Jammu & Kashmir High Court
Mohan Lal vs Oriental Insurance Co. Ltd. And Another on 10 August, 2016
Author: Ramalingam Sudhakar
Bench: Ramalingam Sudhakar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CIMA No. 199 OF 2007 AND CIMA No. 200 OF 2007 AND CIMA No. 201 OF 2007 Mohan Lal Roshan Lal Jagdish Raj Petitioners Oriental Insurance Co. Ltd. and another. Respondent !Mr. Ankesh Chandel, Advocate ^ Mr. D.S.Chauhan, Advocate with Miss. Sheeba Sethi & Damini Singh Chauhan, Researchers. Honble Mr. Justice Ramalingam Sudhakar, Judge Date: 10.08.2016 :J U D G M E N T :CIMA No.199/2007
Mohan Lal v. Oriental Insurance Co. Ltd. and another.
CIMA No.200/2007Roshan Lal v. Oriental Insurance Co. Ltd. and another.
CIMA No.201/2007Jagdish Raj v. Oriental Insurance Co. Ltd. and another.
CIMA No.202/2007Vishal v. Oriental Insurance co. Ltd. and anr.
CIMA No.203/2007Kamla Devi v. Oriental Insurance Co. Ltd. and anr.
CIMA No.205/2007Sunita Rani v. Oriental Insurance Co. Ltd. and anr.
CIMA No.206/2007Surinder Singh v. Oriental Insurance Co. ltd. and anr.
CIMA No. 207/2007Durga Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.208/2007Vidya Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.209/2007Rekha Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.210/2007Ranjeet Singh v. Oriental Insurance Co. ltd. and anr.
CIMA No.211/2007Satish Kumar v. Oriental Insurance Co. ltd. and anr.
CIMA No.212/2007Janak Dulari v. Oriental Insurance Co. ltd. and anr.
CIMA No.213/2007Thoru Ram v. Oriental Insurance Co. ltd. and anr.
CIMA No.214/2007Khemo Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.215/2007Pawan Kumari v. Oriental Insurance Co. ltd. and anr.
CIMA No.216/2007Nirmal Kumari v. Oriental Insurance Co. ltd. and anr.
CIMA No.217/2007Gangi Ram v. Oriental Insurance Co. ltd. and anr.
CIMA No.218/2007Rakesh Kumar v. Oriental Insurance Co. ltd. and anr.
CIMA No.219/2007Anita Rani v. Oriental Insurance Co. ltd. and anr.
CIMA No.220/2007Ajmer Lal v. Oriental Insurance Co. ltd. and anr.
CIMA No.221/2007Bimla Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.222/2007Kanchan Bala v. Oriental Insurance Co. ltd. and anr.
CIMA No.223/2007Veena Devi v. Oriental Insurance Co. ltd. and anr.
2 CIMA No.224/2007Churu Ram v. Oriental Insurance Co. ltd. and anr.
CIMA No.225/2007Sunita Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.226/2007Preeto Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.235/2007Sunita Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.D-28/2006 Pummy Devi v. Oriental Insurance Co. ltd. and anr.
CIMA No.494/2013Suram Chand v. Oriental Insurance Co. ltd. and anr.
Coram:
Honble Mr. Justice Ramalingam Sudhakar, Judge Appearing Counsel:
For the appellant(s) : Mr. Ankesh Chandel, Advocate. For the respondent(s) : Mr. D.S.Chauhan, Advocate with Miss. Sheeba Sethi & Damini Singh Chauhan, Researchers. i/ Whether to be reported in : Yes Net ii/ Whether to be reported in : Yes Digest/Journal
1. Since all these appeals are preferred against a common award of the Motor Accidents Claims Tribunal, Jammu and have arisen from a common road accident, the same are taken up together and disposed by a common order.
2. The brief facts which led to the filing of these appeals are that on the fateful day of 19th September, 1996, a bus bearing registration No.JKQ/3491 carrying a Barat was on its way from village Kangri to Baajnueu. When it reached near Beri Pattan Morh, due to rash and negligent driving, the bus rolled down into a deep gorge, resulting in killing of number of passengers and causing injuries to others. Some injured passengers later on succumbed to their injuries. The driver of the offending vehicle also died in the said accident. The offending vehicle/bus was owned by respondent No.2 and insured with respondent No.1. Some claim petitions were instituted in Motor Accidents Claims Tribunal, Rajouri and those claim petitions were disposed of on 31.05.1999 and amounts awarded stand satisfied by the insurance company.3
Appellants herein, including some other persons, had filed claim petitions before Motor Accident Claims Tribunal, Jammu, (for short, the Tribunal) seeking various amount of compensation on the grounds mentioned in the claim petitions. The 2nd respondent failed to contest the claim petitions and the 1st respondent-Insurance Company in its objections alleged that the vehicle was being driven by the person not possessing a valid driving license and the offending vehicle had been sold before the alleged accident by the insured, as such, the insurance company is not liable for any payment. The claimants had appeared in the witness box and examined Pawan Kumar, Preetam, Chaman Lal, Ashok Kumar, Badri Nath Raina, Medical Record Keeper, Dr. Anil Gupta and Dr. Rakesh Sharma in support of their claims.
On the contrary, the Insurance Company had examined Madan lal, the then Assistant Divisional Manager, Oriental Insurance Company. The Tribunal after hearing the counsel appearing for the parties, considering the evidence led by the parties and after perusing the records decided the claim petitions by a common order dated 31.05.2004. Dissatisfied with the order of the Tribunal, the appellants have filed these appeals for enhancement of compensation and grant of compensation.
CIMA No.199/2007The claim of the claimant/appellant before the Tribunal was that he was 16 years of old at the time of accident and was a student. It was alleged that in the accident, the appellant received multiple injuries and his right leg and right hand were badly crushed, for which he remained in the Sunderbani Hospital for eight days. He placed on record OPD ticket indicating that the appellant was admitted in the hospital on the date of accident and was given first-aid and some medicines were prescribed. A certificate issued by a Medical Officer, Govt. Indian System Dispensary, Sunderbani, was placed on record of the Tribunal, 4 showing that the patient remained under treatment as a case of ingibal luxplicbetic (Trauma) due to accidental injury w.e.f. 24.09.1996 to 30.09.1996. A disability certificate issued by Dr. Anil Gupta of GMC, Jammu was also placed on record indicating that on examining the claimant/ injured, a case of soft tissue injury of right elbow and thigh with a mild stiffness of right elbow movement was found, resulting in permanent disability of 5%. In this case the Tribunal has awarded a total compensation of Rs.15,000/-, which includes the expenses for treatment, special diet, etc. as well as on account of pain and suffering along with interest at the rate of 9% per annum from the date of filing of the claim petition pendente lite till liquidation. The appellant has filed the present appeal seeking enhancement of the award stating that the Tribunal has ignored the fact that the appellant sustained 5% permanent disablement due to the grievous injuries sustained by him in his right leg and right hand, which were badly crushed, on account of which he was hospitalized and has become a disabled person. It is also stated that the appellant, who was a student at the time of accident, after completing his graduation would have been absorbed in any state government department and would have earned Rs.5,000/- per month at least and therefore loss of future income is Rs.3.00 lacs, but the Tribunal failed to grant any loss of amenities/loss of future income.
After hearing learned counsel for the parties, perusing the award and considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered location and residence of the injured, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment Rs.2,500/-
2. Special Diet and Transport charges Rs.2,500/-
3. Pain and Suffering Rs.5,000/-
4. Loss of amenities of life Rs.15,000/-
Total Rs.25,000/-
5Accordingly, appeal is allowed in the above terms.
CIMA No.200/2007The case of the claimant/appellant before the Tribunal was that he was 23 years old on the date of accident and earning Rs.2500/- per month by working as a band master. According to the appellant, his left hand was badly crushed in the accident as a result of which he is having constant pain and is unable to bend his arm. The appellant has placed on record a disability certificate issued by Dr.Rakesh Sharma, indicating that the appellant suffered stiffness of left thumb joint with disability of 5%. The appellant appeared in the witness box and examined the doctor.
