Smt. Champa Devi W/O Chhitar Mal Vs Chola Mandlam Ms General Insurance Company Limited

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

S.B. Civil Miscellaneous Appeal No. 2236/2022

Smt. Champa Devi W/o Chhitar Mal, Aged About 32 Years, R/o Jhalra Ki Dhani, Ward No. 14, Virat Nagar, Tehsil Virat Nagar, Distt. Jaipur. Rajasthan.

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----Claimant-Appellant

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Versus

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Chola Mandlam Ms General Insurance Company Limited, Through Constituted Officer, Unit No. 704-707 7Th Floor, Signature Tower, Dc-2 Lal Kothi Scheme, District Shopping Centre, Tonk Road, Jaipur. Rajasthan. (Ins. Co. Bolero No. Rj-14-Ub-7667). Insurance Policy No. 336201649549/000/00 Validity Date- 24.01.2019 Till 23.01.2020.

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Mukesh Meena S/o Mool Chand Meena, R/o Paapda, Tehsil Udaipurwati, Distt. Jhunjhunu, Rajasthan. (Regd Owner And Driver Bolero No. Rj-14-Ub-7667)

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----Non-Claimants-Respondents

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For Appellant(s)	:	Mr. Ram Singh Rathore
For Respondent(s)	:	Ms. Anjali Assat & Ms. Shara Pradaya Rajor on behalf of Mr. Virendra Agrawal
		Mr. Jai Kishan Singh &
		Mr. Anirudh Gupta on behalf of
		Mr. Ashish Sharma Upadhyay

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HON'BLE MR. JUSTICE GANESH RAM MEENA

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Order

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22/04/2025

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Instant civil misc. appeal has been filed by the appellant/claimant against the judgment and award dated 20.04.2022, passed by the Court of learned Additional District Judge No.2 and Motor Accident Claims Tribunal, Shahpura, District Jaipur (for short ‘the Claims Tribunal’) in Claim Petition No.157/2022 (75/2020), whereby learned Claims Tribunal

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awarded a sum of Rs.3,41,551/- as a compensation alongwith interest at the rate of 7% per annum from the date of filing of the claim petition.

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Learned counsel for the appellant-claimant submits that the appellant/claimant met with an accident on 10.01.2020. It is stated in the claim petition by the claimant that while she was standing on the road side, she was hit by a Bolero Vehicle bearing No.RJ-14-UB-7667 which resulted in sustaining several injuries. Learned counsel further submits that in the said accident, the appellant/claimant sustained 31.01% disability but the Tribunal has reduced the disability to 16% without there being any justification. Learned counsel further submits that the appellant/claimant is entitled for the compensation treating the disability to be as 32% as a round off 31.01% disability. Learned counsel further submits that the appellant/claimant was also entitled for 40% future prospects in the light of the judgment of the Hon’ble Supreme Court delivered in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. reported in 2017 (16) SCC 680 .

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Ms. Anjali Assat & Ms. Shara Pradaya Rajor appearing on behalf of Mr. Virendra Agrawal, learned counsels for the insurance company submit that the Tribunal has not committed any error in considering the disability of the appellant/claimant as 16% because the Doctor who has issued the certificate with regard to disability of 31.01% was not examined by the Claims Tribunal.

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Heard.

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Considered the submissions made by the both the counsels appearing for the respective parties and also perused the material made available to the Court.

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The learned Claims Tribunal while making observations with regard to disability of the appellant/claimant has observed that though the disability certificate (Ex.19) has been issued by the Doctor with regard to 31.01% permanent disability sustained by the appellant/claimant, but the said certificate does not certify that the disability of 31.01% as stated in the certificate is with regard to a particular body part or it is for the whole body and, therefore, the Claims Tribunal has ascertained the permanent disability of 16%.

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The submissions made by learned counsel appearing for the Insurance Company that the Doctor has not been examined before the Claims Tribunal and, therefore, the observations and findings of the Claims Tribunal are justified. Whether the disability as given in the disability permanent certificate i.e. 31.01% can be assessed 16% by the Claims Tribunal only because the Doctor who has issued certificate has not been examined. In this regard, the Court is of the opinion that the Doctor who has issued the disability certificate is not under the control of the appellant/claimant.

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The provisions of MACT Act are part of the legislation and it is for the Claims Tribunal to summon the Doctor who has issued the certificate. In case the Insurance Company was aggrieved by the certificate of disability issued as regards the appellant/claimant, the Insurance Company could have moved an application for summoning the Doctor. In the present case, neither

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[CMA-2236/2022]

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the Claims Tribunal has summoned the Doctor for examination nor the Insurance Company made an application for summoning the Doctor so as to certify the disability and in such circumstances, the disability as mentioned in the certificate (Ex.19) cannot be doubted. In absence of any contrary evidence the certificate (Ex.19) has to be presumed to be correct and proper.

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Thus, the disability for the purpose of computing the compensation amount is to be treated as 31.01%, which is round off to 32%.

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In view of the above, the award dated 20.04.2022 in Claim Petition No.157/2020 is modified as under:-

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A. The appellant/claimant is entitled for compensation of Rupees 35,000+49,231+5,000+15,000+5,000+464640+185856 (under the aid of future prospects). Thus, the total compensation amount would be Rs.7,59,727/-.

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B. The amount already paid shall be deducted from the aforesaid total compensation amount as ordered above. The appellant/claimant would be entitled for interest at the rate of 9% per annum on the enhanced amount, if same is not paid within the period of two months.

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Accordingly, the present civil misc. appeal stands disposed of.

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(GANESH RAM MEENA),J

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ARTI SHARMA /82

Smt. Champa Devi W/O Chhitar Mal v. Chola Mandlam Ms General Insurance Company Limited

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Smt. Champa Devi W/O Chhitar Mal v. Chola Mandlam Ms General Insurance Company Limited

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