The Honourable Mr.Justice C.K.Abdul ... vs By Adv.Sri.M.V.Amaresan on 30 January, 2013

[Cites 1, Cited by 2]

Kerala High Court

The Honourable Mr.Justice C.K.Abdul ... vs By Adv.Sri.M.V.Amaresan on 30 January, 2013

The claimant in O.P.(MV) No. 683/2006 on the files of the Motor Accidents Claims Tribunal, Thalassery is the appellant herein, challenging the award on the ground that the quantum of compensation determined is insufficient, inadequate and disproportionate. The accident in question occurred on 14.6.2005 when a bus hit against the car in which the appellant was travelling. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus by its driver. The respondent herein, who was the 3rd respondent before the Tribunal, was held liable to pay the compensation, being the insurer of the offending bus. In the present appeal, there is no dispute with respect to the findings of the Tribunal on the aspects of negligence and on MACA 1812/2013 2 the liability of the respondent herein. The only question to be examined is the justifiability or reasonableness of the quantum of compensation awarded.

2. The appellant had produced various documents pertaining to the treatment undergone by him. Ext.A2 is the wound certificate issued from the Omega Hospital, Mangalore, wherein he was admitted for the first time. The injuries noted in the said certificate are 1) fracture lateral end of right clavicle, 2) fracture upper end of right humerus and 3) fracture on the 5th rib right. The certificate would indicate that he was treated there as inpatient from 15.6.2005 to 27.6.2005 (18 days). Ext.A3 is the discharge summary issued from the above hospital, which would indicate treatment as inpatient from 15.6.2005 to 27.6.2005. Diagnosis noted therein are; fracture right rib 5th, fracture right humerus. But in the claim petition it was mentioned that the appellant had sustained fracture of cervical vertebra and fracture of three ribs of one side and MACA 1812/2013 3 one rib on the other side and also fracture of back bone. The Tribunal had also taken note of Ext.A4 Discharge Card issued from another hospital at Payyannur, viz. B.K.M. Hospital. It would reveal that the appellant was admitted in the said hospital on 6.10.2006 and discharged on 10.10.2006. The contents of Ext.A4 would indicate that the admission was for removal of implant. The appellant in the claim petition as well as in the oral evidence adduced maintained a stand that, only after contacting Dr. Santharam Shetty and only after taking an MRI scan as suggested by Dr.Rajesh Shetty, the Neurology complications of his back bone was revealed. But the Tribunal observed that, the results including MRI scan report were suppressed from the Tribunal, by the petitioner. It observed that the appellant might have sustained injuries to his back bone due to some other reasons and that might be the reason why the MRI scan report was withheld from the Tribunal. The Tribunal further found that, going by contents of Exts.A2, there is MACA 1812/2013 4 nothing to support the case of the appellant that he sustained fracture of cervical vertebra and fracture of back bone in the accident. Based on the above finding, the Tribunal discarded Ext.X1 disability certificate issued by the Medial Board, which was proved by examining PW2 doctor, who was a member of the Medial Board. The Tribunal found that the para paresis and permanent disability of 60% noted by the Medical Board is the consequence of injuries sustained to D3 Vertebra, which is conspicuously absent in Ext.A1 to A4 documents. Therefore, the Tribunal inferred that the residual disability as claimed by the appellant is not a result of the injuries sustained in the accident in question and denied any compensation under the head of permanent disability. The appellant is mainly assailing the said finding and the non-awarding of compensation under the head of permanent disability.

3. Heard; counsel for the appellant and Standing Counsel appearing for the respondent. In order to arrive at a MACA 1812/2013 5 correct conclusion on the controversy, we had gone through the entire records of the Tribunal. We notice that, apart from Exts.A2 to A4, the appellant had produced Ext.A5 series documents, which include prescriptions and certificates. Those documents would indicate that the appellant had consultation at different hospitals like, Payyannur Co-operative Hospital Society, A.J. Hospital & Research Centre, Mangalore, Tejasvini Hospital, Mangalore, B.K.M.Memorial Hospital, Payyannur, Ganga Hospital, Coimbatore etc. There is also evidence to show that he had consulted Dr. P.Mahabala Rai, Professor & H.O.D., Department of Orthopaedic, Fr.Muller's Medical College, Mangalore, Dr. Rajesh Shetty, Consultant Neurologist, Mangalore, Dr. P. Kothanda Raman, Neurological Surgeon, Mangalore, Dr.Jayakrishnan Nambiar, Consultant Orthopaedic & Spine Surgeon, Saba Hospital, Payyannur etc. Most of these consultations are made in the year 2005-06. We specifically notice about two documents among Ext.A5 MACA 1812/2013 6 series, which are issued from Tejasvini Hospital, Mangalore. The first among them is dated 2.8.2005, i.e. approximately less than two months from the date of the accident. It is noted therein that they diagnosed "one month old C4, C5 Vertebra fracture". The second document issued from Tejasvini Hospital dated 9.9.2005. It is indicated therein that, "fracture C5 C6 (3 months old)". Yet another document contained in Ext.A5 series is a prescription of Dr. Rajesh Shetty, Consultant Neurologist, dated 9.9.2005. It is evident that the appellant had approached the said Doctor with complaint of traumatic cervical/upper thoracic Myelopathy since three months. It is evident that MRI scan of cervical spine and thoracic spine was done. The result noted therein is "Burst fracture of D3 Vertebra - No cord comprehension". The above narrated evidence would only persuade this court to accept the contentions of the appellant that he had sustained fracture on the vertebra in the back bone. We need to further examine the deposition MACA 1812/2013 7 of the appellant. In the proof affidavit filed before the Tribunal, he had categorically stated that immediately after the accident, he was treated at the Omega Hospital, Mangalore. But after discharge, he had severe problems and consulted various doctors at different hospitals. According to him, after about six weeks he had consulted Dr. Santharam Shetty at Tejasvini Hospital and on examination the further complications were detected. On the advice of Dr. Santharam Shetty, he had consulted Dr. Sunil Shetty, Neurologist. It is categorically deposed that on the advice of Dr. Sunil Shetty, MRI scan was done and the injury sustained to the back bone was detected. Even though the appellant was cross examined on behalf of the respondent-insurance company, nothing could be bought out to discredit his version. From the evidence as discussed above, we are inclined to accept the medical records, which would indicate that the appellant had sustained fracture to Vertebra with back bone, including the burst fracture of D3 Vertebra. MACA 1812/2013 8

