He fairly admitted that he got reimbursement for
medical treatment from the department and therefore, he has not
produced original medical bills to show his medical expenses which
government reimbursed him. He relied upon certificate issued by
Dr.Neelima Pawade. He identified her signature on the certificate
marked as Exh.79. Thus, injured claimant himself had referred to
medical certificate issued in his favour by Dr.Neelima Pawade and
denied that he lodged exorbitant claim of Rs.2,00,000/ in the claim
petition. His evidence would indicate that the accident had occurred
because of negligence of truck driver and the truck was covered by
insurance policy operating on the date of accident which was insured
by respondent no.5. Under these circumstances, claimant was
required to take voluntary retirement on 2/10/2000 due to the ill health
on account of accident when, in fact, he would have retired in 2004.
The appellant/claimant was in government service working as
Superintendent of the Land Record and earning a sum of Rs.13000 to
14000/ per month at the time of his retirement. Exh.88 would
indicate the approval for his retirement issued by the Deputy Director of
Land Records Amravati Division, Amravati. The medical papers of
General Hospital, Amravati at Exh.78 indicating the nature of injuries
received by the claimant would corroborate the certificate issued by
Dr.Neelima Pawade. Resident Medical Officer, General Hospital,
Amravati also certified that claimant – injured Prakash Mahadeorao
Nirmal was admitted on 15/8/1997 and was treated till his discharge on
28/8/1997 and had suffered head injury as well as eye injury. Under
these circumstances, there was error on the part of the learned
Member of the MACT to ignore the medical papers on the record when
certificates are issued by Resident Medical Officer, General Hospital
Amravati from the office of the Civil Surgeon, Amravati. In my opinion,
such certificate in the nature of official document can be read in
evidence by the Motor Accident Claim Tribunal in such case. Because
evidence is required to be judged upon preponderance of probabilities
and not on the basis of principle of proof beyond reasonable doubt.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.423 OF 2005.
Prakash s/o Mahadeorao Nirmal,
: VERSUS :
Rajesh Ramfer Yadav,
.
CORAM: A.P.BHANGALE, J.
DATED: 16th DECEMBER, 2013.
Citation; 2014(2) ALL M R546 Bombay
1. The appeal is preferred by the injured claimant against
dismissal of the claim, by order dated 12th of April, 2005, by the learned
Member, Motor Accident Claims Tribunal (MACT), Amravati in
M.A.C.P.No.86 of 1998.
2. The facts, briefly stated, are that, the appellant (injured
claimant) was working with Land Records Department at Tiwsa as
Superintendent of Land Record, in August, 1997. Unfortunately, he
suffered injury over his left eye in the motor vehicle accident occurred
on 15th of August, 1997 while he was travelling to Tiwsa in a Jeep
along with one Haribhau Gogate and Chandrashekhar Nistane. It is
the contention of the appellant that in the accident, Jeep driver as well
as two more persons had died on the spot itself while the appellant
suffered injuries and was shifted to Irvin Hospital, Amravati
immediately after the accident. It is the contention of the appellant
that as a result of accident there was 100% loss of vision of his left
eye. The appellant had relied upon medical certificate issued by Dr.
Neelima Pawade who certified 100% left eye visual loss of the
appellant/claimant. It is further contended that the owner as well as
driver of the offending vehicle i.e. truck, which is dashed against Jeep,
had not filed written statement on the record. Only respondent nos. 5
and 6 had contested the claim before the Tribunal. However, the
learned Member of the Tribunal proceeded to dismiss the claim.
Hence, this appeal is preferred.
3. According to the learned Advocate for the appellant, the
claimmant was immediately admitted to Irvin Hospital and he was in
hospital for ten days. Being a government servant, he had claimed
reimbursement for medical treatment and therefore, he is not claiming
any compenstion for medial treatment. According to the learned
Advocate for the claimant, due to the motor vehicle accident, operation
of left eye was advised by an eye specialist. Claimant had also
suffered head injury which required 65 stitches and he was in the
hospital of Dr.Neelima Pawade for three days. He had also received
medical treatment from Dr.Satish Deshmukh – an eye specialist.
