Findings of Expert regarding disablement is acceptable in absence of Contrary Evidence for Claim of Insurance: Calcutta HC [Read Order]

The Calcutta High Court held that the findings of experts regarding disablement are acceptable in the absence of contrary evidence for a claim of insurance. The disability certificate is acceptable and can be taken into consideration for assessment of the extent of disability.

The Appellant- Insurance Company was represented by Mr Parimal Kumar Pahari and the Respondent No.1- Claimant was represented by Mr Hemendra Kumar Guha Roy, Ms Sunandita Ghosh, and Mr Sujoy Guha Roy.

National Insurance Co. Ltd, the appellant challenged the judgment and award dated 20th January 2017 passed by Judge, Bench XI-cum-Judge, Motor Accident Claims Tribunal, City Civil Court, Calcutta in MAC Case No. 75 of 2008 granting compensation of Rs.11,44,937/- together with interest in favour of the claimant under Section 166 of the Motor Vehicles Act. 1988.

While the victim tried to board the bus at Acharya Jagadish Chandra Bose Road near Maidan Police Station to return home at that time the said vehicle overtook another bus of route no.230 and started moving due to which the victim fell from the said bus and sustained multiple fracture injuries on both legs. Immediately the victim was taken to SSKM Hospital where he was shifted to the Belle Vue Clinic where he was admitted till 19th September, 2007. As a result of the injuries sustained in the said accident, the victim became permanently partially disabled to move and work as before.

The victim applied for compensation of Rs.7,21,395/-together with interest under Section 166 of the Motor Vehicles Act, 1988. The claimant-victim to establish his case examined five witnesses and produced documents that have been marked as Exhibits 1 to 19 respectively. The appellant insurance company keenly contested the claim application by filing a written statement, however, it did not adduce any evidence in support of its case.

Upon considering the materials on record and the evidence adduced by the claimant, the Tribunal granted compensation of Rs.11,44,937/- together with interest in favour of the claimant under Section 166 of the Motor Vehicles Act. 1988.

It was submitted that the doctor who treated the victim was not examined by the claimant to establish the extent of injury sustained by him. The claimant has examined Dr. P.K. Mondal who never treated the victim and has only issued a certificate noting the extent of disability in the victim of 35% after a lapse of nine years and as such the evidence of the doctor and the disability certificate is not at all reliable and has been produced only to get compensation in the present case.

He further submitted that the victim after obtaining the fit certificate from the treating doctor joined his service as a computer operator at United Bank of India and with time he got increments and promotions in his service and superannuated from service as Head Cashier and, therefore, there is no loss of earnings of the victim. To get compensation under the head of loss of earnings, the claimant has to establish that for the injuries sustained in the accident, there has been a loss of earnings to the victim, however, since the victim had no loss of earnings, he is not entitled to receive compensation on such head.

Since the evidence of Dr P. K. Mondal is not challenged by any contrary evidence or controverted in cross-examination, hence being a doctor and an expert, his evidence about disability is to be accepted in the absence of any contrary evidence to disbelieve the evidence of the expert.

The Court finds substance in the submission of Mr. Guha Roy, advocate for respondent no.1-claimant that in the absence of any contrary evidence, the findings of the expert regarding the disablement should be accepted. Accordingly, the disability certificate is acceptable and can be taken into consideration for assessment of the extent of disability.

The Supreme Court has been considered by the Division Bench of the Court in National Insurance Company Limited versus Smt. Sulekha Das & ors. accepted the position of law that an appellant cannot be worse off for filing an appeal and the award of the Claims Tribunal attains finality on the claimant accepting the same without carrying it higher up. In view of the proposition laid down by the Supreme Court in R. Swaminathan and Ranjana Prakash, it is needless to state that there cannot be an enhancement of compensation amount in an appeal filed by the insurance company challenging thecompensation granted by the Tribunal in the absence of cross-objection of the claimants.

Justice Bivas Pattanayak observed that since no material has been placed to show of deliberate and/or intentional act of the appellant-insurance company to delay the grant of compensation.

The Court held that the claimant is entitled to compensation of Rs. 2,23,709/- together with interest at the rate of 5% per annum from the date of filing of the claim application till payment. It is found the appellant-insurance company has made a statutory deposit of Rs. 25,000/- vide OD Challan No. 64 dated 10th April 2017 and has also deposited a sum of Rs. 16,65,025/- vide in terms of the order of the Court dated 25th July 2017.

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