H. Baruah, J.
1. M/s Oriental Insurance Co. Ltd. Aizawl, represented by its Branch Manager, feeling aggrieved with the judgment and award dated 09.04.07 passed by the learned Member, Motor Accident Claims Tribunal, Aizawl in Case No. 123/05 preferred this appeal under Section 173 of the M.V. Act, 1988. The learned Member, MACT vide judgment and award impugned, awarded a compensation to the claimant-respondent No. 1 herein at Rs. 2,41,410/- only with interest at the rate of 9% p.a. from the date of filing of the claim petition until realization of the entire amount.
2. We have heard Mr. Ricky Gurung, learned Counsel for the appellant, and Mrs. Helen Dawngliani, learned Counsel for respondent No. 1.
3. Respondent No. 1 herein as claimant filed a claim petition under Section 163-A of the M.V. Act, claiming compensation on the ground of injury sustained by her due to vehicular accident occurred on 31.03.01 at about 8:30 A.M. between Keitum and Tuichang, while she was traveling in a bus bearing registration No. MZ-01/A-9872 proceeding from E. Lungdar towards Aizawl. Respondent No. 2 herein, wife of A. Malik, resident of Zarkawt Aizawl was the owner of the offending vehicle which was driven on the relevant date of accident by one Chunga of Ratu, insured with the present appellant. It is also the case of the claimant that the bus met with the accident during its policy validity period obtained from the appellant company. As a result of the accident, it was claimed, the respondent No. 1 sustained 50% permanent disability who was under treatment for a period of 27 days w.e.f. 31.03.2001 to 27.04.2001.
4. The claim was contested by the appellant Company alone. The learned Member, MACT Aizawl, after due enquiry of the claim awarded compensation to the claimant as stated herein before.
5. From the record and the impugned judgment, it is noticed that the claimant examined herself as one of the witnesses. The doctor, who issued the certificate (Ext. C-10) was also examined. It is to be noted herein that the appellant Company contested the claim on all grounds after obtaining leave from the learned tribunal by filing an application under Section 170 of the Act.
6. Learned counsel for the appellant, at the very outset, while arguing the case submits that the learned Trial Court committed error and illegality in calculating the award having taken into consideration the Certificate (Exhibit C/10) issued by the doctor wherein the respondent No. 1 herein stated to have sustained 50% permanent disability. He also submits that for assessment of 50% permanent disability of the respondent No. 1, it ought to have been supported by some other documents to wit like injury report etc. Though, the claimant in her evidence on oath claimed to have sustained fracture injuries in, ribs, chest and spinal cord, no injjury report has been proved to substantiate her claim. The learned Counsel for the appellant, therefore, in view of the above submits that the finding of the doctor that the respondent No. 1 received 50% permanent disability cannot be accepted. From the evidence of the doctor we will find that the claimant was admitted in the Hospital on 31.03.01 for contact dumatitis with vertigo which resulted chronic backache. According to doctor the chronic backache caused 50% permanent disability. The words 'dumatitis with vertigo' appearing in the evidence of the doctor do not speak for fracture either of the ribs, chest or spinal cord. The doctor nowhere stated that the claimant suffered fracture injuries on ribs, chest and spinal cord, although, the claimant herself very categorically in her evidence stated as such. It is in the evidence on record that the claimant-respondent No. 1 was undergoing treatment for about 27 days for the injuries sustained by her. But when report (Exhibit C/10) issued by the doctor does not specifically speak of the injuries sustained, it would impossible on the part of the Court to accept the percentage of permanent disability. In the context of all the materials in its entirety as stated above, the learned Counsel for the appellant submits that the case be remanded back assessing the disability of the claimant respondent No. 1 by a Medical Board.
7. Mrs. Helen Dawngliani, learned Counsel for the respondent No. 1, while arguing the case also admits that the claimant failed to substantiate her claim of sustention of injuries on ribs, chest and spinal cord through documentary evidence. While arguing, she has put emphasis that there is nothing to disbelieve in the evidence of the doctor who issued Certificate (Exhibit C/10). This piece of argument however, cannot inspire the Court to accept the evidence of the doctor when the findings are not based on facts.
8. Since the opinion of the doctor does not speak for the basis of assessment of the disability, it would not be justifiable on the part of this Court to accept the evidence of the doctor. There is however no dispute in respect of the income of the claimant-respondent No. 1 during the relevant point of time. She was selling clothes on commission basis and thereby earned Rs. 3,000/- p.m. The learned Trial Court, while calculating the compensation deducted Rs. 800/- from Rs. 3000/- as pocket expenses and took the monthly income at Rs. 2,200/-. Deduction of Rs. 800/- from the income of Rs. 3000/-p.m. would perhaps not be justiciable, since the present case is not a case of fatal accident where 1/3rd deduction is allowable. Mrs. Helen Dawngliani, learned Counsel for the respondent No. 1 in view of the evidence of the doctor also concedes remand of the case for a fresh decision.
9. In view of the facts and circumstances of the case and evidence on record, submissions advanced by learned Counsel of either party, this Court finds it appropriate to remand the matter to the tribunal below for a fresh decision with a direction to get the claimant respondent No. 1 examined by Medical Board.
10. In the result the judgment and award stand set aside and the matter is remanded back. Learned tribunal shall order for constitution of a Medical Board for the purpose of assessment of the disability of the respondent claimant and after receipt of the report of the Medical Board shall render a fresh decision.
11. Appeal is accordingly stands disposed of.