4. Learned Member of the Tribunal arrived at the conclusion
that the motor vehicle accident is occurred on 15/8/1997 because of
rash and negligent driving of the truck bearing registration No.MXL
6826 owned by respondent no.2 – Mohd.Rafique. The Jeep bearing
registration No. MH30/8831 was owned by Shioprasad Kachrulal
Laddha, r/o Risod, Distt.Akola. Respondent no.5 – National Insurance
Co.Ltd. disowned the liability to make compensation, as according to it,
the claimant was not immediately hospitalized and that there was no
other injury to the left eye over or around it. According to the learned
Advocate for respondent no.5 there would have been serious external
injuries around left eye but no such injury certificate was on record. It
is also contended that there is no sufficient evidence to believe that the
appellant/claimant suffered injury due to motor vehicle accident
concerned. It is not in dispute that as on the date of accident the
claimant was nearing his retirement and that he had taken voluntary
retirement on the ground of his illhealth due to the accident, but this
version was not accepted by the learned Member of the MACT and
therefore, claim was dismissed.
5. I have considered the evidence led in the claim petition by
the appellant/claimant. At Exh.74, claimant/appellant had stated that
accident occurred on 15/8/1997 at about 7.30 a.m. while he was
travelling by Jeep from Panchavati Amravati to Tiosa along with other
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6
persons. When the Jeep was about 3 or 4 kms. away after Nandgaon,
a truck coming from opposite direction, which was loaded and driven
fast, dashed the jeep and claimant was unconscious on the spot due to
head injury as well as injury to left eye and ratina of left eye was
damaged. After the accident, the appellant was unable to see by left
eye and he was being admitted in Irvin hospital at Amravati and was
remained in the hospital for 8 to 10 days before he was shifted to
Nagpur in the hospital of Dr.Neelima Pawade – an eye specialist
because claimant was advised left eye operation. He had 65 stitches
to his head. According to the claimant, he was earning Rs.12000/ per
month and had yet to serve for seven years in the Land Records
Department but he had voluntarily retired due to health problem arising
out of the accident. Claimant also made reference to police paper,
such as FIR (Exh.75), copy of spot panchanama (Exh.76), copy of
chargesheet (Exh.77), injury report (Exh.78) and medical Certificate
dated 3/2/2004. According to the claimant, he could not produce
original medical bill as he had claimed reimbursement for medical
treatment from the department. Claimant also deposed that accident
had occurred because of negligence of truck driver which was the
judicial finding in companion claim petition Nos.332 of 1998 and 97 of
1998 in which the appellant was not party. In Exh.79, in the claim
petition, it is mentioned that claimant was admitted in hospital of
Dr.Neelima Pawade from 12/2/1998 to 16/3/1998 and treated by her
for 100% left eye vision loss. She had also observed that there was
head and face injuries which claimant had suffered in the accident.
6. Learned Advocate for respondent no.5 – Insurance
Company contended that there was no strict proof of medical certificate
and it cannot be read in evidence. She made reference to Oriental
Insurance Co.Ltd. ..vs.. Parveen and ors. reported in II(2012) ACC
319 to submit that it is basic principle of law of evidence that document
ought to be proved by the best evidence of doctor, who certified the
injury, except in case of public document as contemplated under
Section 77 of the Indian Evidence Act. The learned Advocate has also
contended that disability certificate is not a public document and must
be proved in accordance with law by doctor who issued it certifying the
fact of disability suffered by the claimant. Further, according to the
learned Advocate, such certificate issued by the doctor long after the
occurrence of the accident cannot be believed.
Reference is also made to ruling in the case of Sait Tarajee
Khimchand and ors. ..vs.. Yelamarti Satyam and ors. reported in
AIR 1971 SC 1865 to argue that the mere marking of document as an
exhibit does not dispense with its proof.
The ruling referred to in Sait Tarajee’s case refers to a suit
for recovery of money on the basis of a mortgage bond allegedly
executed by the first defendant and his sons in favour of the plaintiff –
Firm. It was not the case relating to compensation claim for motor
vehicle accident.
According to the learned counsel for respondent no.5 –
Insurance Company, owner was necessary party to the proceeding
and he was not made party in this appeal. According to the learned
Advocate for the appellant, in spite of so many attempts, owner could
not be served while appeal remained pending and therefore, the owner
is answerable to claim though he remained absent in the appeal
proceeding.
