* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.1976 of 2010
%13.06.2014
Between:
1) Mohd. Asif Khan (died)
2) Smt. Shaheen Begum and others. Appellants AND Mohd. Irfan and another. ….
Respondents ! Counsel for Appellants : Sri N. Ashok Kumar ^ Counsel for Respondent No.2 : Sri K.S.N. Murthy < Gist:
> Head Note:
? Cases referred:
1) 2011 ACJ 1 (SC)
2) 2007 ACJ 491 (AP)
3) 2003 (4) ALD 183 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.1976 of 2010
JUDGMENT:
Aggrieved by the Award dated 30.07.2010 in O.P.No.999 of 2008 passed by the Chairman, MACT-cum-XI Additional Chief Judge, City Civil Court, at Hyderabad (for short “the Tribunal), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 14.03.2008 at about 1:00pm, when he was proceeding on his scooter bearing No.AP 28 B 3990 to his residence at Harazpeta and when he reached near petrol bunk at Harazpeta, one auto bearing No. AP 28 W 9154 came from opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the scooter. Thereby, the claimant fell down and received grievous injuries all over the body and suffered fracture injuries to his right leg and hand. Immediately, he was shifted to Osmania General Hospital and from there he was shifted to C.C Shroff Memorial Hospital, Barkatpura, where he took inpatient treatment and underwent surgery as he suffered fracture of right femur and tibia. Due to the fracture of right thigh bone and tibia, he is unable to walk and stand without any support and also unable to climb ladder. It is averred that the accident was occurred only due to the rash and negligent driving by the driver of the offending auto. On these pleas, the claimant filed OP No.999 of 2008 against respondents 1 and 2, who are the owner and insurer of the offending auto and claimed Rs.3,50,000/- as compensation under different heads mentioned in the OP.
b) Respondent No.1 remained ex parte.
c) Respondent No.2/Insurance Company filed counter and opposed the claim denying the material averments made in the claim petition and urged to put the claimant in strict proof of the same. R.2 contended that the accident was occurred due to the sole negligence/ contributory negligence on the part of the claimant himself. R.2 submitted that during their investigation, they found that the driver of the auto had no valid and effective driving licence as on the date of accident and the owner has violated the terms and conditions of the policy by entrusting the vehicle to the driver having no valid driving licence, as such it is not liable to pay compensation. Thus, R.2 prayed to dismiss the OP.
d) During trial, PWs.1 to 3 were examined and Exs.A1 to A15 were marked on behalf of the claimant. RW.1 was examined and Ex.B.1 was marked on behalf of respondents.
e) On perusal of the award, issue No.1 is concerned, the Tribunal basing on the evidence of PW.1—injured-cum- complainant coupled with Ex.A1—FIR and Ex.A2—charge sheet, has held that the accident was occurred due to the rash and negligent driving by the driver of the offending auto.
f) Issue No.2 which relates to quantum of compensation, the Tribunal awarded Rs.79,000/- with proportionate costs and interest at 7.5% p.a from the date of OP till the date of realization under different heads as below:
Medical expenditure and extra nourishment Rs.
40,000/-
Transportation charges Rs.
3,000/-
Damage to clothes and scooter Rs.
1,000/-
Loss of past income Rs.
15,000/-
Pain and suffering Rs.
20,000/-
Total Rs.
79,000/-
Hence, the appeal by claimant challenging the adequacy of compensation.
3) Pending appeal, claimant died and his LRs came on record vide orders of this Court dated 26.02.2014 in MACMA MP No.238 of 2014.
4) Heard arguments of Sri Neeli Ashok Kumar, learned counsel for appellant/ claimant and Sri K.S.N. Murthy, learned counsel for R2/Insurance Company. Notice sent to the 1st respondent was returned unserved.
5 a) Impugning the quantum of compensation, learned counsel for appellant firstly argued that though the claimant produced cogent oral and documentary evidence to the effect that the claimant suffered fracture of right femur and right lower leg and underwent surgery through PW.2 and subsequently suffered disability which was assessed by PW.2 as 35% permanent, the Tribunal on a wrong assumption held that without suffering any disability, the petitioner with the help of PW.2 fabricated Ex.A.6—disability certificate and Ex.A.9—future operation charges certificate to claim high compensation.