In this case the Tribunal held that the appellant/claimant is entitled to compensation as under:-
1 Cost of treatment/special diet Rs.2,000/-
2. For boarding and lodging Rs.1,000/-
3. For travelling charges Rs. 500/-
4. For pain and suffering Rs.5,000/-
Total Rs.8,500/-
The appellant seeks enhancement in the compensation awarded by the Tribunal by stating that the Tribunal had ignored the fact that the appellant sustained 5% permanent disablement in his left hand due to which, the appellant, who was a Band Master and earning Rs.2,500/- per month, is unable to perform his nature of job after the accident and failed to grant any loss of amenities of life and loss of future income.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal, the appellant is held entitled to compensation as under:-
61 Cost of treatment/special diet Rs.3,000/-
2. For boarding and lodging Rs.2,000/-
3. For travelling charges Rs.1,500/-
4. For pain and suffering Rs.7,500/-
Total Rs.14,000/-
This appeal is accordingly allowed by modifying the award of the Tribunal to the above extent.
CIMA No.201/2007The claim of the claimant/appellant before the Tribunal was that he was teacher in Education Department and was 38 years old when he was injured in the accident. He had claimed that his neck of scapula-LT was fractured with soft tissue injuries on both knees and he remained hospitalized from 19.09.1996 to 27.09.1996. A disability certificate issued by Dr. Rajesh Gupta was also placed on record of the Tribunal. The said certificate states that the appellant is having permanent stiffness of left shoulder and left knee with aggregate disability of 10%.
In this case, the Tribunal after discussing the evidence adduced before it, found the claimant entitled to following compensation:-
1. Cost of medicines Rs.5,000/-
2. Boarding and lodging expenses Rs.5,000/-
3. Transport charges Rs.3,000/-
4. Pain and suffering Rs.10,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.33,000/-
The claimant/appellant is seeking enhancement of compensation by stating that the Tribunal has awarded the aforementioned compensation ignoring the fact that the appellant sustained 10% permanent disablement in his left shoulder, left knee and fracture of neck scapula and is unable to go for long 7 sitting. It is stated that the appellant is a Govt. Teacher. It is pleaded that as against Rs.30,000/- claimed as medical expenses only Rs.5,000/- has been granted and Rs.10,000/- has been granted for loss of amenities of life but the Tribunal had failed to grant any loss of future income. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of medicines Rs.5,000/-
2. Boarding and lodging expenses Rs.7,500/-
3. Transport charges Rs.3,000/-
4. Special Diet Rs.2,500/-
4. Pain and suffering Rs.15,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.43,000/-
CIMA No.202/2007The claim of the claimant/appellant before the Tribunal was that he was 20 years old and was earning Rs.1,000/- per month by private tuition and was preparing for B.Sc. final examination, at the time of accident. It was alleged that appellant received grievous injuries on head & right side of his face resulting in loss of vision of right eye. The appellant had also placed on record a permanent disability certificate issued by Dr.Rakesh Sharma indicating that the petitioner suffered injury to right shoulder to the extent of 15%. The Tribunal has dismissed the claim petition by holding that neither the appellant appeared in the witness box nor examined any witness. It is also stated that the appellant has not produced or summoned the record of the hospital to establish the fact that he remained admitted in hospital. It is also stated that the permanent disability certificate placed on record by the appellant is with respect to the injury of right shoulder to the extent of 15% but according to the 8 appellant he has suffered injuries to his head and face causing loss of vision, which fact the appellant has failed to prove.
The appellant has approached this Court for setting aside the order of the Tribunal and for grant of compensation on the ground that the appellant sustained 15% permanent disablement due to grievous nature of injuries sustained by him in his right shoulder, head injury and loss of vision of right eye, for which he was hospitalized w.e.f. 19.09.1996 to 03.10.1996. After hearing learned counsel for the parties and perusing the award it is found that the Tribunal was justified in dismissing the claim petition because neither the appellant appeared before the Tribunal nor examined any witness in support of his claim. Mere filing of the claim petition is not sufficient for grant of compensation. This appeal is accordingly dismissed.
CIMA No.203/2007The claim of the claimant before the Tribunal was that he was 40 years old and was housewife at the time of accident. It was alleged in the claim petition that in the accident her both legs and arms were fractured, which resulted in permanent disability. She had claimed compensation of Rs.10.00 lacs on various heads. She had also placed on record a permanent disability certificate indicating that the petitioner has been suffering stiffness and pain of left shoulder and left elbow due to fracture of left humerus and permanent disability was assessed to the extent of 25%.
Tribunal has awarded Rs.40,000/- as compensation under various heads, details of which are as under:-
1. Cost of treatment Rs.10,000/-
2. Transport Charges Rs.5,000/-
3. Pain and suffering Rs.10,000/-
4. Loss of amenities of life Rs.15,000/-
Total Rs.40,000/-
9The appellant is before this Court seeking enhancement of compensation. It is stated that the Tribunal has ignored the fact that the appellant, who is a housewife, sustained 25% permanent disablement in left shoulder and left arm was fractured due to which she is unable to perform even domestic work and has to depend upon others and has granted only a sum of Rs.15,000/- as loss of amenities of life and failed to grant any loss of future income which is a glaring mistake.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment Rs.15,000/-
2. Transport Charges Rs.7,500/-
3. Pain and suffering Rs.15,000/-
4. Loss of amenities of life Rs.17,500/-
Total Rs.55,000/-
This appeal is accordingly allowed in the above terms modifying the award of the Tribunal to the above extent.
CIMA No.205/2007In this case the claimant-appellant claimed compensation on account of suffering of multiple injuries all over her body in the accident, which resulted in the fracture of her both arms and left foot, for which she was hospitalized in Sunderbani Hospital for five days. The appellant also placed on record a disability certificate issued by Dr. Rakesh Sharma, Registrar Ortho-IV, GMC, Jammu, which refers stiffness of right shoulder and left hip of the appellant amounting to permanent physical disability to the extent of 20%. It is recorded by the Tribunal that the appellant has failed to prove that there was fracture of both arms and the leg as claimed by her. According to the Tribunal, it appears that the disability certificate was issued only after 10 examining the appellant and without going through the record of Govt. Hospital Sunderbani where the appellant was treated. There was no mention that appellant was an old case of fracture of shoulder and left foot and only it is mentioned that appellant is suffering from stiffness of right shoulder and left hip and the age of the injury has not been mentioned. It has been held that the appellant has suffered some minor injuries while travelling in the offending vehicle for which she was treated and taking into account the age of the appellant, type of treatment and the amount of pain and suffering suffered by the appellant, a total amount of Rs.10,000/- was awarded as compensation. Dissatisfied with the amount of compensation awarded by the Tribunal, the appellant is before this court seeking its enhancement. It is stated that the Tribunal has ignored the fact that the appellant sustained 20% permanent disablement due to fracture of both arms, shoulder and left foot for which she remained hospitalized for five days and was advised to attend the hospital for review due to which the appellant, who was a student, has become disabled permanently but the Tribunal granted a sum of Rs.10,000/- in total as against pain and suffering and cost of treatment etc. which is on lower side. Heard learned counsel for the parties and perused the award of the Tribunal.
The Tribunal was justified in granting Rs.10,000/- as compensation in a case where there is no material to show that it is an old case of fracture of both arms and the leg except a certificate issued by one Dr. Rakesh Sharma saying that there is stiffness of right shoulder and left hip of the appellant. This may not be correct because in the claim petition it was alleged that the appellant had suffered fracture of her both arms and left foot.
Accordingly, the appeal is dismissed and the award of the Tribunal stands confirmed.