4. While examining Ext.X1 disability Certificate, it is evident that the Medical Board had considered the problems of the appellant based on the finding that the appellant had sustained fracture of right humerus, right clavicle, burst fracture of vertebra and para paresis. The complaints are noted in Ext.X1 and the permanent physical disability is assessed at 50%. The Doctor who examined as PW2 had deposed that the appellant had sustained fracture of spine, thoracic vertebra 3rd, with weakness on right lower limb and fracture right humerus and right clavicle. It is stated that the disability is whole body disability and he required long treatment.

5. Under the above mentioned circumstances, we are inclined to interfere with the findings of the Tribunal that the injuries caused is not proved. All the medical records, oral evidence and other supported materials persuade this Court to accept that, the appellant had sustained various injuries including injuries to the vertebra and that he had persistent MACA 1812/2013 9 permanent complaints arising out of the fracture sustained. Since the disability certificate was properly proved by examining PW2, we are inclined to accept the extent of disability and to award compensation on account of the permanent disability.

6. The next question to be considered is regarding the income of the appellant which is to be adopted for fixing the compensation. The appellant claimed before the Tribunal that he was running an agency by name 'Drona Agencies, booking stage programmes and earning a sum of Rs.10,000/-. The Tribunal found that, no tangible evidence was adduced to prove the occupation or income. The Tribunal fixed a notional income of Rs.3,000/- per month. Learned counsel for the appellant contended that, even if there is failure on the part of the appellant to prove his income and occupation, the notional income adopted is on the lower side, considering the socio-economic situations prevailed at the time of the accident. We take note of the MACA 1812/2013 10 fact that the Hon'ble Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd.[ (2011) 13 SCC 236] had observed that, even for a coolie worker an income of Rs.4500/- can be adopted as reasonable, that too with respect to an accident, which occurred in the year 2004. It is proved through Ext.A8 extract of the SSLC Book of the appellant that the appellant was aged 43 years at the time of the accident. He was an able bodied man. Therefore we reasonably fix notional income of the appellant at Rs.4500/- per month. Consequently the compensation for permanent disability is computed by adopting the multiplier of 14, as settled by the Hon'ble supreme Court in Sarla Verma and Others v. Delhi Transport corporation and another [ (2009) 6 SCC 121] at Rs.3,78,000/-(4500x12x14x50%). We do not think that any enhancement is warranted with respect to compensation awarded under other heads. Consequent to refixation of the notional income, compensation under the MACA 1812/2013 11 head of loss of earnings need to be refixed at Rs.27,000/-, which will entitle the appellant for an enhancement of Rs.9,000/-. Learned Standing Counsel for the respondent- insurance company contended that the amount of Rs.50,000/- awarded towards pain and sufferings is on the higher side. In order to arrive at 'just compensation', we are inclined to reduce the same to Rs.25,000/-. Therefore, we fix the net amount of enhancement for which the appellant is entitled as Rs.3,62,000/-.

7. In the result, the appeal is allowed in part. The total compensation awarded by the Tribunal is enhanced by a further sum of Rs.3,62,000/-(Rupees three lakhs and sixty two thousand only). The said amount will carry interest at the same rate awarded by the Tribunal, from the date of claim petition, till realisation.

8. The respondent-insurance company is directed to make deposit of the amount, less the amount if any already paid, before the Tribunal, within a period of two months from MACA 1812/2013 12 the date of receipt of a copy o this judgment. It is made clear that on such deposit, the appellant will be entitled to approach the Tribunal seeking withdrawal and the Tribunal shall pass appropriate orders thereon.

Sd/-

C.K. ABDUL REHIM JUDGE Sd/-

SHIRCY V. JUDGE ks.

True copy P.S. To Judge

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