Ashok Kumar Tiwari v. Mahadeo Yadav and others) by which compensation of Rs

Appellant :- Ashok Kumar Tiwari Respondent :- Mahadeo Yadav And Others Counsel for Appellant :- Anand Kr Srivastava Counsel for Respondent :- Prabhat Kumar Singh,Ajeet Kumar Singh,Lal Dhari Rajbhar,Radhey Shyam,S.M. Mishra,Vineet Kumar Yadav Hon'ble Vipin Chandra Dixit,J. Heard Sri Anand Kumar Srivastava, learned counsel for the appellant and Sri Radhey Shyam, learned counsel appearing on behalf of respondent no. 3-National Insurance Company, Sri Akhilesh Kumar Singh, Advocate holding brief of Sri S.M.Mishra, learned counsel for respondent no. 4-U.P.S.R.T.C. No one is present on behalf of respondent nos. 1 and 2 who are owner and driver of Swaraj Mazada. This first appeal from order has been filed under Section 173 of Motor Vehicle Act, 1988 on behalf of the claimant-appellant for enhancement of compensation against the judgment and award dated 27.11.2006 passed by Additional District Judge, Court No. 9/Motor Accident Claims Tribunal, Azamgarh in M.A.C.P. No. 197 of 1998 (Ashok Kumar Tiwari vs. Mahadeo Yadav and others) by which compensation of Rs. 44,664/- along-with 6% interest has been awarded to the claimant-appellant on account of injuries received by him in an accident occurred on 20.04.1998. It is submitted by learned counsel for the appellant that claimant-appellant had received grievous injuries in an accident occurred on 20.04.1998 and has become permanent disable on account of injuries received by him. It is further submitted that as per the disability certificate issued by C.M.O., Azamgarh discloses the disability of 65% but the Claims Tribunal had disbelieved the disability certificate merely on the ground that doctor who issued the disability certificate has not proved it before the Court. It is further submitted that claimant was engaged in tehsil Lalganj and was getting salary of Rs. 3701/-p.m. The Claims Tribunal had not awarded any amount for loss of income and only Rs. 5,000/- has been awarded for pain and suffering, Rs. 10,000/-for travelling allowance and Rs. 5,000/- for rich diet, Rs. 24,664.25/- for medical expenses. No other ground has been pressed by learned counsel for the appellant. On the other hand, learned counsel appearing on behalf for respondent-Insurance Company has submitted that the claimant-appellant has failed to prove his employment as well as wages. In absence of any evidence regarding employment as well as wages, the Claims Tribunal has rightly refused to award any compensation in terms of loss of income. It is further submitted that the claimant- appellant had also failed to prove his disability as well as his loss of income. The Claims Tribunal after considering the entire evidence has awarded a just compensation in favour of claimant and no ground of enhancement is made out. Considered the submissions of the learned counsel for the parties and perused the record. It was the case of the claimant that his age was 35 years at the time of accident and he was working in tehsil Lalganj and was getting salary of Rs. 6701/- p.m. It is further submitted that he had also earned Rs. 3,000/-p.m from medical profession but on account of injuries received in road accident he has become permanent disable to the extent of 65% and is unable to earn. The claimant has also produced P.W.-3, Sri Prakash Prajapati in evidence to prove his employment and salary. The Claims Tribunal while deciding issue no. 5 has recorded the finding that the claimant had failed to prove his employment and from the evidence, it appears that he was temporarily engaged in tehsil Lalganj and his employment was not in permanent nature. The accident was occurred in the year 1998, the notional income of the claimant injured is accepted as Rs. 15,000/- p.a, in absence of any authentic evidence in respect of income. So far as disability is concerned, as per disability certificate issued by C.M.O, Azamgarh, there was 65% disability to the claimant. The disability certificate was not challenged by the Insurance Company by producing any evidence in rebuttal. The Claims Tribunal has erred in disbelieving the disability certificate issued by Chief Medical Officer, merely on the ground that it was not proved. The law has been settled by Division Bench of this Court in F.A.F.O No. 2871 of 2008 (The New India Assurance Co. Ltd. Vs. Smt Kuntesh and Others) decided on 08.12.2017 that disability certificate issued by C.M.O. is a public document and is not required to be proved. The relevant paragraph is quoted herein below: "So far as the contention of the counsel for the appellant that the disability certificate was not proved by the claimant, we may record that the Tribunal has relied upon the judgement of this Court in the case of Oriental