11 CIMA No.206/2007The claimant-appellant was 14 years old and was a student at the time of accident. The appellant filed the claim petition claiming that he sustained multiple injuries all over his body and grievous injuries to his left leg. His ribs were badly pressed and he was treated in Sunderbani Hospital up to 27.09.1996 and was under treatment till filing of the claim petition. It was claimed that the appellant has become crippled and is unable to perform his day to day work and cannot carry forward his studies due to pain. The appellant has placed on record a disability certificate issued by Dr. Rajesh Gupta of GMC wherein it was mentioned that at the time of examination on 14.05.1997 the appellant had soft tissue injury to left hip and left forearm resulting in stiffness of left hip. The permanent disability assessed was 10% but it was not explained that which limb of the appellant has been permanently disabled. The Doctor who issued the permanent disability certificate while appearing in the witness box has not clarified as to whether the stiffness of the pain is permanent in nature or soft tissue injuries can be termed also as permanent in nature. The doctor has also not deposed that petitioner had any bone injury. The Tribunal held that having suffering permanent disability to the extent of 10% as per doctor, still the appellant can perform routine work. After noticing the contradictions and shortcomings, the Tribunal concluded that the certificate produced cannot be relied upon as the injuries mentioned in the disability certificate do not find mention in the claim petition. The Tribunal held that the appellant while travelling in the offending vehicle has received minor injuries and an amount of Rs.10,000/- was granted as compensation.
The Tribunal was justified in granting Rs.10,000/- as compensation, because no material was placed to support the disability certificate of 10%, as it was only stated that there was soft tissue injury to left hip and left fore arm resulting in stiffness of left hip. This may not be correct as in the claim petition the appellant claimed that he received grievous injuries to his left leg and his 12 ribs were badly pressed. There is no need to enhance the compensation awarded by the Tribunal.
Accordingly, the appeal is dismissed and the award of the Tribunal stands confirmed.
CIMA No.207/2007In this case, the claimant/appellant claimed that she was of the age of 35 years on the date of accident and was earning Rs.1500/- per month by running a dairy farm and also working as agricultural labourer. It has been claimed that appellant received multiple grievous injuries, including injuries on left side of head skull, right fore arm, left hand and left arm. She was given first aid in Sunderbani Hospital and was referred to GMC, Jammu. The appellant placed on record a disability certificate issued by Dr. Anil Gupta, Registrar of GMC, Jammu which refers to leganonitus injury to lumber spine and multiple soft tissue injuries, causing persistent pain to lumber spine and restriction of motion at lumber spine which is permanent in nature to the extent of 11%. The appellant has not produced/ examined the doctor who had initially treated her at Sunderbani hospital and it appears that the disability certificate was issued without examining the medical record of Sunderbani Hospital. After noticing the contradiction and shortcomings the Tribunal held that the disability certificate cannot be relied upon. The name of the appellant figures in the list of injured persons issued by the Police Station Sunderbani where FIR was registered. The appellant also deposed before the Tribunal that she had received injuries in the accident but not of serious nature. The Tribunal, taking into consideration the nature of injuries and duration of treatment, granted an amount of Rs.3,000/- on account of cost of medicines as well as expenses of attendants and Rs.5,000/- on account of pain and suffering, thus, an amount of Rs.8,000/- in total was granted in favour of the appellant as compensation. The appellant has approached this Court for enhancement of the compensation stating that the appellant who was possessing a good health at the 13 time of accident, due to negligent act of the driver of the offending bus, has become disabled woman and a certificate in this regard issued by the competent authority was duly proved before the Tribunal and the Tribunal has no jurisdiction to form its own opinion, which is a glaring mistake. After hearing learned counsel for the parties, considering the age of the injured, nature of injuries received, period of treatment, disability suffered, in modification of the award of the tribunal, the appellant is held entitled to compensation as under:-
1. Cost of medicines Rs.3000/-
2. Special Diet Rs.5,000/-
3. Pain and suffering Rs.10,000/-
4. Attendant, travelling & Boarding & Lodging charges Rs.5,000/-
Total Rs.23,000/-
This appeal is accordingly allowed in the above terms modifying the award of the Tribunal to the above extent.
CIMA No.208/2007In this case the claimant-appellant claimed that she was of the age of 45 years on the date of accident and was earning Rs.1000/- per month by working as tailor and doing embroidery work. She stated to have suffered multiple injuries on her body especially to leg and chest in the accident. In her statement before the Tribunal she deposed that she received injuries on chest, hip, foot and jaws due to which she cannot move her neck easily. A disability certificate dated 24.10.1997 was also placed on record. In the disability certificate it has been stated that appellant was suffering from pain and stiffness of lower back due to fracture of L-II vertebra causing permanent disability to the extent of 15%.
After noticing contradictions and shortcomings, the Tribunal came to the conclusion that the disability certificate cannot be relied upon. However, the Tribunal held that from the record it is made out that the appellant had sustained 14 some injury to her head and chest and she remained under treatment of doctors. The Tribunal after discussing the evidence and perusing the record, granted compensation in favour of the appellant, details of which is as under:-
1. Cost of treatment, boarding/lodging of the attendants.
Rs.10,000/-
2. Transport Charges Rs.10,000/-
3. Pain and suffering Rs.8,000/-
Total Rs.28,000/-
The appellant is before this Court seeking enhancement of compensation stating that the Tribunal has granted a meagre amount of Rs.28,000/- as compensation ignoring the fact that the appellant sustained permanent disablement to the extent of 15% in lower back due to fracture of L-II Vertebra due to which the appellant who was earning Rs.1000/- per month prior to the accident, has become disabled woman and has to depend upon other. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment, boarding/lodging of the attendants Rs.10,000/-
2. Transport Charges Rs.10,000/-
3. Pain and suffering Rs.13,000/-
4. Special Diet/ Extra nutrition Rs.5,000/-
Total Rs.38,000/-
This appeal is accordingly allowed in the above terms modifying the award of the Tribunal to the above extent.
CIMA No.209/2007The claimant/appellant, who was 12 years of age at the time of accident, had suffered multiple injuries over her body. Her left leg was badly crushed. After giving initial treatment, she was referred to GMC, Jammu where she 15 remained admitted from 19.09.1996 to 21.09.1996. Thereafter, she regularly remained under treatment as OPD patient. The claimant/appellant has also placed on record of the Tribunal a disability certificate, which shows that the appellant is suffering from shortening of left leg and stiffness in left ankle joint due to old fracture of both bones of left leg. The permanent disability has been assessed as 12%. The doctor who issued the disability certificate was examined by the appellant before the Tribunal to prove the disability certificate. The Tribunal observed that the claimant-appellant has succeeded in proving that she sustained permanent nature of impairment of left leg to the extent of 12% in the accident and after taking into consideration various factors granted compensation under various heads, detail of which is as under:-
1. Cost of treatment/special diet Rs.10,000/-
2. Boarding and lodging Rs.5,000/-
3. Travelling expenses Rs.5,000/-
4. Pain and suffering Rs.10,000/-
5. Loss of amenities of life Rs.20,000/-
Total Rs.50,000/-
Dissatisfied with the quantum of compensation, appellant has filed this appeal seeking enhancement of compensation on the ground that the Tribunal has ignored the fact that the appellant sustained 12% permanent disablement due to the injuries received in the accident and loss of amenities of life taking into account the permanent disablement of 12% should not be less than Rs.3.00 lac but the Tribunal has granted only Rs.20,000/- under this head which is on the lower side.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
161. Cost of treatment/special diet Rs.15,000/-
2. Boarding and lodging Rs.7,500/-
3. Travelling expenses Rs.7,500/-
3. Pain and suffering Rs.15,000/-
4. Loss of amenities of life Rs.20,000/-
Total Rs.65,000/-
This appeal is accordingly allowed in the above terms modifying the award of the Tribunal to the above extent.
CIMA No.210/2007The claimant/appellant, an ex-serviceman, who was 36 years old at the time of accident claimed before the Tribunal that he received multiple grievous injuries including facture of left arm and injury to head and left side of the body due to compression in the accident, which occurred due to the rash and negligent driving of the bus. It was further claimed that appellant received injuries on skull, chest, right forearm and left leg. It was also stated that other injuries have caused stiffness to the body of the appellant and he is not able to do his normal activities. Initially the appellant was treated at Sunderbani Hospital and thereafter referred to GMC where he remained hospitalized from 19.09.1996 to 25.09.1996. Thereafter appellant was directed to visit the hospital for follow-up check-up. Disability certificate was placed on record of the Tribunal, which shows that the petitioner has suffered permanent disability of 6%. The disability certificate was proved by Dr. Rakesh Sharma, who was examined by the appellant. In the claim petition, appellant claims that he was earning Rs.2,000/- to Rs.2500/- per month by doing agriculture and running a dairy farming after his retirement.
