Accident claim - Non- examination of Doctor of the Medical Board Certificate is not fatal in every case - Amputation right leg up to knee and the certificate is enough to prove the case of degree of disability = National Insurance Co. Ltd.,Rep. by its Br. Manager..... Appellant ^Saheb @ Gadivan Saheb and another..... Respondents -Cited/ Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10587

Accident claim - Non- examination of Doctor of the Medical Board Certificate is not fatal in every case - Amputation right leg up to knee and the certificate is enough to prove the case of  degree of disability  =

when claimant in his evidence stated that his right leg
was operated upon and amputated above knee and he obtained Ex.A5 Disability  
Certificate from Medical Board, the appellant-insurance company in its cross-
examination did not challenge the factum of claimant meeting with accident and
loosening his right leg above knee by traumatic amputation etc., facts.  It
should be noted that the appellant-insurance company did not challenge the
authenticity of Ex.A5 Certificate.  It was its case in the cross-examination
that he managed the Medical Board and obtained the disability certificate with
more percentage.  So, a keen observation of cross-examination would show that
the appellant did not challenge the authenticity of Ex.A5 but only suggested
that a high percentage of disability was got manipulated in it.  In this
backdrop, Ex.A5 need not be discarded just because the doctor from Medical Board 
was not examined by the claimant.  
In Rajesh Kumar case (1st supra) cited by the
appellant, the Hon'ble Supreme Court, doubting the authenticity of disability
certificate, which was obtained two years after the accident, had held that the
same cannot be believed as the author of the certificate was not examined but in
the case on hand, as already observed supra, authenticity of the certificate was
not challenged.  Hence, non-examination of doctor is not a consequence here.
Then, coming to the percentage of disability, Ex.A6 Photograph of claimant
clearly shows that his right leg was traumatically amputated above knee.  Hence,
the percentage of disability as mentioned in Ex.A5 cannot be said to be on high
side.  It appears the claimant examined P.W.2 - Private Medical Practitioner and
filed Ex.C1 Certificate issued by him since he could not get the doctor who
treated him in Government Hospital, Nizamabad.  Though P.W.2 as also a competent  
doctor to issue disability certificate, when the matter of preference comes,
Ex.A5 can be accepted since it was issued by a team of doctors from Medical
Board.  Therefore, the Tribunal rightly accepted Ex.A5 in preference to Ex.C1.
Hence, I find no merit in the 1st contention of the appellant.

THE HON'BLE SRI JUSTICE U.DURGA PRASAD RAO        

M.A.C.M.A No.177 of 2009

02-12-2013

National Insurance Co. Ltd.,Rep. by its Br. Manager..... Appellant

^Saheb @ Gadivan Saheb and another..... Respondents

!Counsel for Appellants : Sri Kota Subba Rao

^Counsel for Respondent No.1: Sri L. Dayakar Reddy

<Gist:

>Head Note:

?Cases referred:
1) 2009 (1) ALD 21 SC
2) 2012 (1) ALT 812
3) 2013 ACJ 1935 (SC)

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO        

M.A.C.M.A. No. 177 OF 2009

JUDGMENT:
Challenging the compensation awarded in O.P.No.1730 of 2002 by the Motor
Accident Claims Tribunal-cum-I Additional District Judge, Nizamabad (for short,
'the Tribunal') as excessive, the National Insurance Company Limited filed the
instant M.A.C.M.A.
2.      The factual matrix of the case is thus:
a)      The 1st respondent in this appeal is the claimant before the Tribunal.  On
23-12-2001 at about 6.30 p.m. while he was travelling in an auto bearing No.AP
25 T 475 along with some others from Nizamabad to Arsapally and when their auto
reached Omkar Rice Mill at about 6.30 p.m., one Tata Sumo bearing No. AP 09 R
4665 came in opposite direction being driven by its driver at high speed and in
a rash and negligent manner and dashed the auto and caused the accident.  In the
resultant accident, the claimant suffered fracture to his right leg apart from
other injuries.  Immediately, he was shifted to Government Headquarter's
Hospital, Nizamabad, where operation was performed and his right leg above knee
was amputated.  After discharge, the claimant pleaded, he took treatment in some
other private hospitals by incurring medical expenditure of Rs.3,00,000/-.  His
further case was that prior to accident, he was working as Hamali in a rice mill
and earning Rs.10,000/- p.m. besides earning Rs.8,000/- p.m. by doing paddy
business.  Thus, he was earning Rs.18,000/- p.m.  Due to amputation of right
leg, the claimant pleaded that he is not able to do any work now and suffered
loss of earnings besides suffering physical disability.  The claimant averred
that the driver of Tata Sumo was responsible for the accident.  On all these
pleas, the claimant filed O.P.No.1730 of 2002 claiming Rs.15,00,000/- as
compensation under different heads against respondents 1 and 2 who are owner and
insurer of the offending vehicle.
b)      The 1st respondent remained ex parte and the 2nd respondent-insurance
company filed counter and opposed the claim on various grounds.
c)      During trial, P.Ws.1 and 2 were examined and Exs.A1 to A6 and Ex.C1 were
marked on behalf of claimant.  Policy copy filed by 2nd respondent was marked as
Ex.B1.
d)      Perusal of the award shows that having regard to the evidence of P.W.1-the
claimant and Ex.A.1-F.I.R. and Ex.A.2- Charge Sheet, the Tribunal held that the
driver of the Tata Sumo was responsible for the accident.
e)      Regarding compensation, the Tribunal, having regard to Ex.A.5-Disability
Certificate issued by District Medical Board, Nizamabad, whereunder the claimant
suffered 80% permanent disability, fixed compensation under different heads as
follows:
S.No.
Head of Compensation
Amount
Rs.
(i)
Compensation for disability
6,91,200-00
(ii)
Compensation for pain and suffering
50,000-00
(iii)
Compensation for future loss of earnings
1,00,000-00
(iv)
Compensation for medical expenses and transportation charges
50,000-00