7. The motor vehicle Act 1988 is a social welfare legislation
and strict rules of evidence as contemplated under the Evidence Act
1872 need not apply, as evidence available in a claim petition is to be
considered upon preponderance of probabilities and not on the basis of
strict rules of evidence which is required in case of prosecution in a
criminal case to prove offences beyond all reasonable doubt. The
distinction, therefore, has to be borne in mind while considering the
evidence in the claim proceedings in the motor vehicle accident case.
8. In the present claim petition, record would indicate that
evidence of the injured claimant was recorded by the Tribunal and
claimant had described the accident occurred on 15/8/1998 while he
was travelling by Jeep, which met with unfortunate motor vehicle
accident in which three persons had died on the spot, after the jeep
was dashed by the truck coming from opposi te direction. Claimant
also deposed about the head injury which he suffered as a result of the
accident and also injury to his left eye because of which he was unable
to see by his left eye. Claimant also made it clear that he was admitted
in Irvin hosital and remained there for 8 to 10 days before he was
shifted to Nagpur and was under treatment of Dr.Neelima Pawade – an
eye specialist. He had sustained head injury which according to him
required 65 stitches to his head. In the course of deposition, the
claimant was cross examined on behalf of the Insurance Company
(respondent No.5). He admitted, as a fact, that after recovery he was
allowed to join duty. He fairly admitted that he got reimbursement for
medical treatment from the department and therefore, he has not
produced original medical bills to show his medical expenses which
government reimbursed him. He relied upon certificate issued by
Dr.Neelima Pawade. He identified her signature on the certificate
marked as Exh.79. Thus, injured claimant himself had referred to
medical certificate issued in his favour by Dr.Neelima Pawade and
denied that he lodged exorbitant claim of Rs.2,00,000/ in the claim
petition. His evidence would indicate that the accident had occurred
because of negligence of truck driver and the truck was covered by
insurance policy operating on the date of accident which was insured
by respondent no.5. Under these circumstances, claimant was
required to take voluntary retirement on 2/10/2000 due to the ill health
on account of accident when, in fact, he would have retired in 2004.
The appellant/claimant was in government service working as
Superintendent of the Land Record and earning a sum of Rs.13000 to
14000/ per month at the time of his retirement. Exh.88 would
indicate the approval for his retirement issued by the Deputy Director of
Land Records Amravati Division, Amravati. The medical papers of
General Hospital, Amravati at Exh.78 indicating the nature of injuries
received by the claimant would corroborate the certificate issued by
Dr.Neelima Pawade. Resident Medical Officer, General Hospital,
Amravati also certified that claimant – injured Prakash Mahadeorao
Nirmal was admitted on 15/8/1997 and was treated till his discharge on
28/8/1997 and had suffered head injury as well as eye injury. Under
these circumstances, there was error on the part of the learned
Member of the MACT to ignore the medical papers on the record when
certificates are issued by Resident Medical Officer, General Hospital
Amravati from the office of the Civil Surgeon, Amravati. In my opinion,
such certificate in the nature of official document can be read in
evidence by the Motor Accident Claim Tribunal in such case. Because
evidence is required to be judged upon preponderance of probabilities
and not on the basis of principle of proof beyond reasonable doubt.
9. The learned Advocate for the respondent No.5 – Insurance
Company, at this stage submitted that proceedings may be remanded
to Motor Accident Claims Tribunal. Considering that the proceeding is
pending since 1998, as also the nature of evidence on the basis of
which the claim was sought to be proved, submission on behalf of the
Insurance Company is unacceptable. It would not help insurance
Company to further cause delay in the proceedings by avoiding its
liability to pay compensation. The compensation claim was in the sum
of Rs.2,00,000/ only by the claimant, as according to him, medical bills
were submitted to government for reimbursement and therefore no
original medical bills could be produced on record and compensation
for medical treatment was not claimed. Such explanation ought to
have been accepted by the learned Member of the Tribunal
unfortunately it was not accepted while rejecting the claim. For all
these reasons, therefore, the impugned judgment and order is
unsustainable and it is required to be set aside.
10. The appeal is allowed. The claim as against respondent
nos.1,2 and 5 is allowed.
Respondent nos.1,2 and 5 shall be jointly and severally
liable to pay sum of Rs.2,00,000/ to the claimantappellant with
simple interest at the rate of 6% per annum from the date of petition till
its realization.
JUDGE.
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