Full Judgment
S.S. Jha, J.
1. This appeal is filed by the claimant for enhancement of compensation.
2. Brief facts of the case are that the appellant was returning from sub-jail Jaura to Gwalior in a Government owned vehicle Matador bearing registration No. MP-02/7224 at Opposite 'Karil Wale Baba' AB Road Morena. Accident caused injuries in the nose, right cheek, right and left leg joints and right hand. Complaint was lodged and challan was filed under Sections 279, 337, 338,I.P.C. in the Court. Appellant Ramhet was examined in District Hospital, Morena, thereafter he was returned to Gwalior for treatment. He has suffered grievous injuries in right and left legs and right hand and suffered fracture. Appellant submitted that he has suffered permanent disability. On account of permanent disability he is unable to carry out his business of milk vending and on account of severe injuries and permanent disability suffered by him, he filed an application for compensation and claimed compensation for Rs. 6,38,500 with interest.
3. Respondent No. 1 in his reply denied the factum of accident and denied that appellant is carrying any business of selling milk. Respondent No. 2 stated that the accident has occurred on account of negligence of the driver of the Matador No. MP02/7224 and false case has been registered. Respondent No. 2 denied income of the injured and it is pleaded that appellant has given inflated income. Owner and driver of Matador are necessary parties.
4. Now the question arises in this case is whether appellant has suffered permanent disability.
5. Appellant Ramhet is examined as AW1 He has deposed that he was admitted in Morena Hospital between 24th and 26th August and then he was referred to Gwalior for treatment, but he has not gone to the Government Hospital, but he was admitted in Dubey Nursing Home and he was treated by Dr. S.N. Tripathi. He spent Rs. 20,000 towards medical expenses. Since he has suffered fracture and, bone was set and he was bandaged with plastered bandage, for which he spent Rs. 5,000 and his expenditure was around Rs. 5,000 for food and other items. He deposed that he was having four she-buffallos and he was earning Rs. 1,000 per month by selling milk of she-buffallos after deducting other expenses. On account of injuries he has sold the she-buffallos as he was unable to look after the she-buffallos and sell their milk. He admitted in the cross-examination that at the time of accident, he was posted as Warden in the jail and he is continuing on the same post. In the year 1998 he was earning Rs. 3,300 per month and on the date of evidence he was getting Rs. 4,600 p.m. He denied that he had applied for reimbursement for the expenses in treatment from the State Government. He has stated that he has not claimed any money from the State Government on account of injuries. Permanent disability certificate Ext.P-1 was given to him by Dr. S.N. Tripathi. This certificate was obtained by him one and half years after the accident. He admitted that he was driving the jail vehicle and he possesses the driving licence and the said Matador has collided with the truck. He admitted that he has suffered injuries during the course and arising out of accident. He denied that accident was caused on account of his mistake. Mohd. Zahir AW 2 has deposed that he told the driver that look the truck coming from the opposite direction will dash against our vehicle, then driver has driven his vehicle away from the road, but then also truck has dashed against the Matador. This evidence is directly in conflict with the statement of AW 1 claimant. It appears that in order to show that there was no negligence on the part of claimant, this statement has been given by the witness. This witness has admitted in the cross-examination that the applicant has served for more than 20 years and must be around 48-50 years of age. They are serving in the same department. He admitted that Matador was driven by the claimant Ramhet and only two passengers were sitting in the Matador. Matador was driven between the speed of 20-25 km. per hour. He admitted that he cannot drive the vehicle. He was unable to identify colour of the truck. He denied the suggestion that Ramhet has dashed the vehicle against the Neem tree. Dr. S.N. Tripathi (AW 3) has stated that Ext.P-10 has been issued by him. He has stated that he has examined Ramhet on 7th November, 1998 and he examined his x-ray report and physically examined him and he found that it was the case of fracture in patella bone of right knee and there was stiffness in the right wrist after the operation. This disability is permanent in nature. He has only seen the x-ray plate taken out immediately after the accident and he has stated that the said permanent disability cannot be cured in future. Said Dr. Tripathi was posted in the Civil Dispensary at Mo, District Bhind, but Ext. P-10 was not written by him at Bhind and in the letter pad his address of Gwalior is mentioned. He was not in a position to state about the age of fracture. He admitted that he was present in the Dubey Nursing Home when the appellant was operated upon. He admitted that the certificate of permanent disability Ext. P-10 was given by him after going through x-ray report. He admitted that without going through x-ray report he was not in a position to write certificate Ext. P-10. He stated that since he is M.S. and Government Doctor, he can issue certificate of injuries at Gwalior. He admitted that he has not given the percentage of disability in certificate Ext.P-10. He denied that he is not competent to issue certificate of permanent disability at a place where he is not posted. NA. W1 Kamlesh Sharma has deposed that police vehicle has dashed against his truck and thereafter police vehicle dashed against the tree. Police van was driven in a rash and negligent manner. Thereafter police seized his vehicle. Considering the overall evidence it is proved that accident took place between two vehicles, one driven by the applicant and another driven by respondent No. 2. ;