Insurance Company (Supra) while holding that the certificate issued by the Chief Medical Officer is a public document and is not required to be proved. We find that the Tribunal has rightly held 75% disability suffered by claimant on the basis of disability certificate. Since the nature of injuries suffered by the claimant has not been disputed by the appellant, and further it is also established from the record that the claimant had to engage a helper/nurse to do day to day routine work, and therefore, in these circumstances the Tribunal was justified in holding the loss of earning capacity of the claimant to be 75%. " The disability certificate issued by C.M.O. discloses disability of claimant as 65% and as such the functional disability of claimant is accepted as 40%. The claimant- appellant is also entitled for 40% future prospects in view of judgment of Hon'ble Apex Court in the case of Syed Sadiq Vs. Divisional Manger, United India Ins. Co., 2014 0 Supreme(SC) 34. The multiplier of 16 is applicable, as the age of the claimant was 35 years at the time of accident. In view of above discussion, the compensation awarded by the Claims Tribunal is reassessed as below:- 1) Annual income = Rs. 15,000/- 3) Future prospects (40%) = Rs.6,000/- 4) Total annual income = Rs.15,000/- + Rs.6,000/- =Rs.21,000/- 5) Loss of earning capacity (40%) : Rs. 8,400/- 6) Multiplier applicable : (16) = Rs. 8,400/- x 16 = Rs. 1,34,400/- 7) Loss of future income : Rs. 1,34,400/- 8) Medical expenses : Rs. 24,664/- 9) Pain and suffering : Rs. 5,000/- 10)Travelling allowance: Rs 10,000/- 11)Rich diet: Rs. 5,000/- Total : Rs. 1,34,400/- + Rs. 24,664/- + Rs. 5,000/- + Rs. 10,000/- + Rs. 5,000/- = Rs. 1,79,064/- In view of aforesaid discussion, the first appeal from order filed by claimant is hereby partly allowed and compensation awarded by the Claims Tribunal is enhanced from Rs.44,664/- to Rs.1,79,064/-. The claimant-appellant is also entitled for 6% interest on the enhanced amount from the date of judgment and award of Claims Tribunal i.e. 27.11.2006. The respondent-Insurance Company is directed to deposit the enhanced amount alongwith interest, within two months from today before the concerned Motor Accident Claims Tribunal. The claimant is entitled to withdraw the entire deposited amount without furnishing any surety. No order as to costs. Order Date :- 16.5.2025 PS POOJA SHARMA High Court of Judicature at Allahabad

Appellant :- Ashok Kumar Tiwari Respondent :- Mahadeo Yadav And Others Counsel for Appellant :- Anand Kr Srivastava Counsel for Respondent :- Prabhat Kumar Singh,Ajeet Kumar Singh,Lal Dhari Rajbhar,Radhey Shyam,S.M. Mishra,Vineet Kumar Yadav Hon'ble Vipin Chandra Dixit,J. Heard Sri Anand Kumar Srivastava, learned counsel for the appellant and Sri Radhey Shyam, learned counsel appearing on behalf of respondent no. 3-National Insurance Company, Sri Akhilesh Kumar Singh, Advocate holding brief of Sri S.M.Mishra, learned counsel for respondent no. 4-U.P.S.R.T.C. No one is present on behalf of respondent nos. 1 and 2 who are owner and driver of Swaraj Mazada. This first appeal from order has been filed under Section 173 of Motor Vehicle Act, 1988 on behalf of the claimant-appellant for enhancement of compensation against the judgment and award dated 27.11.2006 passed by Additional District Judge, Court No. 9/Motor Accident Claims Tribunal, Azamgarh in M.A.C.P. No. 197 of 1998 (Ashok Kumar Tiwari vs. Mahadeo Yadav and others) by which compensation of Rs. 44,664/- along-with 6% interest has been awarded to the claimant-appellant on account of injuries received by him in an accident occurred on 20.04.1998. It is submitted by learned counsel for the appellant that claimant-appellant had received grievous injuries in an accident occurred on 20.04.1998 and has become permanent disable on account of injuries received by him. It is further submitted that as per the disability certificate issued by C.M.O., Azamgarh discloses the disability of 65% but the Claims Tribunal had disbelieved the disability certificate merely on the ground that doctor who issued the disability certificate has not proved it before the Court. It is further submitted that claimant was engaged in tehsil Lalganj and was getting salary of Rs. 3701/-p.m. The Claims Tribunal had not awarded any amount for loss of income and only Rs. 5,000/- has been awarded for pain and suffering, Rs. 10,000/-for travelling allowance and Rs. 5,000/- for rich diet, Rs. 24,664.25/- for medical expenses. No other ground has been pressed by learned counsel for the appellant. On the other hand, learned counsel appearing on behalf for respondent-Insurance Company has submitted that the claimant-appellant has failed to prove his employment as well as wages. In absence of any evidence