Accident claim - Medical Board certificate is not mandatory - Law does not say that the factum of disability must be established only by a certificate issued by medical board. On the other hand, the factum of disability can be established through a doctor who is medically competent to speak of the concerned disability - claimant is entitled an amount of Rs. 50,000/- instead of Rs.33,000/- for pain of two grievous injuries and one simple injury - entitled 40% disability permanent in nature even though not filed Medical disability Certificate as he examined the concerned doctor who conducted surgery at Rs.15,000/- and towards transport, attendant charges and nourishment is entitled Rs.10,000/- in total he is entitled a sum of Rs. one lakh and odd instead of Rs.59 thousands granted by lower court = =Jummerath Sayanna..... Appellant Md. Arifuddin and others..... Respondents = published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10583

Accident claim -  Medical Board certificate is not mandatory - Law does not say
that the factum of disability must be established only by a certificate issued
by medical board.  On the other hand, the factum of disability can be
established through a doctor who is medically competent to speak of the
concerned disability -  claimant is entitled an amount of Rs. 50,000/- instead of Rs.33,000/- for pain of two grievous injuries and one simple injury - entitled 40% disability permanent in nature even though not filed Medical disability Certificate as he examined the concerned doctor who conducted surgery at Rs.15,000/- and towards transport, attendant charges and nourishment is entitled Rs.10,000/- in total he is entitled a sum of Rs. one lakh and odd instead of Rs.59 thousands granted by lower court = 

 Law does not say
that the factum of disability must be established only by a certificate issued
by medical board.  On the other hand, the factum of disability can be
established through a doctor who is medically competent to speak of the
concerned disability. =
 PW.2 is an Orthopedic Surgeon attached to Amrutha Laxmi Multi Specialty  
Hospital, Nizamabad where the claimant took treatment.
PW.2 deposed that the claimant suffered
40% partial permanent disability.  In the cross-examination, the competency of
PW.2 to speak of the disability aspect is not challenged.
Further, the Insurance Company which claimed that the claimant
suffered only simple injuries and not any disability, did not adduce any contra
evidence like examining another specialist doctor or requesting the Court to
refer the claimant to medical board.  In these circumstances, I think the
evidence of PW.2 can be accepted.  Then the evidence of PW.2 would show that the 
functional disability of the claimant is only partial.  In the O.P, the claimant
described himself as attender in D.F.O office, Nirmal.  Having regard to the
nature of his job, it can be said that the partial permanent disability will not
completely disallow him to attend his job and daily pursuits.  Therefore,
considering all these aspects a sum of Rs.15,000/- is awarded as compensation
for disability.

For pain Rs.50,000/- granted instead of 33,000/- ( 15,000 each grievous injuries and 3000/- for simple injury )
For transportation charges, attendant expenses and extra nourishment charges.Rs.10,000/- granted =
It is the case of the claimant that due to fracture maxilla, he could not
move his mouth and chew food items for considerable period and similarly, due to
fracture tibia, he could not pursue his daily activities.  Therefore, it goes
without saying that the petitioner must have suffered excruciating pain due to
the above injuries.  Considering it, for the pain and suffering due to grievous
injuries and also other simple injuries, an amount of Rs.50,000/- is held as
reasonable compensation and hence, the same is granted.  The evidence shows that  
the petitioner was inpatient in Amrutha Laxmi Multi Specialty Hospital,
Nizamabad, from 10-08-2004 to 23-08-2004.  Therefore, it is clear that the
claimant must have incurred incidental expenditure like transportation charges,
extra nourishment charges and attendant charges.  Though he could not produce 
relevant bills for those items of expenditure, still having regard to his
hospitalization and surgeries, it can be said that the petitioner incurred
expenditure under those heads.  Hence, he deserves a reasonable compensation for 
those items.  Accordingly, the petitioner is awarded Rs.10,000/- towards
transportation charges, attendant expenses and extra nourishment charges.

