Kerala High Court
Sathish Kumar vs Union Of India on 9 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 30TH DAY OF MAY 2016/9TH JYAISHTA, 1938
MFA.No. 12 of 2005 ( )
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AGAINST THE JUDGMENT IN OA 44/2001 of RAILWAY CLAIMS TRIBUNAL,
ERNAKULAM DATED 09-08-2004
APPELLANT/APPLICANT::
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SATHISH KUMAR, S/O RAJAN
1/124 B3 YEDAKKAD, NILGIRIS (T. NADU).
BY ADVS.SRI.B.GOPAKUMAR
SRI.ASWIN GOPAKUMAR
SRI.ANWIN GOPAKUMAR
SMT.CHINCY GOPAKUMAR
RESPONDENT/RESPONDENT::
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UNION OF INDIA, REP. BY THE
GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI.
R1 BY ADV. SRI.SUNIL NATH
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
30-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
C.T.RAVIKUMAR &
K.P.JYOTHINDRANATH, JJ.
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M.F.A.No.12 OF 2005
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Dated this the 30th day of May , 2016
JUDGMENT
Ravikumar, J.
This appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987 against the judgment dated 9.8.2004 in O.A.No.44/2001 of the Railway Claims Tribunal, Ernakulam Bench. The appellant was the applicant therein. He was a passenger in Train No.6602 ( Mangalore-Chenni Express). It met with an accident when it reached Kadalundi on 22.06.2001. The appellant sustained severe bodily injuries in the accident. It is to get compensation for such injuries that he filed the above mentioned original application seeking a total compensation of Rs.5 lakhs.
2. The Tribunal after evaluating the evidence on record and considering the rival contentions passed the impugned award for a total compensation of Rs.1,50,000/- with interest @ 6% per annum from the date of petition viz.9.10.2001 till payment. This appeal has MFA No.12/2005 2 been preferred seeking enhancement of the compensation raising contentions that the Tribunal had failed to take note of the major scheduled injury sustained to the appellant in the accident and the said lapse from the part of the Tribunal resulted in deprivation of the due compensation.
3. We have heard the learned counsel for the appellant and the learned counsel for the respondent.
4. Evidently, to establish the claim, besides getting marked Exts.A1 to A13, the appellant got himself examined as PW1. On the side of the respondents, no evidence, either oral or documentary was produced. The appellant had produced Exts.A2 to A8 to reveal the extent of injuries sustained and the treatment underwent by him. Ext.A3 would reveal that the appellant sustained the following injuries :
( L ) Sub Trochantric L4 Burst Foreign body & laceration outer canthus (L) eye Lacerated wounds (L) forehead ( R) wrist & hand MFA No.12/2005 3
5. A scanning of the impugned judgment would reveal that taking note of the injuries sustained, as revealed from Ext.A3, the Tribunal found that the appellant had sustained two scheduled injuries, which fall respectively under items 33 and 34 of Part III of the schedule framed under Rule 3 of the Railway Accidents and Untoward Incidents ( Compensation) Rules, 1990 ( for short 'the Rules' only). The Tribunal granted a total compensation of Rs.72,000/- for the injuries falling under Section 33 and 34 of Part III of the schedule. Over and above the same, obviously, the Tribunal granted another Rs.78,000/-. At the same time, a scanning of the award would reveal absence of any discussion regarding the details of the injuries compensated with Rs.78,000/-. True that, it is stated that apart from the injuries falling under items 33 and 34 of Part III of the schedule, the appellant had also sustained injury to the forehead, wrist and left eye. Evidently, it is taking note of and treating them as non-scheduled injuries that the Tribunal granted Rs.78,000/- in addition to Rs.72,000/-, for the scheduled injuries. It is in the said circumstances that award was passed by the Tribunal for a total compensation of Rs.1,50,000/- as MFA No.12/2005 4 noticed above.
6. While considering the contention of the appellant regarding the inadequacy of the compensation granted, it is pertinent to note that regarding the injury sustained to the spine ( L4), the appellant had made a mention in paragraph 8 of the claim petition, in the proof affidavit as also in the body of the appeal. Ext.A3 would also reveal that, in the accident, the appellant had sustained injuries on the spine. In fact, it is noted in Ext.A3 that he sustained L4 burst. It is evident from the impugned award that the question whether the said injury falls under any of the scheduled injuries was not pointedly considered by the Tribunal. A perusal of Part III of the schedule attached to Rule 3 of the Railway Accidents and Untoward Incidents ( Compensation) Rules, 1990 would reveal that item 26 deals with such injuries. Item 26 of the said schedule is :
" 26. Fracture of spine without paraplegia".