The Tribunal after considering various aspects of the claim, awarded compensation as under:-
171. Future loss of income Rs.25,000/-
2. Cost of treatment Rs.5,000/-
3. Expenses on boarding/lodging Rs.3,000/-
4. Pain and suffering Rs.5,000/-
5. Loss of amenities of life Rs.5,000/-
Total Rs.43,000/-
Dissatisfied with the quantum of compensation, the appellant has filed this appeal stating that he sustained 6% permanent disablement due to fracture in left arm for which the appellant, who was an ex-serviceman and also running dairy farm and used to earn Rs.2,000/- to Rs.2,500/- per month, has become disabled and is unable to perform his nature of job and has to depend upon others, but the tribunal has granted only a sum of Rs.25,000/- as loss of income in future which is on the lower side and needs to be enhanced. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Future loss of income Rs.25,000/-
2. Cost of treatment Rs.10,000/-
3. Cost of extra nutrition Rs.5,000/-
3. Expenses on boarding/lodging Rs.5,000/-
4. Pain and suffering Rs.10,000/-
5. Loss of amenities of life Rs.5,000/-
Total Rs.60,000/-
This appeal is accordingly allowed in the above terms modifying the award of the Tribunal to the above extent.
CIMA No.211/2007The case of the claimant/appellant before the Tribunal was that he was 10 years old and was a student at the time of accident and he was caught in 18 between the seats and his whole body was compressed particularly chest, back side and leg, right foot. Appellant also claimed to have sustained wounds which have caused disfiguration. It is stated that he was treated in Sunderbani Hospital and to substantiate this fact OPD ticket was placed on record. There was overwriting on the date and months in the OPD ticket and who has done this overwriting has also not been explained nor the doctor who issued the same has been examined, therefore, the Tribunal found the same doubtful. The Tribunal also noticed that in the OPD ticket it has not been mentioned that when the appellant was admitted in the hospital and what type for treatment was given and when he was discharged. What were the injuries sustained by the appellant have also not been recorded in the OPD ticket. The name of the appellant did not find mention in the list of injured persons supplied by the police station concerned in which FIR was registered regarding the accident. Non-inclusion of appellants name in the list of injured persons has neither been explained nor any malafide has been alleged against the SHO. The Tribunal also observed that disability certificate placed on record by the appellant suffers from infirmity. After considering various aspects coupled with non-inclusion of the appellant in the list of injured persons, the Tribunal dismissed the claim petition of the appellant.
Aggrieved by the dismissal of the claim petition, appellant approached this Court by filing this appeal seeking setting aside of the order of the Tribunal and for grant of just and appropriate award in favour of the appellant. It is stated that the Tribunal has awarded Rs.25,000/- as interim award under no fault liability but while passing final award has dismissed the claim petition ignoring the fact that the appellant sustained 7% permanent disablement in his left ankle and right foot was fractured due to which the appellant, who was a student at the time of accident, has become disabled boy.
The overwriting on the date and months in the OPD ticket produced by the appellant before the Tribunal had not been explained nor the doctor who 19 issued the same was examined. Further, OPD ticket does not indicate the nature of injuries, when the patient was admitted and when he was discharged. The Tribunal also found the disability certificate doubtful by observing that the appellant claimed that he was treated in Sunderbani and the doctor examined by the appellant before the Tribunal stated that he was working in GMC Hospital, Jammu and appellant was treated in the Unit where he was posted. Therefore, there is no reason to interfere with the findings of the Tribunal. Accordingly, this appeal is dismissed.
CIMA No.212/2007The case of the claimant/appellant before the Tribunal was that she is a house wife and was 32 years of age at the time of accident. It was alleged that the appellant received type II compound fracture of shaft of right arm due to which she is unable to work with the right hand and has thus suffered permanent disability. The appellant had claimed Rs.6.40 lacs as compensation under various heads. It was stated that appellant was admitted in GMC Hospital on the day of accident and was discharged on 7th October, 1996 with an advice to attend OPD after four weeks. The permanent disability certificate placed on record also established that the appellant was suffering from stiffness of right elbow due to fracture of right humerus and her permanent disability amounts to about 15%. The Tribunal after appreciating the evidence and material on record granted compensation, details of which are as under:-
1. Cost of medicines Rs.7,000/-
2. Special diet Rs.5,000/-
3. Attendance/transport charges Rs.8,000/-
4. Pain and suffering Rs.10,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.40,000/-
20Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has field this appeal seeking enhancement, stating that the Tribunal has ignored the fact that the appellant sustained 15% permanent disablement due to fracture of right humerus due to which, the appellant, who is a house wife, is unable to perform even domestic work and has to depend upon other and has granted only a sum of Rs.10,000/- as loss of amenities of life. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of medicines Rs.7,000/-
2. Special diet Rs.5,000/-
3. Attendance/transport charges Rs.8,000/-
4. Pain and suffering Rs.15,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.45,000/-
This appeal is, accordingly, allowed and the award of the Tribunal is modified as above.
CIMA No.213/2007Before the Tribunal, the claimant/appellant claimed that at the time of accident he was 19 years old and used to earn Rs.2,000/- by working as bandmaster and by working as a labourer. It was stated that the appellant received multiple injuries of his left leg which has disabled him permanently and he is unable to work and walk properly. It was also stated that the appellant was treated in Sunderbani Govt. Hospital and a slip bearing stamp of Asstt. Surgeon, SDH, Sunderbani was also placed on record. The said slip does not makes mention of the injuries sustained by the appellant. The appellant also placed on record permanent disability certificate, which reveals that on examination the appellant was found suffering from stiffness of left ankle and 21 deformity of spine to the extent of 12%, but it does not disclose the cause or duration of the injury. According to the doctor, the injury could be caused by fall. The doctor while appearing in the witness box has admitted that he had never treated the appellant. How the appellant obtained disability certificate from Jammu Hospital where he was never treated was not explained by the appellant further he has not examined the doctor who treated him at Sunderbani. After appreciating the evidence and material placed on record, the Tribunal held that the appellant had received very minor injuries and awarded compensation, details of which are as under:-
1. Cost of treatment Rs.3,000/-
2. Paint and suffering Rs.3,000/-
Total Rs.6,000/-
Dissatisfied with the quantum of compensation, the appellant has filed this appeal seeking enhancement of compensation stating that the Tribunal has awarded RS.6,000/- only, ignoring the fact that the appellant sustained 12% permanent disablement in his left leg due to which the appellant is unable to work and walk properly and the Tribunal has also failed to grant compensation on account of loss of amenities of life and loss of future income. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment Rs.5,000/-
2. Cost of extra nutrition Rs.2,500/-
2. Pain and suffering Rs.6,000/-
Total Rs.13,500/-
This appeal is accordingly allowed by modifying the award of the tribunal in the above terms.
22 CIMA No.214/2007In this case, the claim of the claimant/petitioner before the Tribunal was that he was 42 years old on the date of accident and was a housewife and running some business. It was also claimed that in the accident, appellant sustained multiple grievous injuries to whole of her body including injuries to both knees and left leg. It is stated that firstly she was treated in Sunderbani Hospital and then referred to GMC Jammu from where she was discharged on 30.10.1996. Appellant placed on record of the Tribunal discharge certificate issued by Neuro Surgical Unit with the history of head injury suffered in road traffic accident. A disability certificate was also placed on record which makes reference to stiffness and pain of right knee. The appellant has not placed on record the record of the hospital where she was treated for another injury nor any attempt was made to summon the same. The Tribunal held that the disability certificate cannot be relied upon as its shows stiffness and pain of right knees whereas as per the discharge card the appellant remained hospitalized as a case of head injury. Another reason stated by the Tribunal for discarding the disability certificate is that doctor has failed to disclose the cause of injury or the age of the injury. Further the doctor deposed that he had never treated the appellant. After appreciating the evidence and material available on record, the Tribunal came to the conclusion that the appellant in fact received some head injury and was admitted in the hospital to rule out any internal injury to the brain. Name of the appellant figures in the list of injured persons supplied by the police station concerned. Therefore, the Tribunal after taking into consideration various aspects granted compensation, details of which are given as under:-
1. Cost of treatment Rs.3,000/-
2. Transport Charges Rs.5,000/-
3. Pain and suffering Rs.5,000/-
Total Rs.13,000/-
23Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhancement in the compensation by stating that the Tribunal has awarded Rs.13,000/- only ignoring the fact that the appellant sustained 10% permanent disablement due to multiple nature of injuries, besides grievous nature of injuries in left leg, both knees, head injury and spinal received by her in the accident due to which she, who is a house wife, has become a disabled woman and has to depend upon others, therefore, the award is required to be enhanced.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment Rs.5,000/-
2. Transport Charges Rs.5,000/-
3. Attendant charges Rs.2,500/-
4. Cost of extra nutrition Rs.2,500/-
3. Pain and suffering Rs.7,500/-
Total Rs.22,500/-
This appeal is accordingly allowed and the award of the Tribunal stands modified.