S.No. 
Compensation Head   
Amount Rs.  
1
Pain and Suffering      
50,000/-
2
Transportation, Extra Nourishment and Attendant Charges 
10,000/-
3
Compensation for Disability
15,000/-
4
Medical Expenditure 
29,965/-

TOTAL  
1,04,965/-

        Therefore, the appellant-claimant is entitled to the enhanced compensation
of Rs.45,000/- (Rs.1,04,965/- - Rs.59,965/-) against respondents 1, 3 and 4.
11)     In the result, this M.A.C.M.A. is partly allowed granting enhancement of
compensation of Rs.45,000/- (Rupees forty five thousand only) with proportionate
costs and simple interest at 7.5% per annum in favour of the appellant-claimant
and against respondents 1, 3 and 4.  The respondents 1, 3 and 4 are directed to
deposit the enhanced compensation amount within one month from the date of this 
judgment, failing which execution can be taken out against them.  No order as to
costs.

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO          

M.A.C.M.A No.181 of 2009

29-11-2013

Jummerath Sayanna..... Appellant

Md. Arifuddin and others..... Respondents

Counsel for Appellant   : Sri S. Surender Reddy

Counsel for Respondents: -

<Gist:

>Head Note:

?Cases referred:

HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        

M.A.C.M.A. No.181 of 2009

JUDGMENT:  