6. Now the next question is whether claimant has suffered permanent disability.
7. On going through Ext.P-10 issued by Dr. S.N. Tripathi this certificate is vague in nature and it has been issued after going through x-ray of the fracture. In the cross-examination Dr. Tripathi has admitted that certificate was issued after considering x-ray report and he has not carried out any scientific test to determine the nature of disability and percentage of permanent disability. In the circumstances evidence pertaining to permanent disability is not reliable. Appellant has moved an application under Order 41, Rule 27, C.P.C. and filed certain documents. A certificate has been filed pertaining to his disability. In this certificate issued by Dr. S.N. Tripathi it is mentioned that disability is 40%. This is a Railway concession certificate given to the orthopaedically handicapped person. It appears that Dr. Tripathi was transferred from Mo, District Bhind as Medical Officer, Morena. He issued said certificate. This certificate is not issued by the Medical Board. It is apparent that evidence of this doctor is not trustworthy and he is ready to oblige anyone by issuing fake certificates. Considering the document and evidence of Dr. S.N. Tripathi we are of the opinion that evidence of Dr. Tripathi is not at all reliable. He is wholly unreliable witness and his conduct is required to be examined by his employer i.e. State Government as per law after affording an opportunity of hearing. Other document is fee certificate issued by Dr. Rajeev Dubey. Two certificates have been issued which were issued by Dr. Rajeev Dubey for his treatment and discharge ticket of Dubey Orthopaedic and Maternity Hospital. Considering overall evidence on record we find that this appellant Ramhet himself was driving the Matador and accident has occurred during the course and arising out of accident. He has not examined his employer or any representative of employer to demonstrate that he has not received any medical reimbursement from his employer. This witness is a unreliable witness. He is in Government service but he has no hesitation in stating that he is carrying on business of selling milk, therefore, under Civil Service (Conduct) Rules his conduct is required to be examined by his employer whether apart from service he can carry the business of selling milk, as he has deposed before the Court. Thus, evidence pertinent to permanent disability is not at all reliable. It is true that the appellant has suffered fracture but he has not submitted any document and he has not come to the Court with clean hands. He has suppressed the fact regarding reimbursement from the State Government. He has not impleaded his employer as party to bring correct facts on the record. Burden was on him to prove that there was no negligence on his part as he was driving the vehicle. Evidence of this witness appears to be doubtful. He has not produced his driving licence or any order of his controlling officer that he was directed to drive the vehicle. Nobody from his office has been examined to show that the claimant was ordered to drive the vehicle. Considering the evidence on record his evidence appears to be doubtful. However, since both the parties had admitted about collusion of two vehicles and in the absence of any suggestion regarding composite negligence, it is held that applicant has suffered injuries on account of accident.
8. Claims Tribunal has awarded compensation of Rs. 40,000, which in our opinion is on the lower side. Ext.P-16 is a medical bill issued on the prescription of J.A. Hospital, the name of doctor is mentioned as J.A.H. He has filed some receipts and cash memos for the amount of Rs. 1,920.80. Since permanent disability is not proved and since claimant submits that he has not taken any reimbursement, it shows that claimant was not permitted to drive vehicle, therefore, he has not claimed reimbursement from the State Government. He has submitted the actual treatment receipts for Rs. 3,000 and Rs. 3,500 signed by Dr. Rajeev Dubey i.e. total Rs. 6,500. Adding overall figures and considering nature of injuries adding this figure compensation is enhanced to Rs. 75,000, which includes the actual expenses borne by the claimant, pain and suffering and other aspects. Appellant will also be entitled for interest at the rate of four per cent per annum from the date of filing of appeal till its payment on the enhanced amount of compensation.
9. Appeal succeeds in part and is allowed without any order as to cost.