THE COMMISSIONER OF INCOME TAX, HYD vs. A.P.STATE WARE HOUSING CORPORATION, HYD

Page No.# 1/7 GAHC010149382017

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp. 596/2017 1:PRAKASH TODI S/O LATE DEOKI NANDAN TODI, R/O G.N.B. ROAD, TINSUKIA, P.O. and P.S. TINSUKIA, DIST. TINSUKIA, ASSAM.

VERSUS 1:ORIENTAL INSURANCE CO. LTD. and ANR REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE , G.S. ROAD, BHANGAGARH, GUWAHATI-05, DIST. KAMRUP M, ASSAM, INSURER OF VEHICLE 2:REEMA BODO D/O LAKHESWAR BODO RUPNAGAR MAIN ROAD IDRAPUR PS. DISPUR GHY PRESENT ADDRESS C/O SANJIB DUTTA AK AZAD ROAD REHABARI GHY- Advocate for the Petitioner : MR.S CHANDA Advocate for the Respondent : MRS.P M DUTTA

Page No.# 2/7 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 31-10-2019 Heard Mr. S. Chamaria, learned counsel for the appellant as well as Mr. A. Dutta, learned counsel for the respondent No. 1. 2. The appellant/claimant has filed this appeal praying for enhancement of the compensation amount awarded to him by the learned Tribunal in MAC Case No. 17/2008, vide Judgement dated 20.04.2013. 3. The facts of the case in brief is that the appellant suffered injuries in a motor accident that took place on 24.07.2007, when the bus in which he was travelling in hit a standing truck. 4. The appellant/claimant’s counsel submits that due to injuries suffered by the appellant on his head and other parts of his body, the appellant has taken treatment from various hospitals in Assam. The appellant was examined by the Medical Board, Tinsukia on 03.06.2008, wherein his disability was stated to be “post traumatic paralysis of left upper limb and paralysis of right eye”. The percentage of disability was also shown to be 65 % and the nature of disability has been stated to be permanent. The learned counsel for the appellant also submits that in all cases involving accidents under the Motor Vehicle Act, it is not necessary for the doctors to give evidence to prove the permanent disability of the appellant. 5. The appellant’s counsel submits that in view of the above, the learned Tribunal had to compute the loss of earning capacity of the appellant on the basis of the Medical Board Report dated 03.06.2008. However, the learned Tribunal has come to a finding that the disability of the appellant’s upper limb is questionable due to the fact that the appellant had put his thumb impression in the Medical Board Report dated 03.06.2008, while giving his signatures in the affidavits dated 28.05.2009 & 01.02.2012. Also, the appellant had put/given

Page No.# 3/7 his full signature in the cross-examination on 30.05.2012. He submits that though the learned Tribunal has found the disability of the appellant’s upper limb to be questionable, the learned Tribunal could not have simply ignored the loss of vision suffered by the appellant in his right eye. 6. The learned counsel for the appellant also submits that the learned Tribunal has rejected the evidence of the appellant, which is to the effect that he was earning an annual income of Rs. 18,000/- per month in his individual capacity and as a part of ‘Hindu Undivided Family’ (HUF). He submits that the learned Tribunal could not have ignored the income tax return for the year 2006-07 which had been submitted by the appellant, when deciding the question of loss of earning capacity of the appellant. In support of the above submissions, the learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of United India Insurance Co. Ltd. v. Indiro Devi, reported in (2018) 7 SCC 715. 7. Mr. A. Dutta, learned counsel for the Insurance Company, on the other hand, submits that the appellant/claimant did not examine any Doctor, who had issued the Medical Board Report dated 03.06.2008. He submits that as the question of loss of future earnings would depend upon the proof of disability given in the Medical Board Report, it was incumbent on the part of the appellant to produce a Doctor, who could prove the Medical Board Report. In support of his submissions, the learned cousnel for the respondent/Insurance Company has relied upon the judgment of this Court in Oriental Insurance Co. Ltd. vs. Dilip Rabha & Ors. reported in 2019 (2) GLT 944 and in the judgment of the Apex Court in Raj Kumar vs. Ajay Kumar & Anr. reported in (2011) 1 SCC 343. He also submits that as the HUF is being run by the wife of the injured, there is no loss of earning of the appellant from the HUF. Also there is no proof of loss of earning capacity of the appellant in his individual capacity. 8. I have heard the counsels for the parties.

