ORISSA HIGH COURT: CUTTACK MACA No.1075 of 2005 From a judgment dated 5th August, 2005 passed by 3rd M.A.C.T., Jajpur in M.A.C. Case No.57 of 2003. ----------------- National Insurance Company Ltd. … Appellant. -Versus- Pramod Kumar Aich & another … Respondents. For Appellant : M/s. (Dr.) A.K. Rath, A.K. Panda & A.K. Nath For Respondents : M/s B.N. Samantaray, S.K. Naik, A.K. Nayak, B.K. Singh (For respondent No.1) M/s. P. Jena, D.C. Rout & S. Jena (for Respondent No.2) ----------- P R E S E N T : THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard and disposed of on 29.04.2011 B.N.Mahapatra, J. Copies of the appeal memo filed under Section 173 of the Motor Vehicles Act, 1988 by the National Insurance Company Ltd. as well as cross objection filed under Order XLI, Rule 22 of C.P.C. by the claimant-respondent have been exchanged between both parties. Both appeals and cross objection are admitted. On the request of learned counsel for parties, both the appeal and cross objection are taken up together for hearing. 2. The above appeal has been directed against the judgment dated 5th August, 2005 passed by 3rd M.A.C.T., Jajpur in M.A.C. Case No.57 of 2003 at the instance of the appellant-Insurance Company. 3. Case of the claimant-respondent before the Tribunal, in a nut shell, is that on 1.5.2003 at about 12 noon while the claimant was standing on the extreme left side of the road of N.H. No.200, the offending truck bearing Registration No.OR-O4A-1041 being driven in a high speed rashly and negligently by the driver dashed against the motor cycle of the claimant as a result of which the claimant fell down and sustained grievous injuries on his legs, nose and other parts of the body. He was shifted to the Hospital at Jajpur Road. From the X-Ray report it was found that the femur bone was completely fractured. The bone of the great Toe was also fractured. Fracture was also noticed on the nasal bone. Thereafter, the petitioner was referred to S.C.B. Medical College & Hospital, Cuttack by the treating physician, but the petitioner was treated in a private Nursing Home at Cuttack. The operation was conducted and nailing was done to set right the fracture. On 18.5.2003 the petitioner was discharged from the Nursing Home with an advice for regular check up. The petitioner had visited the Nursing Home for about 4 to 5 times. Another operation was undertaken to remove the nails fixed earlier. According to the claimant-respondent, due to accident he suffered a permanent partial disability and he being a business man could not look after his business. Now he is depending on others to 2 perform his day-to-day work. In the claim petition he had claimed compensation for pain, suffering, mental agony, medicine expenses and other incidental charges. 4. Before the Tribunal owner of the offending vehicle remained absent and was set ex parte. Opposite party no.2-Insurance Company- appellant filed written statement pleading inter alia that there was no accident as claimed by the claimant. The accident occurred due to rash and negligent driving of the driver of the offending vehicle. The offending vehicle was not covered by valid insurance policy issued by opposite party no.2 and the driver of the offending vehicle had also no driving licence. Therefore, the Insurance Company is not liable to pay the amount of compensation. On the pleadings of the parties, the Tribunal framed four issues. Taking into consideration the oral and documentary evidence produced/adduced before the Tribunal, the Tribunal came to the conclusion that the accident took place due to rash and negligent driving of the driver of the offending vehicle and the offending vehicle was covered by a valid Insurance Policy issued by the Insurance Company. The driving licence of the driver of the offending vehicle was valid at the time of accident. The Tribunal further assessed the annual income of the claimant-respondent at Rs.25,000/- and 10% of his income towards partial permanent disability. Applying 15 multiplier the learned Tribunal calculated the amount of compensation at Rs.37,500/. Rs.36,770/- was 3 awarded towards medicines and other miscellaneous charges. Thus a total compensation of Rs.74,270/- was allowed besides cost of Rs.1,000/-. The appellant-Insurance Company was directed to pay the amount of compensation along with 6% interest both pendente lite and future interest from the date of filing of claim petition till the date of payment. Rs.40,000/- was directed to be kept in a fixed deposit in any Nationalized Bank for a period of 5 years with interest payable every month and rest amount together with interest and cost was directed to be paid in cash to the claimant by the insurer. 5. Dr. Rath, learned counsel appearing on behalf of the appellant-Insurance Company submits that on 09.07.2009 he has filed two affidavits denying that the vehicle was covered under valid insurance policy at the time of accident. Learned counsel further contends that even though the Medical Board has issued the disability certificate, the author of the same has not been examined and therefore, no reliance should be placed on such certificate. 6. Learned counsel appearing on behalf of claimant-respondent No.1, who has filed the cross-objection submits that the vehicle was covered under a valid insurance policy during the relevant time of accident. Relying on the finding of the Tribunal on issue No.3, it is submitted that the Tribunal has given categorical finding on the basis of 4 the documents produced before it that the vehicle was covered under a valid insurance policy. It is further submitted that the amount of compensation awarded by the Tribunal is at extremely low. 7. On the rival contentions, the following issues fall for consideration by this Court : (i) Whether the Tribunal is justified to hold that the offending vehicle was covered by a valid Insurance Policy at the time of accident ? (ii) Whether the Tribunal has erred in accepting the disability certificate issued by the Medical Board ? (iii) Whether the amount of compensation awarded by the Tribunal is just and proper ? 