. The claimant asserts that he has suffered 20% of the disability. It was a crush injury, however, the loss of income is not properly demonstrated. Without much discarding this lacuna, the claimant's entitlement for pain and sufferings is estimated @Rs.25,000/-. The figure comes to Rs.70,800/-. The claimants shall be entitled to receive Rs.70,800/- in addition to the amount of Rs.25,000/- he has already received. The amount to carry interest @7.5% per annum from the date of petition till realisation. 8] First Appeal is allowed in the above terms. Copy of the judgment be sent to the learned Judge for reference. Sd/- (K.U. CHANDIWAL, J.) arp