^ . ^ ^'' \? '&• >} HIGH COURT OF CHHATT1SGARH AT BILASPUR s^ Sinaie Bench : Hon'ble Shri Dilip Raosaheb Deshmukh. J. SVJisceiaaneous Apoeai (C.l No.48 of 2007 Appeliant (Non-Applicant No.3) The New India Assurance Company Limitsd, Branch Office, Kamthee )ine, Rajnandgaon (C.G.) versus Respondents fAppSicant) 1. (Non-Applicant No.1 ] 2. (Non-Applicant No.2) 3. Saiikram, S/o Aganuram, aged 30 years, R/o Pendrikaia, P.S. & Tah. Khairagarh, District Rajnandgaon (CG) Vishnu Sahu, S/o Jhullu Sahu, aged 34 years, Occupation Driver, R/o Darripara, Raipur Naka Kawardha, Distt. Kawardha (CG) Deepak, S/o Laxminath Gupte, aged 23 years, (Owner), R/o Hataripara, Santoshi Chowk, Kawardha, Distt. Kawardha (CG) Aopeai under Sectlon 173 ofthe IViotor Vehicles Act, 1988 Present : Shri Dashrath Gupta, counsei for the appeiiant/insurer. Shri R.N.Jha. counse! for respondent No.t/daimant. No one appears on behaif of respondents No.2 and 3 though ser/ed. ORAL ORDER (Passed on 17th August, 2007) Heard. /<^ (2) This appeal is directed against the award dated 13-10-2006 passed by Shri N.D.Ekka, Additional IVIotor Accidents Ciaims Tribunal, Khairagarh (henceforth 'the MACT') in Ciaim Case No.24/2005, whereby the MACT has awarded Rs.2,42,000/- to respondent No.l/ciaimant for the permanent disability suffered by him due to the accident. (3) Brief facts are that on 09-08-2005, respondent No.l/claimant was going to his Village Pendri on a cycle. Respondent No.3 drove Sumo vehicie No.CG 09/5003 in a rash and negligent manner and dashed against the cycle of respondent No.l/claimant, wlio sustained fracture In radius and ulna bones of ieft fore arm ahd aiso sustained a serious head injury. The claimant was admitted in Chandulal Chandrakar Memorial Hospital, Bhiiai from 10-08-2005 to 27-08-2005 and incurred heavy expenses in treatment. Operation of the fractured montegra was also performed. The claimant fiied the disability certificate and all the relevant documents reiating to treatment undertaken and expenses incurred by him. Aii these, documents were exhibited by the MACT during statement of the claimant despite a serious objection raised by the insurance company that unless the doctor granting the disabiiity certificate was examined, the disabiiity certificate could not be exhibited. Taking into consideration the minimum wage prevalent under law, the MACT assessed the daiiy income of respondent No.l/claimant at Rs.100/- and taking 25 working days in a month, assessed monthiy income of respondent No.l/claimant at Rs.2,500/-. Takingpermanent disability suffered by \^-^ '(^r respondent No.l/claimant at 35%, the MACT assessed compensation as under: SL No. ~w (ii) (iii) (iv) (V) Heads Loss of earning Expenses towards treatment Special diet during treatment Loss of earning Pain and suffering TOTAL Amount (Rs.) 1,89,000=00 30,000=00 4,000=00 9,000=00 10,000=00 2.42.000=00 ^N8^-- (4) Learned counsel for the appellant/insurer has made a two-fold submission in this appeal. Firstiy, that the MACT ought to have taken the monthly income of respondent No.l/claimant at Rs.1,500/- in view of the admission made by the claimant in para 12 of his testimony that he was earning Rs.40-50 per day on the date of accident. Secondly, it was urged that without giving the appeiiant/insurer an opportunity of cross-examining the expert giving disabiiity certlficate as also the treating Psychologist or Surgeon, the assessment of the compensation awarded by the MACT could not be sustained under law. (5) Shri R.N.Jha, iearned counsel for respondent No.l/ciaimant argued in support ofthe impugned award. (6) Having considered the rival submissions, 1 have perused the record. » l*»^.^-.^y^i' ''-.< ikfFM.;;_, .B;.^: »>^.^a.^..^'-*- ^B.,-s>*^.^.