Union of India, Department of Post & Telegraph v. Ravindra Kumar Mishra

Ravindra Kumar Mishra, .aged about 40 years, S/o Late shri Pt. Prandhan Mishra. Smt. Beena Mishra, aged about 32 Years,W/o Ravindra Kumar Mishra. Both R/o Qr. No. 2C, street no.37, Sector 1, Bhilai Nagar Tahsil and distt. Durg (C.G.) Present Address: 25, Vidya Vihar, West Nehru Nagar, Bhilai, Distt. Durg (C.G.). Misc. Appeal u/s 173 ofM.V. Act, 1988. 1 Appeal by AppeUant owuer 2. Respondent no. 1 awarded '37,750 plus 9 % since 3/4/1982. 3. Respondent no.2's claim was rejected.

4. The appellant deposited Rs.25000/- JA- / HIGH COURT OF CmiA'ITISGASH. BJLASPUH ,A. No. 786/2003 Ravindra Kumar Mishra and anr Union.oflndia ,* A la i^^ a Union of India Ravindra Kumar Mishra and am' Post for 1 8- -9-2009 Sd/- N.K. Agrawal Judge ^ 'UR AppUcaats

1. Raviiidra Kumar Mishra, about 40 years, S/o Late Shri Pandit Praiidhan Mishra Smt. Bina Mishra, aged about 32 years, W/o Ravindra Kumar Mishra, Both R/o Quarter No. 2-C, Street No. 37, Sector - I, Bhilai Nagar, TahsU and Distt. Durg (CO) Present address 25- Vidya Viliar, Nehru Nagar (West), Bhilai, Distt. D-arg (CG) l^TJ^r1 fl^ 1 Union of India, Department of Post and Telegraph, Through Po.st Master Oeneral, M.P. Curle, address- Present Superintendent of Post Office, Raipur, Division Raipur (CG) Thrfiu &TLJ- lainiant Unlon of India, Depai'tm.ent. of Post and Telegraph, Through Post Majster Generai, M.P. Ctrcle, Bhopal (M.P.) Present address- Through Senior Supdt. of Post Office, Raipur, Division, Raipur (CG) Ravindra Kumar Mishra, about 40 years, S/o Late Shri Paiidit Prandhaii Mishra Smt. Bina Mishra, aged about 32 years, W/o Ra^dndra Kiimar Mislira, Both R/o Quarter No. 2-C, Street No. 37, Sector - I, Btulai Nagar, -Tahsil and Distt. Durg (CG} Present address 25- Vidya Vihar, West Nehru Nagar, BlTilai, Distt. Durg(CG) ' Sushri Shai'miia Singhai, Asstt. Solicitor General, for the Union of India. Shi'i Sasyay S. Agravi/-al, Advocate, for the Claimants. ^^"^^SS^^S^ ^.^-r.-.-^.iatiBfliiiSi.wii L. iWilCSSSSSESS'iis^wSi^ies HOWBLB JUSTICB N.K. AGARWAL { ^-9-2009) M.A. No. 786/2003 and M.A. No. 826/2003 ai'e bein^ disposed of by this cosiiaon order as botii these appeals arise out ofthe same accident. M.A. No. 786/2003 is an appeal preferred by fhe compensation enhaacement claiinants seeking