CIMA No.215/2007The claim of the claimant/appellant before the Tribunal was that she was of the age of 9 years on the date of accident and in the accident she received multiple grievous injuries. Her head, right ear and arm were badly crushed, which have crippled her and she is unable to perform her day to day routine job. It was stated that firstly she was admitted in Sunderbani Hospital and on the same day was referred to GMC Hospital, Jammu where she remained under treatment upto 23.09.1996. Appellant claimed total compensation of Rs.8.30 24 lacs on various grounds mentioned in the claim petition. The appellant placed on record of the Tribunal a disability certificate, however, this certificate makes mention of only pain and stiffness of lumber spine and it does not make mention of any injury as mentioned in the claim petition.
The Tribunal found that the OPD Card produced by the appellant does not tally with the date of accident or the date when the petitioner was examined in the GMC by the doctor, who issued disability certificate. Even the father through whom claim petition was filed had not appeared in the witness box. The Tribunal further noticed that name of the appellant does not figure in the list of injured person or list of prosecution witnesses issued by the SHO Police Station concerned. Accordingly, the Tribunal held that the appellant had failed to prove that she suffered any injury in the accident and dismissed the claim petition. Aggrieved by dismissal of the claim petition, the appellant has filed this appeal for setting aside the order of the Tribunal and for grant of reasonable, just and appropriate award in her favour stating that the Tribunal had awarded Rs.25,000/- as interim award under no fault liability but had dismissed the claim petition, ignoring the fact that the appellant sustained 5% disablement in her right ear, head injury and right arm was badly crushed due to which the appellant has become a disabled woman.
After hearing learned counsel for the parties and perusing the award it is found that the date of the OPD card placed before the Tribunal did not tally with the date of the accident or the date when the petitioner was examined in GMC by Dr. Rakesh Sharma. The Tribunal was justified in dismissing the claim petition because appellant has neither examined her father through whom claim petition was filed nor any witness, except the doctor who issued the disability certificate. Mere filing of the claim petition is not sufficient for grant of compensation. This appeal is accordingly dismissed.
25 CIMA No.216/2007The claimant/appellant was of the age of 10 years on the date of accident and had filed her claim petition through her father Mr.Satvir. The claim before the Tribunal was that she received multiple injuries to whole of her body in the accident. Injury to her head and stomach was described to be very serious because it resulted in continuous bleeding. According to the appellant, she remained admitted in Hospital at Sunderbani from 19.10.1996 to 23.10.1996 but she has not placed on record any medical evidence in this regard nor was such record summoned. The appellant examined Dr.Rakesh Sharma who issued the disability certificate but the father, who filed the claim petition, has not appeared in the witness box. Appellants name also does not figure in the list of injured persons issued by the SHO Police Station concerned. The Tribunal has further noticed that the witnesses examined in connected claim petitions have not disclosed that the appellant was traveling in the offending vehicle and sustained injuries. It was only Kamla Devi W/o Hari Dev Singh, who was also one of the claimants stated that one Nirmal Kumari was also traveling in the offending bus but her parentage has not been disclosed and there were two other women namely Nirmal Kumari and Nirmla Devi, who have also filed claim petition. It was also noticed by the Tribunal that the statement of Dr. Rakesh Sharma was not signed by the then Presiding Officer.
After considering the above facts, the Tribunal has dismissed the claim petition.
Aggrieved by the dismissal of the claim petition, the appellant has filed this appeal seeking setting aside of the dismissal order and for grant of reasonable, just and appropriate award in her favour by stating that the Tribunal had awarded Rs.25,000/- as interim award under no fault liability but had dismissed the claim petition, ignoring the fact that the appellant sustained 10% 26 permanent disablement in her stomach and head injury due to which the appellant has become a disabled woman.
After hearing learned counsel for the parties and perusing the award it is found that the Tribunal was justified in dismissing the claim petition because neither any medical was placed on record (except the disability certificate to prove the injuries) nor the father of the appellant, through whom claim petition was filed, has appeared in the witness box. Mere filing of the claim petition is not sufficient for grant of compensation.
This appeal is accordingly dismissed.
CIMA No.217/2007The claim of the claimant/appellant before the Tribunal was that he was a bandmaster and was of the age of 25 years at the time of accident. The monthly income was pleaded as Rs.2000/- per month. It was alleged that both side ribs of the appellant were badly pressed in the accident due to which he is unable to breathe properly. According to the appellant, he was treated in Sunderbani Hospital and was discharged on 21.09.1996. The appellant also placed on record of the Tribunal a disability certificate issued by Dr. Rakesh Sharma of GMC Hospital, Jammu, which indicates that appellant suffered stiffness of lumber spine due to the injury to spine. While appearing in the witness box, the appellant claimed that his ribs were badly damaged in the accident. The doctor was also examined in order to prove the disability certificate. The Tribunal observed that appellant claims that his ribs were badly pressed but he failed to explain as to how Dr. Rakesh Sharma issued certificate in respect of stiffness of lumber spine and the doctor has not mentioned the nature of the injuries and also had not disclosed the age of the injury. Accordingly, the Tribunal held that no amount of compensation can be granted on account of any loss of future earning and after considering that appellant injured in the accident and might have spent some amount on the treatment, awarded compensation as under:-
271. Cost of treatment Rs.2,000/-
2. For boarding and lodging Rs.500/-
3. For traveling expenses Rs.5,000/-
4. For pain and suffering Rs.5,000/-
Total Rs.12,500/-
Dissatisfied with the compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhancement of the award by modification by stating that the Tribunal has awarded Rs.12,500/- only as compensation, ignoring the fact that the appellant sustained 5% permanent disablement in lumber region of spine due to which appellant, who was a Band Master and was also performing agricultural activities, has become a disabled person and is unable to perform his nature of job.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of treatment Rs.4,000/-
2. Cost of extra nutrition Rs.2,500
2. For boarding and lodging Rs.1,500/-
3. For traveling expenses Rs.5,000/-
4. For pain and suffering Rs.10,000/-
Total Rs.23,500/-
This appeal is accordingly allowed and the award of the tribunal is modified as above.
CIMA No.218/2007The claim of the claimant/appellant before the Tribunal was that he sustained multiple injuries to his body in the accident, which have disabled him. The appellant claimed his age as 18 years on the date of accident and was earning Rs.1500/- per month by working as bandmaster. Appellant placed on record of the Tribunal an OPD ticket, according to which he was admitted in Sunderbani Hospital on 19.09.1996 and discharged on 21.09.1996 but it does 28 not contain the nature of injuries. The appellant also placed on record a certificate issued by Dr. Rakesh Sharma indicating the appellant suffering from stiffness of left knee about 30 degree. According to the appellants deposition before the Tribunal, he received injuries to his chest, back and right leg but in the certificate it was not disclosed that he received injuries to his chest and right leg. The Tribunal held that the appellant has failed to prove that he received injuries to his chest, back and right leg in the accident. The Tribunal also held that it appears that the appellant had sustained minor injuries and remained hospitalized for two days and may have incurred some amount on treatment. Accordingly the Tribunal awarded compensation in favour of the appellant, detail of which is given hereunder:-
1. Cost of medicines Rs.2,000/-
2. For lodging and boarding of his parents Rs.1,000/-
3. Traveling expenses Rs.500/-
4. Pain and suffering Rs.5,000/-
Total Rs.8,500/-
Aggrieved by non-grant of compensation for loss of amenities of life and loss of future income, the appellant has filed this appeal on the ground that the Tribunal has awarded Rs.8,500/- only, ignoring the fact that the appellant sustained 10% permanent disabled in his left leg due to which the appellant, who was a Bandmaster and was also performing the job of a labourer and earning Rs.1,500/- per month is unable to perform his nature of job after accident and seeks enhancement of compensation to be a just and reasonable. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
291. Cost of treatment Rs.2,000/-
2. Cost of extra nutrition Rs.5,000
2. For boarding and lodging of his parents Rs.3,000/-
3. For traveling expenses Rs.1,000/-
4. For pain and suffering Rs.10,000/-
Total Rs.21,000/-
This appeal is accordingly allowed and the award of the tribunal is modified as above.