Challenging the quantum of compensation awarded in O.P.No.199 of 2005 by the
Motor Accident Claims Tribunal-cum-I Additional District Judge, Adilabad (for
short, 'the Tribunal'), as inadequate, the injured-claimant preferred the
present M.A.C.M.A.
2)      The factual matrix of the case is thus:
a)      The claimant's case is that on 09-08-2004 while he was riding his scooter
bearing No.AP 1 C 6005 along with his relative Vinod as pillion rider and
proceeding from Nirmal to Sirgapur and on the way when they reached Chityal Bus
Stand at about 5:00 p.m., a jeep bearing No. AP 1 T 5905 came in opposite
direction being driven by its driver at high speed and in a rash and negligent
manner and went on wrong side and dashed the scooter of the claimant and thus,
caused the accident.  In the resultant accident, Vinod died and the claimant
suffered fracture of maxilla and fracture to his left tibia besides loosening of
upper teeth and bleeding injuries to right toe, nose and mouth.  The further
case of the claimant is that immediately he was shifted to Government Hospital,
Nirmal, and therefrom he was shifted to Government Hospital, Nizamabad.  Later,
he took treatment in Amrutha Laxmi Multi Specialty Hospital, Nizamabad, as
inpatient from 10-08-2004 to 23-08-2004 and underwent operation for his fracture
maxilla and reduction to fractured left tibia.  He also suffered 40% disability.
He incurred medical expenditure of Rs.40,000/-.
On these pleas, he filed
O.P.No.199 of 2005 initially against respondents 1 to 3.  Respondents 1 and 2
are owners of the jeep and 3rd respondent is insurer.  On the death of 2nd
respondent, he got added his legal-heir as 4th respondent.
b)      Respondents 1 and 4 remained ex parte.
c)      The 3rd respondent-insurance company filed counter and opposed the claim.
d)      During trial, P.Ws.1 to 3 were examined and Exs.A1 to A.11 and Ex.C.1 were
marked on behalf of claimant.  The 3rd respondent did not adduce any oral
evidence but got marked Ex.B.1-policy.
e)      The judgment of the Tribunal would show that basing on the evidence of
claimant (P.W.1) and Ex.A.1- F.I.R. and Ex.A.5-charge sheet, the Tribunal held
that fault lies with the jeep driver.  Then, compensation is concerned, the
Tribunal granted Rs.33,000/- for pain and suffering due to fractures,
transportation charges, extra nourishment and attendant charges.  Further, the
Tribunal also granted Rs.26,965/- towards medical expenditure.  The Tribunal
disbelieved the plea of the claimant that he suffered 40% disability on the
ground that he did not produce certificate issued by Medical Board.  Thus, in
all, the tribunal granted Rs.59,965/- (Rs.33,000/- + Rs.26,965/-) as
compensation with proportionate costs and simple interest at 7.5% p.a.
Hence, the appeal.
3)      Heard arguments of learned counsel for appellant. No representation for
respondents.
4)      Now, the point for determination is:
 "Whether the judgment of the Tribunal is legally and factually sustainable"?
5)      POINT: Learned counsel for the appellant challenged the award on two
grounds.  Firstly that the trial Court granted a very low amount of Rs.33,000/-
as compensation for pain and suffering, extra nourishment, attendant charges and
transportation charges.  He submitted that each fracture injury is a grievous
one and thereby, the claimant suffered heavy pain.  Due to fracture of maxilla
and loosening of teeth, he could not able to move his mouth and chew food for
longtime.  Similarly, due to fracture of left tibia, he suffered extreme pain
and could not walk and attend his works for a considerable period.  Therefore,
considering the associated pain and suffering, the trial Court ought to have
granted a reasonable compensation for the pain and suffering.  Instead, he
argued, the trial Court granted a lump sum compensation of Rs.33,000/- not only
for pain and suffering but also the other incidental expenditure like
transportation charges, extra nourishment and attendant charges which is unjust.
He submitted that a perusal of the award would show as if no separate
compensation was awarded for the incidental expenditure like transportation
charges, extra nourishment and attendant expenditure.  Hence, reasonable
compensation may be awarded separately for pain and suffering and also for other
incidental expenditure.
a) Secondly, he argued that though P.Ws.2 and 3, who treated and performed
surgeries to left leg and maxilla of the petitioner, deposed that the petitioner
suffered 40% disability, the Tribunal did not believe their evidence on the
simple reason that the claimant did not produce disability certificate issued by
Medical Board.  Learned counsel argued that the said observation is unreasonable
and therefore, considering the disability suffered by the claimant, just
compensation may be awarded.  
6)      In the light of the above arguments, I perused the award of the Tribunal.
The evidence of P.Ws.1 to 3 coupled with Ex.A2-Injury Certificate issued by
Government Civil Hospital, Nirmal, Ex.A3- Certificate issued by P.W.3 of Navata
Multi Specialty Dental Care Center, Nizamabad, and Ex.A4-Medical Certificate
issued by P.W.2 would show that the claimant suffered bilateral fracture of
maxilla and fracture of left tibia apart from other simple injuries in the
resultant accident.  
For those injuries, he was treated in Amrutha Laxmi Multi
Specialty Hospital, Nizamabad, by P.W.2 and P.W.3.  P.W.2 is an Orthopedic  
Surgeon whereas P.W.3 is a Dental Surgeon.  P.W.2 performed surgery to his left
tibia whereas P.W.3 performed surgery to fractured maxilla.  The appellant-
claimant was inpatient in Amrutha Laxmi Multi Specialty Hospital from 10-08-2004
to 23-08-2004.  
These facts are proved from the above said evidence.
7)      Then, coming to compensation, the Tribunal granted Rs.15,000/- each for
the two grievous injuries and Rs.3,000/- to the simple injury.  Though it
mentioned that the petitioner would have incurred expenditure towards