Learned counsel submitted that the observations of the Tribunal in this regard are quite illogical. He submitted that the petitioner developed pain and disability due to malunion of bones and restriction of movements, only two years after the accident and so he rushed to the doctor who conducted surgery and PW.2 on examination found petitioner suffered disability and accordingly issued Ex.A.6—disability certificate and Ex.A.9—future operation charges certificate and there is no need to question the conduct of PW.1 or the evidence of PW.2. He vehemently argued that since the doctor who treated the petitioner himself issued disability certificate, the same should have been accepted by the Tribunal. He submitted that it is not necessary that disability certificate should invariably be obtained from a Medical Board. He thus submitted that the Tribunal committed grave error in not granting any compensation for loss of earning power due to disability and also compensation for meeting future medical expenditure.
b ) Secondly, he argued that though PW.3 gave evidence regarding the petitioner’s employment in Mithila Complex as electrician and about his earnings, the Tribunal unduly rejected the same. The Tribunal ought to have accepted the evidence of PW.3 and computed compensation for the disability basing on the income of the petitioner as spoken by PW.3.
He thus prayed to allow the appeal and enhance the compensation.
6 a) Per contra, learned counsel for R.2/Insurance Company while supporting the award firstly argued that there was a long gap of two years between the date of discharge of the claimant after operation and again his approaching PW.2 on the complaint of pain. Learned counsel submitted that the Tribunal entertained a genuine doubt that if really the claimant suffered pain and disability after discharge, he would not have kept silent for two years without approaching PW.2. So the conduct of the petitioner would clearly show that he procured Exs.A.6 and A.9 only to claim high compensation which was rightly rejected by the Tribunal.
b) Secondly, he argued that except the oral evidence of PW.3 that the claimant was working in Mithila Complex as Electrician and earning Rs.5,000/- per month, no record was produced by PW.3 in support of his evidence and so the Tribunal rightly rejected his evidence regarding the employment and earnings of the claimant and notionally fixed his earnings at Rs.4,000/- p.m. He thus argued that the compensation awarded under different heads is just and reasonable and there is no need to interfere with the same and prayed for dismissal of the appeal.
7) In the light of above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs any enhancement?”
8) POINT: The accident, involvement of scooter bearing No.AP 28 B 3990 of the claimant and auto bearing No.AP 28 W 9154 of
the 1st respondent and the claimant’s suffering injuries are all admitted facts. Though R.2/Insurance Company took a plea before the Tribunal that the auto driver had no valid driving licence, it could not substantiate the same and so the Tribunal rightly negatived its contention. No appeal is carried out by the Insurance Company against the said finding. So in the present appeal, the core issue left for consideration is whether the compensation awarded by the Tribunal is just and reasonable or needs enhancement.
9 ) As already stated supra, the main grievance of the claimant is that though he suffered 35% disability as deposed by PW.2, the Tribunal did not grant any compensation for loss of earning power due to disability. It also did not grant compensation for meeting future medical expenditure. In this regard, on a careful perusal of the evidence on record and the observations of the Tribunal made in Paras 19 to 21 of its award, I am of the considered view that the Tribunal totally erred in declining compensation for the disability and future medical expenditure. The evidence of PW.2 and Ex.A.4—discharge summary issued by C.C. Shrof Memorial Hospital would show that the claimant suffered comminuted fracture of right thigh bone and right lower leg, for which PW.2 performed Open Reduction and Internal Fixation (ORIF) by inserting implants on 02.04.2008. The claimant was discharged on 12.04.2008. Then according to PW.2, the claimant again approached him on 01.03.2010 with a complaint of pain and restriction of movements of his right leg. He gave some medicines and advised re-operation for removal of the implants. Again the claimant approached him on 03.03.2010 and at that instance, he gave Ex.A.6—disability certificate assessing the disability of the claimant at 35% on the observation that PW.1 was limping and he was unable to sit and squat on the floor due to restrictions of the knee movements. He also observed that the claimant cannot attend works as normal persons. He assessed the surgery charges for removal of implants at Rs.25,000/- and issued Ex.A.9 certificate. Perusal of the award would show that though the Tribunal accepted the evidence of PWs.1 and 2 to the effect that PW.2 treated him and performed surgery but curiously did not accept their evidence regarding PW.1 suffering 35% disability on two main grounds.