8. Issue No.(i) is whether the Tribunal is justified in holding that at the time of accident the offending vehicle was covered by a valid insurance policy. Referring to two affidavits dated 09.07.2007 and 14.07.2007 filed before this Court, Dr.Rath submits that the offending vehicle was not covered under any valid insurance policy. 9. It is a fact that neither before the Tribunal nor before this Court any evidence has been adduced on behalf of the Insurance Company in support of its contention that the offending vehicle was not covered by any valid insurance policy. Only two affidavits as stated above have been filed denying that at the relevant time the vehicle was not covered under any valid insurance policy. 5 10. These affidavits are not accompanied by the copy of the Insurance Policy on which the appellant wants to rely upon. No application has also been filed by the appellant seeking permission of this Court to lead evidence on the basis of the affidavit filed. A party desiring to lead additional evidence before the appellate Court has to apply in writing for permission to do so stating precisely as to what evidence he wants to lead in the appeal proceeding and the reason in support thereof. Unless, therefore, such an application is made, the appellate Court may be well justified in refusing to grant permission. (See Savitaben Ishverlal v. Surat Municipal Corporation, Surat, AIR 1985 Gujarat- 174 ). 11. The Bombay High Court in the case of Mrs. Indira Bhalchandra Gokhale (deceased by LRs) v. Union of India and another, AIR 1990 BOMBAY 98 held that : “6. …… Under O.XLI, R.27, C.P.C. production of additional evidence whether oral or documentary is permitted only in certain contingencies. The first contingency is that the evidence sought to be produced in the appeal Court is that which the trial Court has refused to admit though it ought to have been admitted. Next, is the contingency where the evidence sought to be produced was not available to the party seeking to produce it notwithstanding the exercise of due diligence by him. The third contingency is the requirement of the Court of appeal for additional evidence so as to enable it to pronounce judgment. Neither of these contingencies is applicable to the present case. Defendants had ample opportunity when the case was before the trial Court to adduce the required evidence. O.XLI, R.27, C.P.C. is not to be taken recourse to merely because a party at the stage of appeal finds that some material could have tilted the decision in its favour has not been produced but should have been.” 6 12. In the instant case as stated above, no application has been made seeking permission of this Court to lead any evidence in addition to what has been led in the proceeding before the learned Tribunal. The requirement of Order 41, Rule 27, C.P.C. having not been complied with, this Court is not inclined to accept the contention taken by learned counsel for the appellant-insurance company that the offending vehicle was not covered under any valid insurance policy during the relevant time of accident on the basis of two affidavits filed before it. 13. On the other hand, the Tribunal taking into consideration the evidence produced before it has categorically held that the offending vehicle was covered by valid insurance policy at the time of accident. 14. At this juncture, it is necessary to quote the finding of the Tribunal on issue No.3. “Issue No.3. During investigation the I.O. had seized the Insurance certificate issued by the O.P. No.2 covering the offending vehicle and the insurance policy was valid upto 28.10.2003 and the driving licence of the driver of the offending vehicle which was valid up to 1.7.2005. Besides, the other documents such as temporary road permit of the vehicle, the original registration certificate of the offending vehicle on production by Biranchi Narayan Aich and Nabaghana Dora and had released the same documents in zima of Biranchi Narayan Aich. The certified copy of the seizure list Ext. 5 and 5/1 and the certified copy of the zimanama Ext.4 and 4/1 speaks for the same. The accident having taken place on 1.5.2003 the insurance policy of the offending vehicle issued by O.P. No.2 and the driving licence of the driver of the offending vehicle 7 were valid at the time of accident. Hence this issue is also answered in favour of the petitioner and against O.P. No.2”. 15. In view of the above, learned Tribunal is fully justified in holding that the offending vehicle at the relevant time of accident was covered under valid Insurance Policy. 16. Issue No.(ii) relates to acceptability of disability certificate issued by the Medical Board. According to Dr. Rath, the disability certificate issued by the Medical Board should not be relied upon as the author of the said certificate has not been examined. 17. It is not in dispute that the disability certificate has been issued by the competent authority i.e. the Medical Board of Jajpur District certifying that the claimant has suffered 45% partial permanent disablement and the same has been marked as Ext.6 without any objection. The apex Court in Raj Kumar vs. Ajay Kumar and another, 2011 (1) T.A.C. 785 (S.C.) held that the certificate issued by the Chief Medical Officer, Ghaziabad on the assessment made by the Medical Board which consisted of an Orthopedic Surgeon ought not have been rejected by the High Court. In the instant case, Ext.6 is the disability certificate which was issued by the Medical Board of Jajpur District consisting of A.D.M.O.