NEW INDIA ASSURANCE CO LTD Vs. MOHD NAVI

JUDGEMENT

(1.) -THIS appeal has been preferred by the Insurance Co. challenging the judgment and order passed by the concerned Motor Accident claims Tribunal dated 4th February, 2008 awarding a compensation of Rs. 2,00,400/- on account of 40% disablement and/or loss of earning capacity of the injured. Out of the total awarded amount of Rs. 2,00,400/- a sum of Rs. 66,000/-is arising out of medical treatment and mental shock and pain. The real dispute was in respect of Rs. 1,34,400/- although belated learned Counsel appearing for the Insurance Company contended before this Court that on account of shock and pain there should be a fixed amount of compensation of Rs. 5,000/- as per the Second Schedule of the Motor Vehicles Act under section 163-A of the Motor Vehicles Act, 1988.

(2.) HOWEVER, the decision of the Tribunal is based on a medical certificate given by the concerned Medical Board headed by Chief Medical Officer fixing disability of 40%. The claimant adduced his evidence about his injury on the head as well as on the leg and ultimately said before this Court that he had to stay in the hospital for 17-20 days due to the injury which was grave in nature particularly on his leg so he cannot be moved properly. He is walking with the help of stick. From the deposition we further find that he was a rickshaw puller.

(3.) IN the appeal the Insurance Company, it has taken a plea that the disability certificate given by the Medical Board is contained disability of 40%. Such disability neither speaks it is partial disablement nor permanent disablement. That apart loss of earning capacity and disablement are altogether different in nature. Doctor should have been called to examine the nature of injury. He relied upon a Supreme Court judgment in A. P. S. R. T. C. v. P. Thirupal Reddy,2005 (12) SCC 189. to establish that the Doctor was examined for the purpose of fixation of liability. He also said on the basis of Supreme Court judgment in National Insurance Co. Ltd. v. Mubasir Ahmed and another,2007 (53) AIC 141 (SC)=2007 (2) SCC 349=2007 (2) TAC 3 (SC ). that loss of earning capacity is not a substitute for percentage of physical disablement. It is one of the factors, which can be taken into account. However the Supreme Court came to a conclusion in the judgment that since no basis was indicated in support of conclusion the same can not be maintained.