JAY PRAKASH SHARMA Vs. BAL KISHAN

JUDGEMENT

(1.) THIS is claimants appeal under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No. 79/05 vide award dated 8-2-05.

(2.) PLAINTIFF claims to be a hawker moving around in cycle selling groundnut and thereby earning Rs. 200/- per day he is aged 30 years and it is submitted that on 03-09-04 in the night at about 8. 30 P. M. , when he was going on his cycle towards Malanpur and when reached at place near A one Factory in Malanpur a bus belonging to M. P. S. R. T. C, bearing M. P. 07 F 813 driven by respondent No. 1 dashed against the cycle of the appellant from the back side as a result of the accident appellant suffered injuries on the fibula bone of his left leg he sustained injuries on his head and other parts of the body, initially he was admitted to Gohad Hospital but as his proper treatment could not be given in there, after giving first aid he was referred to J. A. Group of Hospital, Gwalior and thereafter was treated in private nursing home where finally he was treated by one Dr. Prabhat Kaushal, his left leg was operated fractured bone was settled and he was plastered. Inter alia claiming compensation of Rs. 7,80,000/- claim petition was filed. It was the case of the appellant that because of the accident he has suffered permanent disability to the tune of 50% which is proved by medical certificate Exh. P-13 issued by the District Medical Board. Against the aforesaid claim made by the claimant learned tribunal having found no permanent disability to be established granted compensation of Rs. 25,000/- which included the amount spent for medical treatment a sum of Rs. 1,500/- towards loss of salary, Rs. 1000/- towards transport expenses and a sum of Rs. 2000/- for special diet, accordingly compensation of Rs. 29500/- has been granted. Taking me through the statement of P. W. 2 Dr. Tripathi Chairman of the District Medical board who has issued disability certificate Exh. P-13 and referring to the finding recorded Shri Arun Sharma argued that once it is established from the certificate of the Medical Board that permanent disability has resulted. The learned Tribunal committed grave error in rejecting the claim for permanent disability. Placing reliance on a judgment of Full Bench of this Court in the case of Kamal Kumar Vs. Tazuddin and others, 2004 (1) JLJ 298 = 2004 (2) M. P. H. T. 386 (FB) argued that once it is proved that as result of fracture the union of the bone is not settled then it is the case of permanent disability as held by full Bench of this Court and therefore, Shri Arun Sharma argued that in refusing to assess the compensation on the basis of 50% disability suffered as per Exh. P/13, learned Court has committed grave error. Placing reliance on another judgment passed in the case of Managing Director, North East Karnataka Road Trans. Corpn. Vs. T. Prabhakar and others, 2003 ACJ 1420, it was submitted that medical Certificate issued is a public document and therefore, the disability certificate should have been exhibited.

(3.) SHRI Amit Bansal, Counsel for the respondents refuting the aforesaid and submitted that the compensation awarded is reasonable as the Dr. Tripathi is not examined and medical certificate of disability Exh. P-13 is not proved in accordance with law, no case for interference is made out. It is also seen from the records respondents filed cross objection being LA. No. 10306/06 it was taken on record on 23-8-06, however Shri Arun Sharma submits that as the condition necessary with regard to pre-deposit of the amount is not complied with by the respondents, cross objection cannot be accepted, and prays for dismissal of cross objection in view of judgment of a Division Bench of this Court in the case of Abhilasha Bai Vs. Arvind Kumar and others, 2003 ACJ 49.