The amount of compensation that can be granted for such an injury is Rs.1,20,000/- going by the schedule. In this context, it is relevant to refer to the term " burst". According to Taber's Cyclopedic MFA No.12/2005 5 Medical Dictionary, the terms " burst" means :
" burst - A burst fracture is similar to a compression fracture but is typically more severe and involves displacement of the bony fragments."
7. We have already taken note that the Tribunal accepted the medical certificate produced by the appellant and it is thereafter that he was granted compensation for injuries which fell under items 33 and 34 of Part III of the schedule framed under Rule 3 of the Rules. Therefore, we are of the view that any injury which is noted in the very same document if falls under any item of the schedule is bound to be taken into account for the purpose of awarding compensation. A party who sustained injuries in an untoward incident may not be aware of the nature of grant of compensation and hence, may not specifically make a claim for a particular injury which is, in fact, a scheduled injury. Hence, if the medical records reveal sustainment of scheduled injury and if there is no reason to doubt it in terms of Section 127 of the Railways Act, 1989 it has to be taken that it is the bounden duty of the Tribunal to determine the rate of compensation payable for that injury. MFA No.12/2005 6 Though going by Taber's Cyclopedic Medical Dictionary the letter 'L' stands as abbreviation for 'Lumbar Nerves', the term 'burst' employed in Ext.A3 and its meaning going by the said dictionary would undoubtedly indicate that what was sustained is a burst fracture of 4th Lumbar vertebra of the spine. In fact, what is noted in Ext.A3 is 'L4 burst'. The term 'lumbar' means 'pertaining to or situated near the loins '. When the injury sustained was a fracture it is certain that it was not sustained on a lumbar nerve as there is no question of sustainment of fracture on a nerve. Thus, indubitably, the fracture sustained was on the lumbar vertebra (4th lumbar vertebra) of the backbone. In shot, it is evident that, what is disclosed from Ext.A3 is a fracture on the 4th lumbar vertebra of the spine. There is no case for the appellant that owing to such injuries he became a paraplegic. In such circumstances, the injury has to be treated as one falling under Item 26 of Part III of the schedule under Rule 3 of the Rules viz., "fracture of spine without paraplegia". The compensation payable for the said scheduled injury is Rs.1,20,000/-.
8. The learned counsel appearing for the respondent submitted MFA No.12/2005 7 that while considering the entitlement of the appellant for the full amount of Rs.1,20,000/-, in the light of the amounts already granted, certain aspects have to be looked into. It is submitted that the first proviso to sub rule 3 of Rule 3 of the Rules is relevant in this context. It deals with the amount of compensation payable in respect of any injury other than injuries specified in the schedule or referred to in sub rule 2 and resulting in pain and suffering. True that going by the first proviso, if more than one injury is caused by the same accident, compensation is payable in respect of each of such injury. But at the same time, second proviso carries a rider. Going by the same, the maximum amount of compensation that can be granted in respect of all such injuries which falls under sub rule 3 of Rule 3 of the Rules is Rs.40,000/-. In such circumstances, it is evident that over and above Rs.72,000/- in respect of the injuries falling under Items 33 and 34, the Tribunal has already granted an amount of Rs.38,000/- in excess for the injuries which falls under sub section 3 of section 3. In this context, it is also to be noted that the Tribunal had not entered into any finding that the appellant had sustained an injury which falls under Sub Section MFA No.12/2005 8 2 which deprive him of the capacity to do any work. Certainly, the aforesaid injury viz., fracture of 4th lumbar vertebra would not deprive him of the capacity to do any work. In fact, the appellant did not establish such a case. Taking into account all such circumstances, it is evident that the Tribunal had not assigned any reason for granting compensation in excess of Rs.1,12,000/- i.e. for the injuries falling under items 33 and 34 in Part III of the schedule appended to the Railway Accidents and Untoward Incidents ( Compensation) Rules, 1990 and also under Sub Section 3 of Section 3. But we have already found in the light of Ext.A3 that the appellant had also sustained a scheduled injury which falls under item No. 26 of Part III of the Schedule to Rule 3 and the compensation payable thereunder is Rs.1,20,000/-.
In such circumstances, the appellant is entitled to Rs.1,20,000/- under the said head. But taking into account the fact that the appellant was already granted an amount of Rs.38,000/- in excess, he will be entitled to get an additional amount of Rs.82,000/-. The said amount is awarded. The said additional compensation amount of Rs.82,000/- MFA No.12/2005 9 to which the appellant is entitled by virtue of this judgment will carry interest @ 6% per annum from the date of petition i.e. 9.10.2001 till payment. The respondent is directed to deposit the enhanced amount together with interest thereon within a period of three months from the date of receipt of a copy of this judgment, failing which, the entire amount remaining to be paid will carry interest @ 8% per annum from the date of petition. There will be no order as to costs.
C.T.RAVIKUMAR, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.
31/05/2016