OM PRAKASH Vs. BHAGAT SINGH

JUDGEMENT

(1.) THIS appeal is directed against the award dated 17th March, 2008 of the Motor Accident Claim Tribunal (hereinafter referred to as the Tribunal for short) as passed in claim petition No. 104/2007 filed by the appellant herein whereby he had sought compensation on account of the injuries sustained in the road accident which took place on 10th October, 2003 when he was driving Truck No. KA-05-B-5990 and was struck by another truck bearing registration No. HR-30-2725 being driven by its driver Bhagat Singh, respondent No. 1 herein, in rash and negligent manner. The said truck was stated to be owned by Surender Singh, Respondent No. 2 herein, and was insured with respondent No. 3, the New India Assurance Company Ltd. Vide the impugned award, the Tribunal awarded compensation of Rs.3,05,077/- (inclusive of interim award of Rs.25,000/- passed on 18th March, 2005) with simple interest @9% per annum from the date of filing of the petition i.e. 7th January, 2004 till realization. Respondent No 3 being the insurer was directed to indemnify the appellant/claimant. The compensation was made up of Rs.35,677/- on account of purchase of medicines and payment made for private OPD, Rs.20,000/- on account of conveyance, Rs.25,000/- on account of special diet and Rs.2,24,400/- on account of loss of earning due to disability. The Tribunal has taken overall disability of the appellant/ claimant to the extent of 20% as against the disability of 70% of right lower limb as per the disability certificate. The learned Tribunal applied the multiplier of 17 and arrived at this figure of Rs.2,24,400/-.

(2.) THE appellant has assailed the impugned award claiming enhancement of compensation on various counts.

(3.) THE main challenge to the award was with regard to the extent of disability as assessed by the Tribunal. As per the Tribunal, the disability certificate was produced by the appellant himself while making statement. However, neither the Doctor, who gave the certificate, nor any official of the hospital has been examined to prove the same. Mere production of a copy of disability certificate will not be a proof of extent of disability stated in the certificate and only the Doctor who treated the patient or who examined him medically and assessed the extent disability can prove the certificate after he stood the test of cross examination with reference to the certificate. In any case, the Tribunal noted the disability to be 70% in relation to right lower limb and assessed the functional disability and also earning capacity due to this disability to be 20%. THE appellant suffered amputation below knee up to 8 cm in the right lower limb, but, there is no evidence on record, much less medical evidence led by the appellant to show that he was incapacitated to do any other avocation and earn his livelihood. In the given fact and circumstances of the case it could not be said that the appellant was incapable of doing any activity or avocation because of his disability. In the absence of there being any cogent evidence on record in this regard and taking the disability to the extent of 70% in relation to lower limb, the functional disability in relation to whole body of the appellant was rightly assessed as 20% and so was the percentage of loss of his earning capacity. I do not see any infirmity or perversity in making this assessment of 20% disability in earning capacity of the appellant.