3. against fhe award dated 22-5-2003 passed by the Motor Accident Claiins Tribrmal, Raipur in Claim Case No. 11/2003, whereby and whereunder leanied Tribiuial has passed an award agaiast fhe respondent av,7ardui| to the Claiiaants Rs. 33,750/- wifh mterest @ 9% per annum froin fhe date of application i.e. 3-4-1982. M.A. \> No. 826/2003 is an appeal preferred by fhe i^spondent / Union of India for setting aside the above award. Brief facts of fhe case, as per the record of fhe Tribunal, are fhat applicants filed an application under Sectioii 110-A of Motor Vehicles Act, on fhe grouad that on 1-2- 1981 at about 3.45 p.m. claiinants along with fheii- chlldren were going from. BhUainagai' to Raipur on a "Rajdoot" M'otor Cycle bearing registration No. MFT 3955. Near viUage Tatiband, Raipur a laotor vehicle bearing registration No. CPR 8394 being driven by Dular Ram (since deceased) came from behind and dashed the said motor cycle, as a result of which tfae claimants fell down on fhe road and became i.inconsaous. Their children.'also received simple injuries. The matter was reported to Police Station Azad Chowk, Raipur. The claimants claimed Rs. 90,77.5/- as coiapensation for the injuries sustained by fhem ia fhe accident. A Vide order dated 11-4-1983, fhe claiin. petition was dismissed by the Tribuiial as time barred. A^iost that, the claimants prefeired Misc. First Appeal No. 257/8.38.3. n^ Vide Judgment dated 12-3-2003, fhe Single Bench of this Court allowed fhe appeal and remanded back tiie claim. petition to fhe Clatms Tribunal with a direction that fhe Tribunal shall decide fhe claiiu appUcation as early as possible preferably withtn a period of 4 moiiths. The claknsjits am.ended their clatm. petition and clamied Rs. 2,79,375/- as injuries compensation for sustained by fhem in fhe accidei'it The Union of India contested the claim and denied its liability to pay an;/ compensation to the claimants. Both the parties led evidence. .' b, Leamed Tribunal on a close scrutiny of fhe evidence adduced by fhe parties and on appreciatiaa of the luaterial placed on record, passed fhe a-ivard of Rs. 33,750/- along wifh interest at fhe rate of 9% per armLim &om the date of application against the Union of India. Being aggrieved by the said award, the Union of India prefeiTed M.A. No. bein^ dissatisfied with tlie quantum of award, fhe claimaats seekin^ No. preferred M.A. eiihaiicement of coinpensation. Sushri Shamiila Siaghai, learned Asstt. Solicitor General, appearing for the Union of India would submit that fhe driver of the oSendtng vehicle was not uiider their employnient; fhe factum of accident has not been proved; the oSending vehicle did not belong to the Post Master Oeneral, M.P. Cu-cle, Bhopal; the Post Master General, M.P. Circle, Bhopal has not been arrayed as party who is the necessaiy party and tlierefore, learned Tnbtinal has eiTed in awarding fhe compensation against the Union of India. •-1-, Per contra, Shri Sanjay S. Agrawal, leamed counsel appearing for fhe Claimants would submit. fhat learned Tribunal held liable the Union of India to pay fhe compensation to fhe claimaats only after recordiag a delinite fiiiding in this regard which is based on cogent legal evidence. He woiild further submit (hat claiinaats sustained grievous injuries resulted ia permanent disability, but leanied Tribunal has erred in awarding low compensation and the saEie deserves to be enhanced. He would further submit fhat nothing has been awarded to fhe clatmant Smt. Bina Mishra for fhe injuries sustained by her in the said aceident. I have heard leamed counsel for fhe'parties and • ',. perused fhe record as also fhe iiapugned award.

10. A careful reading of written statement filed by the Union of India and also the ground taken ia the tnstant appeal filed by it would reveal fhat nowhere it has been stated that fhe said vehicle did not belong to it. On the contraiy, in the ground (D) taken in appeal, it has been stated that tlie ofiending vehicle belonged to Post Master General, Bhopal, Bhopal Circle (M.P.). What is under assail is fhat tfae Post Master General, Bhopal Circle (M.P.) has not been iinpleaded as a party who is also a necessan' party in fhe present matter. The v/itness exaiained by fhe Union of India (C. Aharwal, NAW 1), categorically admitted in pai'a 4 of his statement fhat as per the R.T.O.,the offending vehicle is registered ia fhe iiasid of Post Master General, M.P. Circle, Bhopal. It was furtfaer stated by fhe said, witness that the copy of the same has been obtained hut fhe same has not been Sled in the claim case. tn view of tlie above, aTgug»,ent advanced by leamed Asstt. Solicitor General that Post Master General, M.P. Ctrcle Bhopal is not fhe owner of the said vehicle, has no merit.

11. T'-The next argument advaaced by fhe Sushri Sharmila Suighai with reeard to non-involvement of the vehicle in the said accident also has no merit. It appears from the evidence avaUable OB record and tn particiilaT Ex. P-9 that fhe driver of vehicle No. CPR 8394 has adm.itted before the Court of learned Chief Judicial Magistrate in case No. 1515/81 Uiat he was driving the aforesaid vehicle rashly and negligently and on fhe basis of such adm.ission, he has been convicted and punished with fine. This is an admission in terras of Section 18 of fhe Evidence Act, 1972 and was relevant as a^amst the driver of fhe vehicle under Section 21 of the'said Act. This admission was also relevant for fhe fact that tfae said accident occuiTed between fhe vehicle bearins registration No. CPR 8394 and Motorcycle bearing reg.sta-ation No. MPT 3955 and tn the said accident, fhe claiEnants sustataed injuries. A division bench of fhis -v- Com't m case of Dhananjay Prasad Suryavaashi Rajendra Sharma and others reported m 2005 LT $CG) 90 has held that conviGtion tn a criminal court admissible ui civil proceediags as prinia facie evidence of negligence. Besides tfais, leamed Tribunal has passed the award after analyzuig fhe evidence adduced by fhe parties. In -view of tlie discussion as aforesaid, no fault can be found in'tlie finding recorded by leamed Tribunal wifh regard to happening of fhe accident wifh fhe vehicle No. CPR 8394. 1°1c^. So far as fhe question whefher or not, the driver Dular Ram (since deceased) who was driving the vehicle at fhe tiiue of accident was under employment of Post Master •General, M.P. Cu'cle, Bhopal, is concemed, once it is *' R^i.^.. f ^E- that the said accident occurred bv fhe vehicle owned by fhe department of Post Master General M.P. Circle, Bhopal and was bein.g driven by driver Dular Ram., then rt was tncumbent upon the department to produce cogent docunientary as weU as oral evidence so as to establish whether or not fhe said Dular Ram was iii their employment and if not, in what circuin.stances, he caiae in possession of fhe said vehicle at the ttme of aecident. Having failed to establish tiie said fact by placiag the departaiental record ui fhis regard, it cannot be said fhat. the said cii'lver was not in fhetr employment fhe contention put fortfa"' by leamed Asstt. Solicitor General in this regard also has no iiierit. tlierefore, and,