CIMA No.219/2007The claim of the claimant/appellant before the Tribunal was that she was student and was of the age of 16 years at the time of accident. According to her, besides studies she used to help her parents in household and agricultural affairs after school hours and has assessed Rs.5,000/- per month as cost of the services she rendered. It was alleged that in the accident the appellant received multiple grievous and soft tissue injuries and the wounds received by her have caused permanent disfiguration. However, the appellant has not placed on record of the tribunal any medical record. At the time of filing of the claim petition, the permanent disability certificate was not placed on record by stating that same has not been issued by the doctor attending her. This plea of the appellant was found to be false by the Tribunal because the permanent disability certificate which was produced later on was issued on 13.05.1997 whereas the claim petition was filed on 26.05.1997 i.e. after 13 days from the date of issuance of disability certificate. While appearing in the witness box, the appellant claimed that she sustained fracture of left leg and injuries to knee but has failed to prove that she sustained such injuries in the accident. Even in the list of the injured persons issued by the Police Station concerned, the name of the appellant does not figure. Thus, the Tribunal observed that claimant/appellant has failed to prove that she suffered injuries of the nature mentioned in the permanent disability certificate in the accident in question. The doctor who issued the 30 disability certificate while appearing in the witness box has stated that no treatment record was shown to him. Therefore, the Tribunal held that the disability certificate is doubtful and cannot be relied upon and dismissed the claim petition.
The appellant has filed this appeal seeking enhancement of the award of the Tribunal. According to the appellant, the Tribunal has granted Rs.5,000/- only as compensation and he seeks modification of the award by passing a reasonable, just and appropriate order.
Learned counsel appearing for the Insurance Company justifying the order of the tribunal has contended that the disability certificate issued by a doctor who has never treated the patient cannot be relied upon and placed reliance on the following judgments of Honble the Supreme Court, viz., (i) Raj Kumar v. Ajay Kumar and anr. 2011 ACJ 1; and (ii) Rajesh Kumar alias Raju v. Yudhvir Singh, 2008(7) SCC 305, and a judgment of Karnataka High Court rendered in National Insurance Co. ltd. Banglore v. Rangappa and anr. 2012 AAC 133 (Kar).
The Apex Court in Raj Kumar v. Ajay Kumar and another (supra), while dealing with disability certificates, held as follows:-
2. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. 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. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. (Emphasis supplied) 31 The Apex Court in Rajesh Kumar alias Raju v. Yudhvir Singh (supra) observed as follows:-
11. The certificate in question in this case was obtained after two years. It is not known as to whether the civil surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmens Compensation Act or other wise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmens Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time. (Emphasis supplied) In National Insurance Co. Ltd. Bangalore v. Rangappa and anr. (supra), High Court of Karnataka observed as under:-
14. In addition to this claimant and commissioner also takes assistance of one Dr. Sridhar who has neither treated claimant nor knows anything about the alleged injury suffered by him. He gives a false medical certificate to the effect that claimant has suffered injuries in the accident which is caused due to use of tractor belonging to Subbegowda and said injury has caused 40% disability to his left leg. He does not give any opinion as contemplated under Section 4(1)(c)(ii) of Workmens Compensation Act which require the doctor to give opinion regarding what would be loss of earning capacity the said injury has caused. In the absence of same Commissioner takes up responsibility on his broad shoulders and again comes to assistance of claimant in fixing loss of earning capacity generously at 40% without there being acceptable evidence in support thereof and proceeded to award compensation in favour of claimant. The Tribunal was justified in dismissing the claim petition because the appellant had failed to prove the injuries alleged to have been suffered in the accident. Moreover the doctor who issued the disability certificate while appearing before the Tribunal stated he never treated the appellant and no treatment record was shown to him.32
In such view of the matter, the appeal is dismissed.
CIMA No.220/2007In this case the Tribunal found that the claimant/appellant did not suffer any injury in the accident and his name does not figure in the list of injured persons issued by SHO, Sunderbani where FIR was registered and matter investigated. Had the appellant sustained injuries in the accident his name would have definitely been in the list of injured. Further, claimant has not placed on record of the Tribunal the discharge certificate, however, he placed on record a slip indicating him to have admitted on 19.9.1996 and discharged on 21.09.1996. The appellant had managed a disability certificate dated 26.04.1997 from GMC Hospital, Jammu in which appellant has been stated to have been suffering stiffness of left ankle but how the stiffness came into existence has not been mentioned. Even the disability certificate was not countersigned by the head of the department.
The Tribunal held that the evidence of the appellant is not worth reading and dismissed the claim petition.
Aggrieved by the dismissal of the claim petition, the appellant has approached this Court for setting aside the order of the Tribunal and for granting a reasonable, just and appropriate award through the medium of this appeal by stating that the Tribunal has awarded Rs.25,000/- as interim award under no fault liability but has dismissed the claim petition ignoring the fact that the appellant sustained 10% permanent disablement in his left ankle and left leg was badly crushed due to which the appellant who was an agriculturalist and was also performing the job of a labourer and was earning Rs.2,500/- per month, has become a disabled person.
The Tribunal was justified in dismissing the claim petition because the OPD ticket placed on record does not bear the date, name of the hospital and nature of injuries received and no other medical record was placed on record.
33Even the disability certificate placed on record indicates the appellant suffering from stiffness of left ankle but it has not been mentioned in the certificate as to how stiffness came into existence. Even the disability certificate was not countersigned by the Head of the Department. Therefore, there is no reason to interfere with the order of the Tribunal.
Accordingly, the appeal is dismissed and the order of the tribunal is upheld.
CIMA No.221/2007The claim before the Tribunal was that the claimant/appellant was 30 years old on the date of accident and was a housewife. It was claimed that in the accident, appellant received multiple injuries to her body, apart from fracture of left arm and right leg.
In this case the Tribunal after appreciating the evidence and material available on record has awarded the following award:-
1. Cost of treatment, special diet and transport charges Rs.7,000/-
2. Pain and suffering Rs.5,000/-
3. Loss of amenities and pleasure of life Rs.5,000/-
Total Rs.17,000/-
This appeal has been filed by the claimant/appellant seeking enhancement of the award amount granted by the Tribunal by stating that the Tribunal has awarded Rs.17,000/- only while passing final award ignoring the fact that the appellant sustained 10% permanent disablement due to the grievous nature of injuries received by her in her left arm and right leg was badly crushed for which she was hospitalized in Sunderbani Hospital and has become a disabled woman. It is stated that the appellant, who was a house wife at the time of accident is unable to perform her nature of job and has become crippled woman 34 but on the other hand the Tribunal has granted only Rs.5,000/- on account of loss of amenities of life and same requires to be enhanced. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal, the appellant is held entitled to compensation as under:-
1. Cost of treatment, special diet and transport charges Rs.10,000/-
2. Cost of extra nutrition Rs.5,000/-
2. Pain and suffering Rs.10,000/-
3. Loss of amenities and pleasure of life Rs.10,000/-
Total Rs.35,000/-
The appeal is accordingly allowed in the above terms.
CIMA No.222/2007The claim of the claimant/appellant before the Tribunal was that she was 14 years old on the date of accident and was a student. It was claimed that appellant suffered multiple injuries all over her body and grievous injuries to her left leg.
