Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.21206 of 2011 ====================================================== 1. Chandra Shekhar Chouhan S/O Late Ram Nath Chouhan Resident Of Village/Mohalla- Dighi (Katihar), P.S & District- Katihar. Versus 1. Md.Habibullah S/O Safadar Ali Residing At Mohalla- Daheriya, P.S & District- Katihar. 2. Branch Manager, New India Assurance Company, At- Vishwanath Service Station, N.H.-31, Purnea, District- Purnea. .... .... Petitioner .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. P.K. Jaipuriyar For the Respondents : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 23-09-2013 Heard learned counsel for the petitioner. 2. An order dated 23.08.2011 passed in M.V.C. Case No. 11 of 91 by learned Additional Sessions Judge cum F.T.C.-I, Katihar rejecting the prayer of the petitioner for constituting a Medical Board of doctors so as to determine the percentage of disability and effect of such disablement of the limb on the functioning of entire body, is under challenge in the present application under Article 227 of the Constitution of India. 3. From the impugned order and averments made in the present application, it appears that petitioner suffered a road accident with the tractor trailer on 17.06.1991 upon the public road in Katihar. The petitioner is said to have received serious
Legal Reasoning
Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 2/7 multiple injuries on the body. He was treated at Sadar Hospital, Katihar. X-ray reports and other examinations found multiple fracture of tibia bone of the left leg of the petitioner. 4. The petitioner filed Motor Vehicle Claim Accident Case before Motor Accident Claim Tribunal, Katihar (‘hereinafter referred to as the Tribunal’) vide M.V.C. Case No. 11/91. It seems that certain witnesses were examined by the petitioner in support of his claim. The respondent No.1, who is owner of the tractor, got himself examined. The petitioner filed an application on 26.07.2011 before the Tribunal seeking a direction for his examination by the Medical Board to determine his disability as, according to him, such report was essential for deciding the quantum of compensation. 5. From the impugned order it appears that, in course of their evidence, the petitioner and his father did not say that the petitioner suffered any disability on account of the said accident after treatment of the injury. The Tribunal opined that as the petitioner did not suffer any disability, after treatment of injury, it would be needless exercise to have got him examined by a Medical Board and, accordingly, rejected the application.
Legal Reasoning
6. Mr. P. K. Jaipuryar, learned counsel appearing on behalf of the petitioner, with reference to several judgments of the Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 3/7 High Courts and Supreme Court has contended that the court below, in the facts and circumstances of the case, was essentially required to send the petitioner for his examination so as to assess the degree of his disability for determining just compensation. He submits that the Tribunal misdirected itself while interpreting the evidence of this petitioner and his father and failed to realize that after insertion of Section 163-A of the Motor Vehicles Act, compensation is payable if the injury/ disability is non fatal. He has relied upon a Supreme Court judgement reported in 2011(2) PLJR SC (1) (Raj Kumar V. Ajay Kumar) so as to contend that the Tribunal could not be silent spectator when medical evidence is tendered in regard to injuries and their effect, in particular the extent of permanent disability. He has contended, with reference to the said judgement, that the Tribunal failed to function as an active explorer instead of neutral umpire in a civil suit. 7. Learned counsel for the petitioner has contended that for the purpose of determination of compensation under section 163-A of Motor Vehicles Act, a Medical Report as regards the degree of disability ought to have been called for by the Tribunal. as follows:- 8. Section 163-A of Motor Vehicles Act, 1988 reads Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 4/7 [163-A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation.- For the purpose of this sub-section, “permanent disability” shall have the same meaning and extent as in the Workmen’s Compensation Act, 1923. (2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule”.] 9. From bare reading of the said provision, it will appear that it refers to liability of payment by owner of the motor vehicle or the authorized insurer in case of death or permanent disablement due to accident arising out of the use of the motor vehicle. 10. This is to be noted, as has been mentioned above, that in course of evidence neither the petitioner nor his father stated that petitioner suffered any permanent disablement Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 5/7 after recuperating. The Supreme Court in the case of Raj Kumar V. Ajay Kumar (supra), on which reliance has been placed by learned counsel for the petitioner, has dealt, in detail, the manner in which a Tribunal is required to assess the extent of disability of a person, who received injuries in a motor vehicle accident. The Supreme Court has dealt with the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability. The Supreme Court in paragraph 9 of the judgement held that the Tribunal has to first decide whether there is any permanent disability and if so, the extent of such permanent disability. For this, as per the Apex Court, the Tribunal should consider and decide with reference to evidence: (i) whether disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement, (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. The Supreme Court, thereafter, has held as follows:- (excerpts from paragraph 9) “If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 6/7 concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, to determine whether such permanent disability has affected or will affect his earning capacity”. it has 11. Evidently, on the basis of evidence adduced in course of proceedings before the Tribunal, the Tribunal came to a conclusion that there is no permanent disability. In view of this, after having reached to this conclusion, in view of the judgement of the Apex Court in the case noted above, the Tribunal was not required to proceed further to determine the percentage of disability. 12. This is to be kept in mind that the present proceeding is under supervisory jurisdiction of this court under Article 227 of the Constitution of India. This court would, therefore, refrain from commenting upon the correctness or otherwise of the impugned order to the extent the Tribunal came to a conclusion that the petitioner did not suffer any disability. These are matters of evidence and the petitioner can have the liberty to raise the plea at any stage including at the stage of appeal under section 173 of the Motor Vehicles Act, 1988. 13. While exercising power under Article 227 of the Constitution of India, it has also to be kept in mind that this Patna High Court CWJC No.21206 of 2011 (4) dt.23-09-2013 7/7 court can interfere with the orders passed by subordinate courts only if there has been patent perversity in the orders of the Tribunal. This court, in exercise of supervisory jurisdiction, will not convert itself into a court of appeal. 14. In view of above, I do not find any reason to interfere with the impugned order. The order, even if presumed to be erroneous, cannot be said to be incapable of correction at subsequent stage of appeal. The petitioner shall have the liberty to raise the points, as taken in the present application, as dismissal of the present application cannot be treated as bar against raising the same issue at appropriate stage. This application is, accordingly, dismissed with the observation, as aforesaid. (Chakradhari Sharan Singh, J) BKS/-