14. In view of fhe above, ia fhe considered optnion of this Court, leanied Tribunal has correctly passed fhe award igainst the depaitment aad in favour of fhe clatmants. -&•' .0. So far as fhe question whether or not, the claimants are entiUed for any eiihaacement of com.pensation is concemed, the claimants have not exaiuined any treating doctor. The claioiants have exaiuined one Dr. Dr. D. Jha on 19-5-2003, who stated fhat on 21-11-96 fhe claiinant Ravindia. Mishra caiae to hiai coniplaiuing pus forraation in his left thigh and at fhat tim.e, his knee m.oment was restricted due to sorae dead piece of bone in the thigh. As per him, the said tnjmy was 8 to 10 years old, meamng thereby, after flie date of accident. But fhe dpctor has not ppined anyfhing wifli regard to naUire ofmjm-ies sustaiaed by fhe claimant in the said accident. The claimants.further f^iled to establish any casual connection between the injuries sustained ui tfae said accident and the injuries on' which optnion was sought tiy,hiin frQia Dr. D. Jha. Tiiiia-l :l^i'ti t^

16. FOT fhe reasons best known fhe claunants, the doctor who treated the applicants was not examined before the Tribunal to establish fhe natiire of tfae tnjuries said to have been sustained by fhe claimants in the motor accident and the fact that fhose tnjuries resiilted in aay permaaent disability.

17. The question whether the medical certi&cate produced by the claimants before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation caiae up for considfcration before the Apex Com't in the case of A.P. SRTC v. 'P. Thirupa! Reddy, reported in. ^2005) 13 SCC 189, wherein it was observed in para 6 as under : gross_ error "6. After hearing learned counsel respondent-claimant who niade an attempt support the order of the High Court, we find fhat there was no justification for the High Court to rety on the disabflity certificate issued by Dr. Sudhakar Reddy and enhance the coiapensation by treattns fhe uijui5r as permaaent disability to be 45 per cent. The High Court _ coiumitted overiooking the fact fhat Dr. Sudhakar Reddv's medical certificate was reiected bv fhe Tribunal for non-examination of that doctor. The Tribunal has determined the physical disabilitv at 15 uer cent on the basis of the deposition of Dr. K.M. Mitra aad awarded a iust and fair coinpensation. The High Court erred m distiirbing fhe same and enhancuig the conipensation. Consequently, we aUow this appeal, set aside the impugned order and restore fhe award of the Claims Tribunal. The respondent- is allowed to witfadraw fhe ainoiint of claimant compensation awarded by.tfae Tribi.mal, tfit has not already been wifhdrawn."

8. The Apex Coi-irt in a reeent dictum in Uie case of Rajesh reported m (2008) 7 SCC 305, reiterated the saiiie vlew with the.fonowu'ig.observations in para 11 : " 11. The certfc&cate in question in this cate was is not known as to It obtained after two vears. ]31irf>ii-"i]F"qa':-W o admissible whefher fhe Civil Surgeon of fhe hospital ti'eatecl fhe appellant. On what basis, such a certificate was issued two years after fhe accident took place is not known. The author of the said certtficate had not been examined. Unless fhe aythor_of fhe certificate it was not exainmed himsetf, the disability at 60% was evidence. Wheftier calculated on the basis of the provisions of the Workmen's Compensation Act or ofhenvise is not known. It is also not kaown as to whefher he was competent to issue such a certificate. K even does not. appear fhat. the contentions raised before iis had eifher been raised before the Tribunal or the High Court. The Tribunal as also the Hi^i Coitrt, therefore, proceeded on the materials brought on record by tfae parties. In absence of any contention having been raised tn regard to the applicability of in our fhe Workmen's Com.pensation Act which, opinion, ex facie has no appUcation, the saiae, in our opinion, cannot be permitted to be ^aised for fhefirst trme." .9. In view of the above dicta of the Apex Court in .ȣ'f v. P. Thirupal Reddy (Supra) (Supra), produced before exam.u'iation of fhe Doctor in tliis regard is neither papers, in fhe absence of fhe Tribunal certificates injury admissible in evidence nor caa be taken iiito consideration as substantive evidence for assessment of fhe compensation in the case. 20, Leamed Tribunal after taMng into consideration everv' aspect of the matter awarded the compensation which cannot be said to be inadequate.

21. For the foregoing reasons, I do not flnd any scope for enhanceinent of the compensation awarded by tfae

22. 23, Tribunal. : In fhe result, bofh the appeals are dism.issed. In the facts and circumstaaces of the case, there shall be no order as to costs. —^/.^'' i -•' \:. ••"" ,. . Sd/- N.K.Agrawal Judge