«»w> (7) It is true that the ciaimant has in para 12 of his testimony admitted before the MACT that he was earning Rs.30-35 per day as an agricultural labourer and after he started working atthe petrol pump, the owner of the petrol pump was paying him Rs.40-50 per day as wages. However, it needs to be noticed that the claimant had sufTered a serious head injury due to the accident and had undertaken operation of montegra bone and had deposed that there was a compiete loss of memory due to the accident. The claimant had also fiied a certificate, Ex.P-72 given by the Psychologist, which revealed traces of memory loss due to the accident. The Psychologist, who gave certificate, Ex.P- 72, ought to have been examined by the ciaimant so as to give an opportunity to the insurer to test the genuineness of the document by cross-examining the witness. The testimony of Aganuram Sahu also shows that there was functional imbaiance in the mind of the claimant due to the accident. The MACT, while, determining the daily income of the ciaimant, ought to have considered fhe testimony of the employer Amit Chopra in para 7 giving a detailed description of the functions, which respondent No.l/claimant used to perform atthe petrol pump. (8) The appellant/insurer had raised an objection before the MACT whi!e the disability certificate and other documents were exhibited that the concerned doctor should be examined before exhibiting the documents. A Division Bench of this Court in Rojesh Kumar Kaushik vs. Tej Narayan Singh, Miscellaneous Appeal (C.) No.818/2007 decided on 20-07-2007, has held as under: ^^ "If the appellant really wants support from the opinion of any doctor or board of doctors, the Insurancecompany and the owner of the vehicle, against whom the said opinion wili be used, should be given an opportunity to cross-examine those persons for the purpose of ascertaining the truth of their opinion contained in the certificate; it is preposterous to suggest that by mere producing a certificate showing that a person had become disabled, he can force the insurance Company or the owner of the vehide to pay compensation though the genuineness bf the document is not proved and they are not in a position to cross-examine the person who has allegedly given such opinion." !^ (9) In Rajesh Kumar Kaushik v. Tej Narayan Singh (supra), the Court further held as under: "that a duty is cast on the MACT to ensure that process is issued to the doctor concerned issuing certificate of permanent disability and his attendance secured in the Court. Under the Motor Vehicles Act, 1988, the MACT is under an obligation to award just and reasonable compensation and can not shirk its responsibiiity by taking shelter of the fact that the claimant had falled to examine the doctor issuing the certificate of permanent disability. In most of the cases in Chhattisgarh, the ciaimants are illiterate and poor villagers and sometimes illiterate widows, minor children etc. The Presiding Judge of the MACT in such cases should take pains to see that process is issued to the doctor concerned, his attendance -^, hl^k »^. secured in the Court and the insurer is given opportunity to cross-examine the doctor. The Presiding Judge of the MACT being under an obligation to award just and reasonable compensation should not remain a silent spectator during the proceedings". (10) In view of the law laid down in Rajesh Kumar Kaushik vs. Tej Narayan Singh (supra), the Impugned award is liable to be set aside. In the interest of justice and to give a fair opportunity to the appellant/insurer to test the genuineness of the certificate of permanent disabiiity and the certificate Ex.P-72 issued by the Psychologist by cross-examining the doctor giving such opinion, it is necessary to remand the matter to the MACT, and to give an opportunity to the appellant/insurer to cross-examine such witnesses. (11) In view of the above, the appeal is allowed. The impugned award is set aside and the matter is remitted to the MACT. The MACT shall, after complying with the direction in Rajesh Kumar Kaushik vs. Tej Narayan Singh (supra) quoted in paragraphs 8 and 9, decide expeditiously the quantum of compensation payabie to the claimant under Section 166 ofthe Act, 1988 in accordance with law. Sd/- Dilip Raosaheb Deshmukh Judge Gopai