regarding employment as well as wages, the Claims Tribunal has rightly refused to award any compensation in terms of loss of income. It is further submitted that the claimant- appellant had also failed to prove his disability as well as his loss of income. The Claims Tribunal after considering the entire evidence has awarded a just compensation in favour of claimant and no ground of enhancement is made out. Considered the submissions of the learned counsel for the parties and perused the record. It was the case of the claimant that his age was 35 years at the time of accident and he was working in tehsil Lalganj and was getting salary of Rs. 6701/- p.m. It is further submitted that he had also earned Rs. 3,000/-p.m from medical profession but on account of injuries received in road accident he has become permanent disable to the extent of 65% and is unable to earn. The claimant has also produced P.W.-3, Sri Prakash Prajapati in evidence to prove his employment and salary. The Claims Tribunal while deciding issue no. 5 has recorded the finding that the claimant had failed to prove his employment and from the evidence, it appears that he was temporarily engaged in tehsil Lalganj and his employment was not in permanent nature. The accident was occurred in the year 1998, the notional income of the claimant injured is accepted as Rs. 15,000/- p.a, in absence of any authentic evidence in respect of income. So far as disability is concerned, as per disability certificate issued by C.M.O, Azamgarh, there was 65% disability to the claimant. The disability certificate was not challenged by the Insurance Company by producing any evidence in rebuttal. The Claims Tribunal has erred in disbelieving the disability certificate issued by Chief Medical Officer, merely on the ground that it was not proved. The law has been settled by Division Bench of this Court in F.A.F.O No. 2871 of 2008 (The New India Assurance Co. Ltd. Vs. Smt Kuntesh and Others) decided on 08.12.2017 that disability certificate issued by C.M.O. is a public document and is not required to be proved. The relevant paragraph is quoted herein below: "So far as the contention of the counsel for the appellant that the disability certificate was not proved by the claimant, we may record that the Tribunal has relied upon the judgement of this Court in the case of Oriental Insurance Company (Supra) while holding that the certificate issued by the Chief Medical Officer is a public document and is not required to be proved. We find that the Tribunal has rightly held 75% disability suffered by claimant on the basis of disability certificate. Since the nature of injuries suffered by the claimant has not been disputed by the appellant, and further it is also established from the record that the claimant had to engage a helper/nurse to do day to day routine work, and therefore, in these circumstances the Tribunal was justified in holding the loss of earning capacity of the claimant to be 75%. " The disability certificate issued by C.M.O. discloses disability of claimant as 65% and as such the functional disability of claimant is accepted as 40%. The claimant- appellant is also entitled for 40% future prospects in view of judgment of Hon'ble Apex Court in the case of Syed Sadiq Vs. Divisional Manger, United India Ins. Co., 2014 0 Supreme(SC) 34. The multiplier of 16 is applicable, as the age of the claimant was 35 years at the time of accident. In view of above discussion, the compensation awarded by the Claims Tribunal is reassessed as below:- 1) Annual income = Rs. 15,000/- 3) Future prospects (40%) = Rs.6,000/- 4) Total annual income = Rs.15,000/- + Rs.6,000/- =Rs.21,000/- 5) Loss of earning capacity (40%) : Rs. 8,400/- 6) Multiplier applicable : (16) = Rs. 8,400/- x 16 = Rs. 1,34,400/- 7) Loss of future income : Rs. 1,34,400/- 8) Medical expenses : Rs. 24,664/- 9) Pain and suffering : Rs. 5,000/- 10)Travelling allowance: Rs 10,000/- 11)Rich diet: Rs. 5,000/- Total : Rs. 1,34,400/- + Rs. 24,664/- + Rs. 5,000/- + Rs. 10,000/- + Rs. 5,000/- = Rs. 1,79,064/- In view of aforesaid discussion, the first appeal from order filed by claimant is hereby partly allowed and compensation awarded by the Claims Tribunal is enhanced from Rs.44,664/- to Rs.1,79,064/-. The claimant-appellant is also entitled for 6% interest on the enhanced amount from the date of judgment and award of Claims Tribunal i.e. 27.11.2006. The respondent-Insurance Company is directed to deposit the enhanced amount alongwith interest, within two months from today before the concerned Motor Accident Claims Tribunal. The claimant is entitled to withdraw the entire deposited amount without furnishing any surety. No order as to costs. Order Date :- 16.5.2025 PS POOJA SHARMA High Court of Judicature at Allahabad