transportation charges, extra nourishment charges and attendant charges, it did
not grant any separate compensation for those items but included them in the
aforesaid amount of Rs.33,000/-.  Having regard to the nature of injuries and
the length of treatment, I think the compensation for the above items is very
low.  It is the case of the claimant that due to fracture maxilla, he could not
move his mouth and chew food items for considerable period and similarly, due to
fracture tibia, he could not pursue his daily activities.  Therefore, it goes
without saying that the petitioner must have suffered excruciating pain due to
the above injuries.  Considering it, for the pain and suffering due to grievous
injuries and also other simple injuries, an amount of Rs.50,000/- is held as
reasonable compensation and hence, the same is granted.  The evidence shows that  
the petitioner was inpatient in Amrutha Laxmi Multi Specialty Hospital,
Nizamabad, from 10-08-2004 to 23-08-2004.  Therefore, it is clear that the
claimant must have incurred incidental expenditure like transportation charges,
extra nourishment charges and attendant charges.  Though he could not produce 
relevant bills for those items of expenditure, still having regard to his
hospitalization and surgeries, it can be said that the petitioner incurred
expenditure under those heads.  Hence, he deserves a reasonable compensation for 
those items.  Accordingly, the petitioner is awarded Rs.10,000/- towards
transportation charges, attendant expenses and extra nourishment charges.
8)      Coming to the second argument of appellant on the aspect of Tribunal
rejecting compensation for his disability, perusal of the judgment would show
that the Tribunal held that though PW.2 deposed that claimant suffered 40%
disability, it cannot be believed because the claimant has not produced any
certificate issued by medical board or any authorized board.  It appears to me
that the reasoning given by the Tribunal for discarding the evidence of PW.2 is
not satisfactory.  It is not a hard and fast rule that an injured-claimant in
order to prove his disability must invariably produce a certificate issued by
medical board.  That may not be possible in all cases also.  Law does not say
that the factum of disability must be established only by a certificate issued
by medical board.  On the other hand, the factum of disability can be
established through a doctor who is medically competent to speak of the
concerned disability.  So, if a competent doctor appears before a Court of law
and explains the nature and extent of disability and the associated problems due
to that disability and if his competency is not challenged by the adverse party
and when no counter material is produced to establish what the doctor deposed is
false, then there is nothing wrong in Court accepting the evidence of such a
medical witness.  In that context, the evidence of PW.2 has to be scrutinized.
9)      PW.2 is an Orthopedic Surgeon attached to Amrutha Laxmi Multi Specialty  
Hospital, Nizamabad where the claimant took treatment.  PW.2 deposed that he
examined the claimant and treated him as inpatient from 10.08.2004 to 23.08.2004
and that the claimant was operated for left tibia and a rod was inserted.  PW.2
further deposed that he again examined the claimant on 27.10.2007 and issued
Ex.C.1- certificate, mentioning that the fractured left tibia was mal-united and
having mild infection at fracture site.  PW.2 deposed that the claimant suffered
40% partial permanent disability.  In the cross-examination, the competency of
PW.2 to speak of the disability aspect is not challenged.  It was only suggested
that he was deposing falsehood to help the patient, which he denied.  It was
also suggested that the claimant suffered only simple injuries and the same was
also denied.  So it can be said that the evidence of the doctor stood
unchallenged.  Further, the Insurance Company which claimed that the claimant
suffered only simple injuries and not any disability, did not adduce any contra
evidence like examining another specialist doctor or requesting the Court to
refer the claimant to medical board.  In these circumstances, I think the
evidence of PW.2 can be accepted.  Then the evidence of PW.2 would show that the 
functional disability of the claimant is only partial.  In the O.P, the claimant
described himself as attender in D.F.O office, Nirmal.  Having regard to the
nature of his job, it can be said that the partial permanent disability will not
completely disallow him to attend his job and daily pursuits.  Therefore,
considering all these aspects a sum of Rs.15,000/- is awarded as compensation
for disability.
10)     In view of the above discussion, compensation payable to the appellant-
claimant under different heads is detailed as below:

S.No. 
Compensation Head   
Amount Rs.  
1
Pain and Suffering      
50,000/-
2
Transportation, Extra Nourishment and Attendant Charges 
10,000/-
3
Compensation for Disability
15,000/-
4
Medical Expenditure 
29,965/-

TOTAL  
1,04,965/-

        Therefore, the appellant-claimant is entitled to the enhanced compensation
of Rs.45,000/- (Rs.1,04,965/- - Rs.59,965/-) against respondents 1, 3 and 4.
11)     In the result, this M.A.C.M.A. is partly allowed granting enhancement of
compensation of Rs.45,000/- (Rupees forty five thousand only) with proportionate
costs and simple interest at 7.5% per annum in favour of the appellant-claimant
and against respondents 1, 3 and 4.  The respondents 1, 3 and 4 are directed to
deposit the enhanced compensation amount within one month from the date of this 
judgment, failing which execution can be taken out against them.  No order as to
costs.
12)     Miscellaneous applications if any pending in this appeal, shall stand
closed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 29.11.2013

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