Dr.Madhu P vs K.Dileep Kumar on 24 April, 2012

[Cites 1, Cited by 1]

Kerala High Court

Dr.Madhu P vs K.Dileep Kumar on 24 April, 2012

This appeal arises out of the award passed by the Motor Accidents Claims Tribunal, Thrissur dated 24.04.2012 in O.P.(MV)No.1390 of 2004, a claim petition filed by the appellant/claimant under Section 166 of the Motor Vehicles Act, 1988 claiming compensation on account of the injuries sustained in a motor accident which occurred on 07.01.2004, while he was driving a motor car bearing Reg.No.KL-8/R-8610. At the place of accident, the car was hit by a tipper lorry bearing Reg.No.KL- 9/G-927 owned and driven by respondents 1 and 2 respectively and insured with the third respondent. As a result of the accident, the appellant/claimant sustained serious injuries. Alleging that the accident occurred due to the rash and negligent driving of the tipper lorry by the second respondent driver, claim petition was filed before the Tribunal claiming a total compensation of Rs.12,39,500/- under different heads.

2. Before the Tribunal, the said claim petition was tried along with connected matter. On the side of the claimants, Exts.A1 to A28 were marked. The case diary and medical bill were marked as Exts.X1 and X2. M.A.C.A.No.1906/2012 2 The doctor who issued Ext.A10 disability certificate was examined as PW1 and the appellant/claimant was examined as PW2. On the side of the respondents, a copy of the insurance policy was marked as Ext.B1. Respondents have not chosen to adduce any oral evidence.

3. After considering the materials and evidence on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the tipper lorry by the second respondent driver. Since the said vehicle was covered by a valid insurance policy, the third respondent insurer was held liable to indemnify the first respondent owner. Under different heads, the Tribunal awarded a total compensation of Rs.5,41,941/-, which was rounded to Rs.5,42,000/-, and directed the third respondent insurer to deposit the said amount before the Tribunal, together with interest at the rate of 8% per annum from the date of the petition till realisation, with proportionate cost.

4. Dissatisfied with the quantum of compensation awarded by the Tribunal under different heads, the appellant/claimant is before this Court in this appeal.

5. We heard the learned counsel for the appellant/claimant and also the learned counsel for the third respondent insurer.

6. The sole issue that arises for consideration in this appeal is as to whether the appellant/claimant is entitled for enhancement of the M.A.C.A.No.1906/2012 3 compensation awarded by the Tribunal under different heads.

7. The accident occurred on 07.01.2004 and at the time of accident, the appellant was aged 36 years. He claimed a monthly income of Rs.20,000/- as a Urologist and a further sum of Rs.15,000/- from private practice. However, no reliable materials were placed before the Tribunal to prove his income from profession, as on the date of accident. The appellant has not chosen to produce his income tax return for the relevant period. Instead, he produced a certificate in Form 16A regarding deduction of tax at source for the period from 01.11.2004 to 31.3.2005. In the absence of any reliable materials the Tribunal fixed his monthly income notionally at Rs.10,000/-, for the purpose of assessing compensation under different heads.

8. The learned counsel for the appellant would point out that, the appellant got admission for MBBS, MS and MCH at the Government Medical College, Kozhikode, which would show that he was a remarkably brilliant student. The learned counsel would also point out that, considering the qualifications possessed by the appellant, the monthly income claimed was not on a higher side, which ought to have been accepted by the Tribunal.

9. From the documents marked as Exts.A27 and A28, we find that the appellant took MBBS in the year 1991; MS (General Surgery) M.A.C.A.No.1906/2012 4 in the year 1995; and MCH (Genito-Urinary Surgery) in the year 1999 from Calicut University. Considering the fact that the appellant was a Urologist at the time of accident, who took MCH (Genito-Urinary Surgery) in the year 1999, we deem it appropriate to re-fix his monthly income notionally at Rs.20,000/-, for the purpose of assessing compensation under different heads.

10. The injuries sustained by the appellant, as borne out from medical records, read thus:-

"Type III A open supra condylar fracture with inter condylar extension with bone loss right femur, soft tissue injury right forearm, crushed wound dorsal aspect of right forearm, multiple bodily injuries."

As a result of the injuries sustained in the accident, the appellant had undergone inpatient treatment for a period of 40 days, which is evident from medical records.

11. In Ext.A10 disability certificate, the percentage of permanent disability has been certified as 19%. Ext.A10 disability certificate stands proved by the oral testimony of PW1 doctor who issued the same. The manner in which PW1 Doctor assessed the percentage of disability as 19% is discernible from Ext.A10 and also from his oral testimony. During cross examination, PW1 deposed that M.A.C.A.No.1906/2012 5 future surgery is necessary. PW1 ruled out the possibility of any variation in the percentage of disability with the removal of implants. However, the Tribunal scaled down the percentage of disability to 15% stating that PW1 Doctor is familiar with the appellant/claimant because of his profession and earlier acquaintance. The reason stated as above, for scaling down the percentage of disability to 15%, is per se arbitrary and illegal, which cannot be sustained in law. In the absence of anything brought out during the cross examination of PW1 Doctor to discredit his version regarding assessment of permanent disability at 19% in Ext.A10 disability certificate, the Tribunal committed a grave error in scaling down the percentage of disability to 15%. In the result, we hold that the appellant is entitled for payment of compensation under the head disability, taking the percentage of permanent disability as 19%, as certified in Ext.A10 disability certificate.