Page No.# 4/7 9. A perusal of the Lower Court Records shows that no member of the Board who had issued the physical handicapped certificate dated 03.06.2018 (Ex.45) had been examined by the learned Tribunal. The medicines purchased by the appellant also includes otrivin nasal drops and Rablet-inj., as reflected in Page-96 of the records of the learned Tribunal, which does not seem to have any connection with the alleged injuries sustained by the appellant. Otrivin nasal drops is for nasal problem while Rablet.inj is a drug for treatment of stomach disorders. In the case of Raj Kumar (supra), the Apex Court has held at Paras 10, 12 and 18 as follows:- 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanemt or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant

Page No.# 5/7 based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give ‘ready to use’ disability certificates, without proper medical assesement. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a diability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/ Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 10. In the case of Oriental Insurance Co. Ltd. and Ors. vs. Dilip Rabha and Ors. (Supra) this Court has held at Para 13 as follows:- 13. With regard to the importance of examinaiton of the Doctor in a case of personal injury where the claimant has asserted about sufferance of permanent disablement, a Division Bench of this Court in the case of National Insurance Co. Ltd. Vs. Chandr-eshwar Thakur & Ors., reported in 2001 (1) GLT 393, has observed as under: “2. The whole contention of the appellant is that the learned Tribunal arrived at conclusion that the claimant suffered permanent disability without examining the Doctor. Since the claimant sustained injury, it was incumbent on the part of the claimant to have examined the Doctor and establish its case as to what percentage of permanent disabilities was suffered by the claimant. It would clearly appear that besides submitting a certificate

Page No.# 6/7 from the Doctor, no doctor who has treated the claimant have been examined by the claimant. Non-examination of the Doctor to establish the extent of disabilities suffered by the claimant deny the opportunity to the Insurance Company to cross-examine the Doctor. In our jurisprudence witnesses put up by either of the parties is subject to cross-examination so as to test eracity or the truthness or correctness of the statement of the witnesss. In the instant case, no Doctor has been examined to establish the extent of disabilities suffered by the claimant and in that view the permanent disability has not been proved. Apart from that the Tribunal saddled the liability with the Insurance Company on the compensation assessed on the basis of permanent disability suffered by the claimant, without giving any opportunity of cross-examining the Doctor.” 11. A perusal of the above judgments clearly goes to show that the evidence of the doctor is necessary so as to prove the percentage of permanent disability of the injured. Though the Apex Court in the case of Raj Kumar (supra) had given instances in which the evidence of the doctor could be dispensed with, the facts and circumstances of the present case, in the opinion of this Court, requires any Member of the Medical Board to give evidence with regard to the injuries sustained by the appellant and prove the Physically Handicapped Certificate dated 03.06.2008. This would be in consonance with the judgment of the Division Bench of this court in National Insurance Co. Ltd. Vs. Chandr-eshwar Thakur & Ors. reported in 2001 (1) GLT 393 and Raj Kumar (supra). 12. In view of the fact that the Apex Court in Raj Kumar (supra) has held that there was no question of proceeding further and determining the loss of future earning capacity of the injured, unless permanent disability on the part of the injured is proved, this Court is not going into the merits of the appellants claim with regard to the appellants alleged loss of earning capacity. The said question would only arise when the learned Tribunal comes to a finding that there was permanent physical disability on the part of the appellant, after the concerned medical officer/s gives/adduces evidence. Consequently, the impugned judgment dated 20.04.2013 passed by the learned Member, MACT Tribunal in MAC Case No. 17/2008 is set aside. The case is accordingly remanded back to the learned Tribunal for giving

Page No.# 7/7 opportunity to the appellant/claimant to adduce evidence to prove the Physical Handicapped Certificate dated 03.06.2008 and the percentage of permanent disability, if any. 13. The parties shall appear before the learned Tribunal on 04.12.2019. 14. Send back the LCR.

JUDGE Comparing Assistant