Ashim Kumar Banerjee, J. - (1.) THE acci- autorickshaw driver had to be admitted in dent was not in dispute. It was also not Vidyasagar Hospital after sustaining injury in dispute that the appellant who is an out of such accident. He had to stay in the hospital for two days. THE learned Judge accepted the version of appellant-claimant, however, granted compensation only to the extent of Rs. 5,000 as general damages. THE learned Tribunal observed that there was insufficient medical evidence tendered. Hence, this appeal by the appellant.
(2.) MR. Krishanu Banik, learned counsel appearing for the appellant has contended as follows: (i) Under section 142 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the said Act of 1988') the permanent disablement has been defined which includes destruction or permanent impairing of the powers of any member or joint. Hence the learned Judge should have applied the principles laid down under section 140 of the said Act of 1988 granting one time compensation at least to the extent of Rs. 25,000. (ii) Under the said Act of 1988 a structured formula has been prescribed in the Second Schedule. The extent of disablement has been defined therein. It has also been prescribed that adjudication of disablement would be according to the provisions of the Workmen's Compensation Act, 1923. The learned Judge did not follow such guideline. While elaborating his argument, Mr. Banik has drawn our attention to the medical evidence tendered before the learned Tribunal. He has taken us to the discharge certificate issued by the Vidyasagar Hospital as well as the medical certificate of Dr. P.K. Mondal suggesting 10 per cent permanent disability due to pain in nose and difficulty in breathing. Mr. Banik has also taken us to the deposition of Dr. Mondal before the learned Tribunal. We have perused the relevant pro-visions of the Act so highlighted by Mr. Banik. We find that under section 140 in case of permanent disablement claimant in addition to other procedure for adjudication of the compensation is entitled to a fixed sum of Rs. 25,000 which is commonly called as 'no fault liability'. We find from section 142 that permanent disablement includes destruction or permanent impairing of the powers of any member or joint. In the instant case, the appellant sustained injury on his nose that had been fractured. He was subsequently discharged from the hospital after treatment. The hospital authority did not specifically certify that his injuries were beyond repair and to that extent he had permanent disablement. He goes to a doctor who is an Orthopaedic Surgeon and not an E.N.T. Specialist after about one year. He suggests that he was disabled to the extent of 10 per cent. We cannot overlook the fact that the doctor in his cross-examination said that he did not advise any further treatment. According to doctor, he has pain and breathing trouble. The doctor never said that it was beyond treatment. On a combined reading of the deposition of Dr. Mondal and his certificate we search in vain any definite assertion to the extent that his injury was beyond repair. It is also clear that Dr. Mondal never treated the appellant. In such event, we cannot satisfy ourselves to the extent that the appellant had a permanent disability because of the accident.
(3.) MR. Banik has tried to contend that once the action was initiated as against the owner and the driver and the insurance company indemnified the owner as against claim which might arise out of any accident to be made by a third party, the insurance company by such policy of insurance has bound them and the claim made by the appellant is recoverable from the insurance company on the strength of the policy oi insurance. We are unable to accept the contention of Mr. Banik on that score. It is true that the appellant suffered injury in the said accident. He is an auto driver. He had to remain out of work for two days. He had to spend money for treatment in the hospital. Unfortunately, the said Act of 1988 does not recognise any claim unless and until such eventuality brings a permanent disability in his life impairing his regular ability to work and earn his livelihood.;