12. The compensation awarded by the Tribunal under different heads reads thus;

              Head of claim        Amount claimed      Amount awarded

       Loss of earnings (Total)        90000/-           120000/-

       Medical and miscellaneous       50000/-           113941/-
       expenses

       Bystander expenses              18000/-            6000/-

       Transportation expenses          3500/-            5000/-

       Pain and sufferings             30000/-           15000/-

M.A.C.A.No.1906/2012               6




              Head of claim       Amount claimed   Amount awarded

      Disability                     250000/-          270000/-

      Loss    of amenities  and      25000/-           12000/-
      inconvenience

      Total                                            541941/-

      Rounded to                                       542000/-

13. Towards loss of earning, the Tribunal awarded a sum of Rs.1,20,000/-, at the rate of Rs.10,000/- for a period of 12 months. Considering the nature of the injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the Tribunal is justified in granting loss of earning for a period of 12 months. Since we have re-fixed the monthly income of the appellant notionally at Rs.20,000/-, the compensation under this head is re- worked as Rs.2,40,000/- (20,000x12), resulting an additional compensation of Rs.1,20,000/-.

14. Towards medical expenses, the Tribunal awarded a sum of Rs.1,13,941/- covered by Exts.A23 and X2 medical bills. The compensation awarded by the Tribunal under the said head represents just and reasonable compensation, which requires no enhancement in this appeal.

15. Towards future treatment, no amount was awarded by the Tribunal. When PW1 Doctor who issued Ext.A10 disability certificate was M.A.C.A.No.1906/2012 7 examined, he has deposed that removal of implants may not vary the percentage of disability. Therefore, it is evident that the implants are yet to be removed. In such circumstances, we deem it appropriate to grant a sum of Rs.20,000/- towards future medical expenses, which will carry interest at the rate of 8% per annum only from the date of this judgment till realisation.

16. Towards bystander's expenses, the Tribunal awarded a sum of Rs.6,000/-. However, no amount was awarded under the head extra nourishment. The appellant had undergone inpatient treatment for a period of 40 days. Since the accident is of the year 2004, the appellant is entitled for payment of compensation under the head bystander's expenses at the rate of Rs.150 per day and that under the head extra nourishment at the rate of Rs.100/- per day. The appellant has already been compensated adequately under the head bystander's expenses, by awarding Rs.6,000/- (150x40). Under the head extra nourishment he will be entitled for a compensation of Rs.4,000/- (100x40).

17. No amount was awarded by the Tribunal under the head damage to clothing. Since the accident is of the year 2004, we deem it appropriate to grant a sum of Rs.750/- under this head.

18. Towards pain and suffering, the Tribunal awarded a sum of Rs.15,000/-. Considering the nature of injuries sustained and the M.A.C.A.No.1906/2012 8 treatment the appellant had undergone, as borne out from medical records, we deem it appropriate to re-fix the compensation under this head as Rs.30,000/-, resulting an additional compensation of Rs.15,000/-.

19. Towards loss of amenities and inconveniences, the Tribunal awarded a sum of Rs.12,000/-. Considering the nature of the injuries sustained and the disability that has arisen therefrom, as certified in Ext.A10 disability certificate, we deem it appropriate to re-fix the compensation under this head as Rs.25,000/-, resulting an additional compensation of Rs.13,000/-.

20. Under the head disability, the Tribunal awarded a sum of Rs.2,70,000/-, taking the monthly income notionally as Rs.10,000/-, applying the multiplier of '15' and the percentage of disability as 15%. Since we have re-fixed the monthly income of the appellant notionally at Rs.20,000/- and held that he is entitled for payment of compensation under the head disability, taking the percentage of permanent disability as 19%, as certified in Ext.A10 disability certificate, the compensation payable under this head is re-worked as Rs.6,84,000/- (20,000x12x15 x19/100), resulting an additional compensation of Rs.4,14,000/-.

21. In the result, the appellant/claimant will be entitled for an additional compensation of Rs.5,86,750/- (1,20,000+20,000+4,000+ M.A.C.A.No.1906/2012 9 750+15,000+13,000+4,14,000) in this appeal, which will carry interest at the rate of 8% per annum from the date of the petition till realisation, excluding a sum of Rs.20,000/- granted towards future medical expenses, which will carry interest at the rate of 8% per annum only from the date of this judgment till realisation.

22. Since the insurance coverage of the offending vehicle is not in dispute, the third respondent insurer shall deposit the said amount before the Tribunal within two months from the date of receipt of a certified copy of this judgment.

Appeal is disposed of as above. No order as to costs.

Sd/-

C.T. RAVIKUMAR (JUDGE) Sd/-

ANIL K. NARENDRAN (JUDGE) spc/

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