(Medical), Jajpur, Orthopedic Specialist of the District Headquarters Hospital, Jajpur and counter-signed by the C.D.M.O., Jajpur. According to the said certificate, the petitioner has 8 suffered partial permanent disability up to 45% due to the traumatic stiffening of the left hip and knee. Since the Medical certificate has been issued by the Medical Board consisting of Specialists in different wings and the same has been exhibited as Ext.6 without objection, the learned Tribunal is perfectly justified in relying upon such certificate. 18. Issue No.(iii) is as to whether the compensation awarded by the Tribunal is just and proper. 19. Learned counsel for respondent No.1 submits that as per the order of the Tribunal the claimant-respondent No.1 owned a truck and his annual income was Rs.72,000/- @ Rs.6,000/- per month. However, in support of his contention, he has failed to adduce any evidence that the income of the claimant was Rs.6,000/- per month. 20. The Apex Court in the case of Laxmi Devi & Ors. Vs. Mohammad Tabbar and Anr., 2008(2) T.A.C. 394 (S.C.), upheld the notional income of the deceased determined by the High Court at Rs.36,000/- per annum against notional income of Rs.15,000/- prescribed in the 2nd Schedule under Section 160-A of the M.V. Act on the ground that the notional income prescribed in the 2nd Schedule of the M.V. Act was in the year 1994 whereas the accident took place in the year 2004 and thereafter in case of non-earning person Rs.36,000/- per annum is reasonable. 9 21. Before the Tribunal, the claimant produced the registration certificate of the vehicle standing in his name. In view of the same, the monthly income of the claimant-respondent No.1, who has filed cross- objection in the present case is taken at Rs.36,000/- per annum i.e. @ Rs.3,000/- per month. 22. However, the learned Tribunal while computing the compensation for the partial permanent disability took into consideration that the petitioner had not suffered any loss of income due to the accident and the fact that the petitioner had not availed of the service of an expert for his treatment by going to the S.C.B. Medical College, he assessed the loss of income @ 10% of the partial permanent disability suffered by the claimant for calculating the quantum of compensation. 23. Dr. A.K. Rath, learned counsel for the appellant submits that considering the nature of injuries sustained by the claimant the learned Tribunal is justified to assess the loss of income of the claimant @ 10% of disability for the purpose of calculation of quantum of compensation. In support of his submission, he relied upon the decision of the apex Court in Raj Kumar (supra). 24. On the other hand, referring to Second Schedule to the M.V.Act, learned counsel appearing for the claimant-respondent No.1 submitted that while computing the compensation, the percentage of loss should be taken 45% which should be equivalent to the partial 10 permanent disability of 45% as certified by the Medical Board of Jajpur District. 25. It is not in dispute that the claimant suffered partial permanent disability up to 45% due to traumatic stiffening of left hip and knee, which are the vital organs of a human body as per disability certificate issued by the Medical Board. The Tribunal in its judgment observed that the claimant filed the petition for compensation u/s. 166 read with Sec. 163-A of the M.V.Act for the injuries sustained by him. However, the apex Court in the case of Raj Kumar (supra) observed that the same permanent disability may result in different percentage of earning capacity in different persons depending upon the nature of injury, profession/occupation or job, age, education and other factors. 26. In the instant case, the claimant-respondent No.1 is a business man owning a truck . As per the disability certificate issued by the Medical Board of Jajpur District, he had suffered permanent partial disability due to traumatic stiffening of hip and knee. Considering the percentage of permanent partial disability, nature of injury and that he is a business man owning a truck, this Court feels that the percentage of loss of earning capacity would not be less than 25%. When multiplier ‘15’ is applied, the amount of compensation comes to Rs.1,35,000/- (rupees one lakh thirty-five thousand) i.e. (25% of Rs.36,000/- x 15). 27. In addition to the amount of compensation, the claimant- respondent No.1 is entitled to Rs.36,770/- towards the medical and 11 other expenses as awarded by the Tribunal. Therefore, the total amount of compensation comes to Rs.1,71,770/- (one lakh seventy-one thousand seven hundred and seventy) only (Rs.1,35,000/- + Rs.36,770/-) 28. In view of the above, the appellant-Insurance Company is directed to pay Rs.1,35,000/- along with 6% interest thereon from the date of filing of the claim petition before the Tribunal till the date of payment within eight weeks from today. 29. On production of receipt in support of payment of the aforesaid compensation before the Registrar (Judicial) of this Court, the statutory deposit of Rs.25,000/- along with interest accrued thereon shall be refunded to the appellant-Insurance Company. 30. In view of the aforesaid observation and direction, the appeal as well as the cross-objection is disposed of. ..…………………….. B.N.Mahapatra, J 12 Orissa High Court, Cuttack Dated 29th April, 2011/ss/skj/ssd