The Tribunal after appreciating the evidence and material placed before it including disability certificate has found the petitioner entitled to compensation on account of the injuries suffered by her in the vehicular accident under following heads:-
1. Medical expenses Rs.5,000/-
2. Special Diet Rs.2,000
3. Pain and Suffering Rs.10,000/-
4. Loss of amenities of life Rs.10,000/-
Total Rs.27,000/-
This is an appeal seeking enhancement of compensation awarded by the Tribunal by stating that the Tribunal has awarded Rs.27,000/- only while passing final award ignoring the fact that the appellant sustained 10% 35 permanent disablement due to fracture in left leg for which the appellant who was a student at the time of accident, cannot sit on foot as well as cannot walk properly and has become a disabled woman but the Tribunal has award a sum of Rs.10,000/- as loss of amenities of life which should be Rs.3.00 lac as the appellant after completing her graduation would have been absorbed in any Government Department and would have earned Rs.7000/- to Rs.8000/- per month and prays for enhancement of the award.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Medical expenses Rs.7,500/-
2. Special diet/extra nutrition Rs.5,000/-
3. Attendant/Boarding and lodging charges Rs.5,000/-
4. Pain and suffering Rs.15,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.42,500/-
This appeal is accordingly allowed and the award of the Tribunal is modified in the above terms.
CIMA No.223/2007The claimant/appellant claimed before the Tribunal that she suffered multiple injuries, including injury to forehead, left side of the chest and left side of the shoulder. Her face was also damaged due to the splinters of the bus. She was badly pressed between the seats of the bus. It was claimed that the appellant received treatment in SDH Sunderbani and from GMC, Jammu as out door patient.
The Tribunal after noticing contradictions in the claim made in the claim petition and in the statement made before the Tribunal and disability certificate has held that the appellant has failed to prove the nature of the injuries claimed to have been sustained by her in the accident. It has also been noticed that in the 36 claim petition it was alleged that disability certificate was not issued by the time of filing of the claim petition but the disability certificate revealed that it was issued on 17.05.1997 and the claim petition was filed on 17.07.1997, the same creates doubts on the credibility of the disability certificate. Since the name of the appellant finds mention in the list of injured person issued by the police station concerned, the Tribunal observed that the appellant might have received minor injuries and has awarded an amount of Rs.5,000/- as compensation for the pain and worries suffered by the appellant on account of the accident. This appeal has been filed by the appellant seeking enhancement of the award granted by the Tribunal to be a just and reasonable. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of extra nutrition Rs.2,500/-
2. Transportation expenses Rs.1,000/-
2. Attendant charges Rs.1,000/-
4. Pain and worries Rs.5,000/-
Total Rs.9,500 This appeal is accordingly allowed and the award of the tribunal is modified in the above terms.
CIMA No.224/2007The case of the appellant before the Tribunal was that he was 45 years old at the time of accident and was earning Rs.2,000/- by working as bandmaster and also looking after his agricultural land. It was claimed that he suffered multiple injuries to whole of his body, including grievous injuries to his chest, causing fracture of ribs with haemothrus right side due to which appellant was unable to move properly. To substantiate the injuries received and treatment.
37The appellant place on record discharge card and also permanent disability certified indicating the appellant to have suffered 8% permanent disability. The disability certificate has been proved by examining the doctor, who issued the said certificate. After considering the injuries received, treatment taken, disability suffered, the Tribunal has awarded compensation as under:-
1. Loss of future income Rs.20,000/-
2. Cost of treatment Rs.5,000/-
3. Transport charges Rs.4,000/-
4. Pain and suffering Rs.10,000/-
Total Rs.39,000/-
This appeal has been filed by the claimant/appellant seeking enhancement of the award passed by the Tribunal by stating that the Tribunal has awarded Rs.39,000/- only, ignoring the fact that the appellant sustained 8% permanent disablement due to fracture of left ribs and left knee due to which the appellant, who was a Bandmaster and earning Rs.2,000/- per month as well as performing agricultural activities, has become disabled person and is unable to perform his nature of job after the accident, but the Tribunal has granted only Rs.20,000/- on account of loss of future income and Rs.5,000/- as cost of treatment, which are required to be enhanced.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Loss of future income Rs.20,000/-
2. Cost of treatment Rs.5,000/-
3. Extra nutrition/special diet Rs.5,000/-
4. Attendant expenses Rs.2,500/-
3. Transport charges Rs.4,000/-
4. Pain and suffering Rs.15,000/-
Total Rs.51,500/-
38This appeal is accordingly allowed and the award of the Tribunal is modified in the above terms.
CIMA No.225/2007The claim of the claimant/appellant before the Tribunal was that while traveling in the offending bus she was injured seriously in the accident which was caused due to rash and negligent driving. The appellant was stated 31 years of age at the time of accident and was a housewife. It was stated that her left arm and right clavicle was fractured in the accident due to which she cannot produce any child in future. The appellant remained hospitalized from 19.09.1996 to 02.10.1996 and thereafter advised bed rest for next one month. Rs.19.30 lacs was claimed as compensation under various heads. It was also alleged by the appellant in the claim petition that she had passed her 12th class in the year 1997 and was ready to get a government job but due to accident in which she received grievous injuries on legs and foot, she is not able to get any job after the accident and has claimed Rs.3.00 lacs as compensation in this account. The appellant placed on record of the Tribunal copy of the discharge card and permanent disability certificate indicating the appellant to have suffered 15% permanent disability. The appellant besides examining the doctor has appeared in the witness box in order to prove her claim. After appreciating the evidence and material available before it, the Tribunal found the claimant/appellant entitled to compensation under the following heads:-
1. Medical expenses Rs.5,000/-
2. For pain & suffering Rs.15,000/-
3. For loss of amenities of life Rs.10,000/-
4. Special Diet Rs.3,000/-
Total Rs.33,000/-
39The claimant/appellant has filed this appeal against the award of the Tribunal, seeking enhancement of compensation by stating that the Tribunal has awarded Rs.33,000/- only ignoring the fact that the appellant sustained 15% permanent disablement in right shoulder and right hip was fractured. He stated that he engaged a lady servant at Rs.4,000/- per month for more than one year for performing domestic work and that apart, only Rs.10,000/- has been granted on account of loss of amenities of life in future and the Tribunal has failed to grant any amount on account of loss of future income.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Medical expenses Rs.5,000/-
2. For pain & suffering Rs.17,500/-
3. For loss of amenities of life Rs.10,000/-
4. Special Diet Rs.5,000/-
5. Attendant charges Rs.2,500/-
Total Rs.40,000/-
This appeal is, accordingly, allowed and the award of the Tribunal is modified in the above terms.
CIMA No.226/2007This appeal has been filed by the claimant/appellant seeking to set aside the order of the Tribunal whereby his claim petition was dismissed and for grant of reasonable, just and appropriate compensation. It is stated that the learned Tribunal has awarded Rs.25,000/- as interim award under no fault liability but has dismissed the claim petition ignoring the fact that the appellant sustained permanent disablement in her ring and little finger as well as multiple injuries in her whole of the body due to which the appellant, who was a house wife, has become a disabled woman.
40Before the Tribunal, the appellant claimed that she was of the age of 38 years at the time of accident and was a housewife and received multiple injuries on her whole body and both of her arms were fractured besides head injury. It was claimed that she was treated in Primary Health Centre Sunderbani from 19.9.1996 to 01.10.1996 and remained admitted in GMC Hospital, Jammu for further treatment.
The OPD ticket does not mention the name of the doctor or the date on which the treatment was prescribed. The discharge card of GMC, Jammu which was placed on record of the Tribunal, indicates that the patient was admitted in Ortho-IV of GMC, Hospital Jammu on 12.12.1996 with injury to ring and little finger. The Tribunal found from the record that the patient was admitted with history of inability to extend right finger and little finger, accordingly, the Tribunal held that the appellant sustained above said injuries afterwards and in this background the disability certificate was held to be obtained by misrepresentation and cannot be relied upon. Finally, the Tribunal held that the appellant had tried to obtain compensation by misrepresentation and dismissed the claim petition.