TOTAL
8,91,200-00
Thus, the Tribunal awarded total compensation of Rs.8,91,200/- with
proportionate costs and interest at 7.5% p.a. from the date of O.P. till the
date of deposit.
Hence, the appeal by the insurance company.
3.      Heard Sri K.Subba Rao, learned counsel for appellant and Sri L.Dayakar
Reddy, learned counsel for 1st respondent.
4.      Now, the point for determination is:
"Whether the award of the Tribunal is legally and factually sustainable"?
5.      POINT: Learned counsel for appellant challenged the quantum of
compensation as excessive on two grounds.  Firstly, he argued that the Tribunal
erred in placing implicit reliance on Ex.A5 Disability Certificate and accepting
the disability of claimant as 80%, though no doctor from the Medical Board who
issued Ex.A5 was examined by the claimant in proof of its authenticity.  Learned
counsel argued that in order to prove the disability certificate, concerned
doctor who issued it must be examined.  On this point, he relied upon the
decision rendered in Rajesh Kumar @ Raju Vs. Yudhvir Singh & Another1.  He
further submitted that on the face of Ex.A5, it was clearly mentioned that the
same was not valid for legal purposes.  Hence, the Tribunal ought not to have
accepted Ex.A5 for fixation of disability of the claimant.  He further argued
that in this case, another doctor i.e. P.W.2, who examined the claimant, issued
Ex.C1 Disability Certificate, as per which the claimant suffered only 65%
permanent disability.  Therefore, there is no consistency regarding the
percentage of disability suffered by the claimant.  Hence, the Tribunal, instead
of taking higher percentage, should have taken lower percentage of disability.
6.      Secondly, he argued that the Tribunal erred in accepting the monthly
income of claimant as Rs.4,500/- for computation of compensation for loss of
earning power.  He argued that the claimant has not placed any cogent evidence
regarding his alleged monthly income of Rs.18,000/- by way of doing Hamali work
and paddy business prior to accident.  Since there is no proper evidence
regarding his earnings, the Tribunal ought to have accepted his income as
Rs.15,000/- p.a. as laid down in 2nd Schedule of the M.V. Act or at best
Rs.3,000/- p.m. which could have been a reasonable one.  He, thus, prayed for
reassessment of compensation.
7.      Per contra, on the aspect of disability, learned counsel for 1st
respondent argued that as per Ex.A5 Certificate issued by Medical Board, the
claimant suffered 80% permanent disability.  The 2nd respondent-insurance
company did not challenge the authenticity of Ex.A5 in the cross-examination of
P.W.1.  Hence, the appellant now cannot argue that no doctor from the Medical
Board was examined.  Learned counsel submitted that in fact, the claimant wanted
to examine the doctor, who treated the claimant in the Government General
Hospital, Nizamabad, to prove the disability aspect but since the said doctor is
not working there now, he could not examine him.  Therefore, as a precautionary
measure, he obtained Ex.C1 Disability Certificate from P.W.2 and examined him in
the Court.  Since Ex.A5 was issued by the Medical Board whose authenticity was
unchallenged, the Tribunal rightly accepted the percentage of disability as
mentioned in Ex.A5 and computed the compensation accordingly and therefore,
there is no reason to find fault with the same.  Learned counsel further argued
that though physical disability of the claimant is only 80% as shown in Ex.A5
but in fact, the claimant suffered 100% functional disability because he cannot
now attend the Hamali work in the rice mill as he did before.  Therefore, the
Tribunal, in fact, ought to have accepted his disability as 100% instead of 80%
and ought to have granted compensation accordingly.  He relied upon the decision
rendered in Sohel Sardar Khan Vs. S.Rama Pathi Rao2 on the point that
compensation has to be granted to the extent of functional disability.  Learned
counsel also argued that in case of a disability, the claimant will be entitled
to compensation not only for loss of earning power due to disability but also
for the disability itself.  On this point, he relied upon the decision rendered
in S.Manickam Vs. Metropolitan Transport Corporation Limited3.  Learned counsel
submitted that in the instant case, the Tribunal granted compensation for loss
of earning power alone but not for disability.  Therefore, the claimant is
entitled to compensation for the disability also.  Thus, while supporting the
award of the Tribunal, learned counsel prayed for enhancement of compensation.
8.      The 1st contention of appellant is concerned, perusal of the evidence
shows that the claimant, in addition to filing Ex.A5- Disability Certificate
issued by Medical Board showing that he suffered 80% permanent disability, also