a) Firstly, for two years after the discharge on 12.04.2008, the claimant did not approach PW.2 with any complaint and if he really suffered any disability and pain, he would not have kept quite without taking treatment from PW.2. I am afraid, this observation of the Tribunal is not correct. It is quite common in Orthopedic cases that a fractured bone which was operated will take sometime to give desired results. It is only after sometime one can know whether it is properly united or mal-united. Similarly, the pain may not develop immediately after surgery but it may develop after sometime. So merely because PW.1 did not approach PW.2 for a period of two years, that does not mean that he had not suffered any disability. He might have approached PW.2 after he was getting pain and restriction in movement of his right leg. So the conduct of PW.1 and the evidence of PW.2 cannot be discarded on this ground.
b) Secondly, the Tribunal observed that the claimant has not obtained disability certificate from Medical Board and so Ex.A.6 certificate issued by PW.2 cannot be believed. This observation of the Tribunal is also not correct in view of the precedential law to the effect that any qualified doctor can issue disability certificate.
[1]
i) In Raj Kumar vs. Ajay Kumar and another , Hon’ble Apex Court has discussed the method and manner of appreciation of permanent disability for awarding compensation. Its observations are thus:
“12. Mere production of a disability 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.
Para 13. xxxx (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability.”
Thus the Apex Court has clearly laid down that the doctor who treated or the doctor who clinically examined the patient can issue the disability certificate.
[2]
ii) I n Syed Saleem vs. Abdul Shukur and another a learned Single Judge of this Court while relying upon a decision of the Division Bench of this High Court rendered in Charan
[3]
Singh vs. G. Vittal Reddy , observed thus:
“Though the above case arise under the Workmen's Compensation Act, the ratio laid down by the Division Bench can be made applicable to the instant case which arise under the Motor Vehicles Act, since under the Motor Vehicles Act and the rules made thereunder, there is no requirement to prove the disability by examining the very same doctor who treated the victim and to obtain such certificate from the very same doctor. The ratio can also be adopted since both the Acts are beneficial legislations.”
So from the above decisions, we can infer that disability certificate can be issued not only by the doctor who treated the patient but also by any qualified doctor. In that context, it is equally clear that disability certificate need not necessarily be issued by a Medical Board always. So the observations on which the Tribunal rejected the disability of claimant, cannot be countenanced. Hence now compensation for the loss of earning power due to disability has to be assessed basing on the evidence on record. As per PW.2, due to restriction of movement in right knee, the claimant suffered 35% disability. It is the physical disability. Having regard to the occupation of the claimant i.e, electrician, his functional disability is fixed at 10%. The Tribunal fixed his notional income at Rs.4,000/- p.m. His annual income comes to Rs.48,000/-. Having regard to his age, ‘13’ is selected as multiplier. By multiplying his annual income with ‘13’, we will arrive at his total earnings which is Rs.6,24,000/- (Rs.48,000/- x 13). His disability being 10%, compensation comes to Rs.62,400/- (Rs.6,24,000/- x 10%).
1 0 ) Then regarding future medical expenditure, the assessment given by PW.2 is only an estimate, hence an amount of Rs.10,000/- will meet the ends of justice in my view. Thus the total compensation payable to the claimant under different heads can be stated as below:
Medical expenditure and extra nourishment Rs.
40,000/-
Transportation charges Rs.
3,000/-
Damage to clothes and scooter Rs.
1,000/-
Loss of past income Rs.
15,000/-
Pain and suffering Rs.
20,000/-
Loss of earning power due to disability Rs. 62,400/-
Future medical expenditure Rs. 10,000/-
Total Rs.1,51,400/-
So the compensation is enhanced by Rs.72,400/- (Rs.1,51,400/- minus Rs.79,000/-).
11) In the result, this appeal is partly allowed and ordered as follows:
a) The compensation is enhanced by Rs.72,400/- with proportionate costs. The enhanced compensation amount shall carry interest at 7.5% p.a from the date of O.P till the date of realization.
b) The respondents are directed to deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out against them.
c) No order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 13.06.2014
Note: L.R. Copy to be marked: YES/NO scs
[1] 2011 ACJ 1 (SC)
[2] 2007 ACJ 491 (AP)
[3] 2003 (4) ALD 183