The accident was occurred on 19.09.1996 and the claim was made on the ground that the appellant suffered injury to the ring and little finger and it was claimed that the appellant was treated in GMC. However, the discharge placed on record indicates the date of admission in Ortho-IV of GMC, Jammu as 12.12.1996 i.e., after three months from the accident, whereas as per the claim petition, the appellant was discharged on 01.10.1996 from PHC, Sunderbani, therefore, the Tribunal was right in disbelieving the disability certificate and dismissing the claim petition.
I find no reason to interfere with the findings of the Tribunal. Accordingly, the appeal is dismissed.
41 CIMA No.235/2007The claim of the appellant before Tribunal was that she was 30 years old at the time of accident and in the accident she received head injury and fracture of left leg. She was operated for insertion of K. nail on 24.09.1996 in GMC, Hospital, Jammu and was discharged on 07.10.1996. It was also claimed that the claimant/appellant was earning Rs.1,000/- per month by private tuition and because of the permanent disability, she cannot teach any student. The appellant examined the doctor, Dr. Rakesh Sharma, to prove her disability. According to the doctor, the appellant has suffered from shortening of left leg and there is mild stiffness in her left hip and knee due to the fracture of femur. As per the doctor, the appellant has been physically handicapped and her permanent disability was assessed at 20%. The doctor also deposed that the appellant will have difficulty while sitting and squatting but she can take tuitions by sitting on chair. Thus, it was held that earning capacity of the claimant/appellant has not been reduced and taking into consideration the injuries received, treatment taken, pain and suffering and loss of amenities, the Tribunal held the appellant entitled to receive compensation under the following heads:-
1. Cost of medicines Rs.5,000/-
2. Special diet Rs.2,000/-
3. Transportation charges Rs.5,000/-
4. Pain and suffering Rs.10,000/-
5. Loss of amenities of life Rs.10,000/-
Total Rs.32,000/-
Dissatisfied with the amount of compensation awarded by the Tribunal, the appellant has filed this appeal seeking enhancement of compensation, stating that the Tribunal has awarded Rs.32,000/- only ignoring the fact that the appellant sustained 20% permanent disability due to shortening of left leg stiffness in her left hip as well as knee for which the appellant who was a housewife and also imparting private tuitions to small children and was earning 42 Rs.1000/- per month, is unable to perform even domestic work and has to depend upon others but the Tribunal has granted only a sum of Rs.10,000/- on account of loss of amenities of life and failed to grant any loss of income in future.
After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
1. Cost of medicines Rs.5,000/-
2. Special diet Rs.5,000/-
3. Attendant charges Rs.2,500/-
4. Transportation charges Rs.5,000/-
5. Pain and suffering Rs.15,000/-
6. Loss of amenities of life Rs.10,000/-
Total Rs.42,500/-
This appeal is accordingly allowed and the award of the tribunal is modified to the above extent.
CIMA No.D-28/2006 Admit.
With the consent of learned counsel for the parties the appeal is taken up for final disposal.
The claimant/appellant had filed claim petition before the Tribunal claiming that she was of the age of 26 years and a housewife on the date of accident. It was claimed that she sustained head injuries, fracture of right leg, left leg and joint of knee. According the appellant, she was admitted in neuro surgical unit of GMC, Hospital, Jammu on 19.09.1996 and discharged on 17.10.1996. In order to prove her claim, the appellant appeared in the witness box and also placed on record discharge record. Besides this the appellant also 43 placed on record a disability certificate according to which she has mild stiffness of right knee movement with ataxis gate. The permanent disability suffered was assessed at 10%.
The Tribunal held that the serious injuries to head have not been established as per the discharge record nor the appellant has placed on record any medical certificate in this regard. However, the appellant proved that she sustained injuries to the right knee in the accident which is permanent in nature and to the extent of 10% but this disability has not caused any pecuniary loss to the petitioner because she had no source of independent income nor she had claimed any such income. Therefore, after taking into consideration the injuries suffered, treatment, pain and suffering and loss of amenities of life, the Tribunal has awarded the following compensation in favour of the appellant:-
1. Cost of treatment Rs.8,000/-
2. For special diet Rs.2,000/-
3. For boarding and lodging Rs.5,000/-
4. For traveling expenses Rs.3,000/-
5. For pain and suffering Rs.10,000/-
6. For loss of amenities of life Rs.10,000/-
Total Rs.38,000/-
Dissatisfied with the quantum of compensation awarded by the Tribunal, this appeal has been filed by the appellant seeking enhancement of compensation by stating that the Tribunal has award a sum of Rs.38,000/- only ignoring the fact that the appellant sustained 10% permanent disablement in her right leg due to which the appellant was unable to work and walk properly. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal the appellant is held entitled to compensation as under:-
441. Cost of treatment Rs.8,000/-
2. Special diet Rs.5,000/-
3. For boarding and lodging Rs.7,000/-
4. Traveling expenses Rs.5,000/-
5. Pain and suffering Rs.15,000/-
6. Loss of amenities of life Rs.10,000/-
Total Rs.50,000/-
This appeal is accordingly allowed and the award of the tribunal is modified to the above extent.
CIMA No.494/2013This appeal has been filed with an application seeking condone delay of 3366 days in filing the appeal.
The delay in filing the appeal is condoned. Appeal is admitted to hearing. With the consent of counsel for the parties, the appeal is taken up for final disposal.
The claim of the claimant/appellant before the Tribunal was that he was a student of 10th class and 19 years old when the accident took place. It was alleged that the appellant received head injury and his right femur shaft was fractured. It was further claimed that appellant received injury to his right eye which has completely lost its vision. The appellant claimed Rs.25.00 lac as compensation under various heads including Rs.1.00 lac as cost of treatment. The appellant placed on record of the Tribunal discharge certificates besides two certificates issued by Dr. Rakesh Sharma and Dr. Dinesh Malhotra. Both the doctors have appeared in the witness box. The appellant examined himself and his mother.
The Tribunal observed that the appellant has not only lost eye sight, but suffered 25% permanent disability of right leg which has also been shortened. Taking into consideration the loss of vision and weakness of vision of the other eye and 25% of permanent disability of leg, the loss of earning capacity of the 45 petitioner was fixed at 40%. The total loss of earning capacity of the appellant was taken to Rs.2000/- per month and total annual loss of future earning was assessed to Rs.24,000/- and taking the multiplier of 13 the total loss of the income of the appellant was assessed as Rs.2,60,000/-. The Tribunal after considering various aspects has found the appellant entitled to compensation under various heads, which are as under:-
1. Loss of future income Rs.2,60,000/-
2. Cost of treatment Rs.10,000/-
3. Special diet Rs.5,000/-
4. Transport and attendance charges Rs.5,000/-
5. Loss of marriage prospects Rs.15,000/-
6. Pain and sufferings Rs.20,000/-
7. Loss of amenities and pleasures of life Rs.20,000/-
Total Rs.3,35,000/-
Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant has approached this Court for enhancement of the compensation, stating that the Tribunal has ignored the fact that the appellant has suffered permanent disability by loosing eye sight of one eye and impairment of vision of other eye as well as 25% impairment of the right lower leg. After hearing counsel for the parties, considering the age of the injured, nature of injuries received, period of hospitalization, disability suffered, in modification of the award of the tribunal, the appellant is held entitled to compensation as under:-
1. Loss of future income Rs.2,60,000/-
2. Cost of treatment Rs.10,000/-
3. Special diet Rs.15,000/-
4. Transport and attendance charges Rs. 5,000/-
5. Loss of marriage prospects Rs.20,000/-
6. Pain and sufferings Rs.25,000/-
7. Loss of amenities and pleasures of life Rs.30,000/-
Total Rs.3,65,000/-
46This appeal is accordingly allowed and the award of the tribunal is modified to the above extent.
Component of interest on the amount of compensation as awarded by the Tribunal shall remain unchanged.
The Insurance Company is directed to satisfy the awards as modified by this judgment.
Before parting with the judgment, this Court records its word of appreciation to the researchers, who have rendered wonderful services and assisted the learned counsel for the respondent-Insurance Company, to in turn assist the Court to dispose of this set of appeals.
(Ramalingam Sudhakar) Judge Jammu 10.08.2016 Vinod.