examined P.W.2 and filed Ex.C1- Disability Certificate issued by P.W.2 showing
that he suffered 65% disability.  In the light of the above two different
percentages of disability and non-examination of the doctor from Medical Board,
the appellant now contends that there is no consistency about the extent of
disability suffered by the claimant and hence, the Tribunal ought to have
accepted the lower percentage.  This contention of appellant cannot be accepted
for the main reason that when claimant in his evidence stated that his right leg
was operated upon and amputated above knee and he obtained Ex.A5 Disability  
Certificate from Medical Board, the appellant-insurance company in its cross-
examination did not challenge the factum of claimant meeting with accident and
loosening his right leg above knee by traumatic amputation etc., facts.  It
should be noted that the appellant-insurance company did not challenge the
authenticity of Ex.A5 Certificate.  It was its case in the cross-examination
that he managed the Medical Board and obtained the disability certificate with
more percentage.  So, a keen observation of cross-examination would show that
the appellant did not challenge the authenticity of Ex.A5 but only suggested
that a high percentage of disability was got manipulated in it.  In this
backdrop, Ex.A5 need not be discarded just because the doctor from Medical Board 
was not examined by the claimant.  In Rajesh Kumar case (1st supra) cited by the
appellant, the Hon'ble Supreme Court, doubting the authenticity of disability
certificate, which was obtained two years after the accident, had held that the
same cannot be believed as the author of the certificate was not examined but in
the case on hand, as already observed supra, authenticity of the certificate was
not challenged.  Hence, non-examination of doctor is not a consequence here.
Then, coming to the percentage of disability, Ex.A6 Photograph of claimant
clearly shows that his right leg was traumatically amputated above knee.  Hence,
the percentage of disability as mentioned in Ex.A5 cannot be said to be on high
side.  It appears the claimant examined P.W.2 - Private Medical Practitioner and
filed Ex.C1 Certificate issued by him since he could not get the doctor who
treated him in Government Hospital, Nizamabad.  Though P.W.2 as also a competent  
doctor to issue disability certificate, when the matter of preference comes,
Ex.A5 can be accepted since it was issued by a team of doctors from Medical
Board.  Therefore, the Tribunal rightly accepted Ex.A5 in preference to Ex.C1.
Hence, I find no merit in the 1st contention of the appellant.
9.      The 2nd contention of appellant is with regard to earnings of the
claimant.  The Tribunal, observing that the claimant did not place any record
for proving his monthly income as Rs.18,000/-, has fixed his monthly income at
Rs.4,500/-.  This income was fixed basing on the facts that his profession was
Hamali at Dasaradh Rice Mill and he was a Youngman of 38 years old.  Hence, the
observation of Tribunal cannot be found fault.  In the result, I see no merits
in the contentions raised by the appellant.
10.     Coming to the submission of learned counsel for 1st respondent, he sought
for enhancement of compensation on the submission that the claimant suffered
100% functional disability and compensation must commensurate with it.  This
argument of the learned counsel for the 1st respondent cannot be accepted
because he did not prefer any appeal challenging the adequacy of compensation.
The 2nd argument of 1st respondent is that as per Apex Court's decision stated
supra, he is entitled to compensation not only for loss of earning power due to
disability but also for disability itself.  He is right in the light of the
aforesaid decision.  In fact, the Tribunal granted compensation separately for
loss of earning power due to disability and disability itself.  However, it
appears by mistake, it mentioned "compensation for loss of earning power due to
disability" as "compensation for disability".  Similarly, by mistake, it
mentioned "compensation for future loss of earnings" instead of "compensation
for disability" (vide paragraph Nos. 15 to 17 of the award).  So, the 1st item
of compensation mentioned in paragraph No. 17 of the award can be treated as
compensation for loss of earning power due to disability.  Similarly,
compensation mentioned in item No. 3 of the award can be treated as compensation
for disability.
11.     In the result, with the above observations, this M.A.C.M.A. is dismissed.
No costs.  Pending miscellaneous petitions in this appeal, if any, shall stand
dismissed.

__________________________  
U. DURGA PRASAD RAO, J.    
Date: 02-12-2013

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.