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2011 DIGILAW 2646 (RAJ)

Yogita v. Anil Kumar

2011-12-01

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by claimant Yogita through her father and natural guardian Anil Kumar, dissatisfied with quantum of compensation awarded by learned Motor Accident Claims Tribunal (Special Judge Dacoity Affected), Bharatpur, vide its award dated 20.02.2008 in MAC Case No.42/2007. 2. Claimant-appellant filed a claim petition for compensation of Rs.13,35,000/- for injuries sustained by her in a road accident, before learned Tribunal, asserting that on 11.12.2006 at 8.30 AM, while she was moving near Dutta Guest House Lane, Bharatpur, all of a sudden a moped (Vikky) No. RJ-05 5M 1419, which was being driven rashly and negligently by respondent No.1, came in a high speed and dashed against her, as a result of which she sustained grievous injuries on the head. At the time of accident, she was 14 years of age. Due to the acci-dent, she sustained 70% permanent disablement. Learned Tribunal, however, awarded lump sum compensation of Rs.50,000/- only. 3. Shri Anoop Agarwal, learned counsel for appellant, has argued that learned Tribunal has raised a doubt about genuineness of disability certificate and, only on the ground that there was discrepancy in the dates of two documents, namely, Exhibit-16, doctor's prescription, which is in fact dated 11.12.2006 but the doctor in a very hasty manner indicated it to be 11.12.00, and Exhibit-15 on which the date looks like 21.9.02, but in fact it is 21.09.2007. On the basis of this, learned Tribunal has upheld the argument of the non-claimant that the appellant was mentally retarded even prior to the date of accident and that her intelligence quotient level (for short, 'IQ level') was indicated as 25% by the medical board, which in fact was already existing before the accident took place, and false bills were got prepared. Learned Tribunal has also erred in law in doubting the transportation bills whereas the fact is that after the accident the appellant had to be immediately brought to the S.M.S. Government Hospital, Jaipur, where she remained hospitalized for three days. The first medical board in its opinion report dated 13.01.2007 has acknowledged the fact that CT scan skull report of Government R.B.M. Hospital, Bharatpur dated 11.12.2006 reveals Pneunoceplatic seen with fracture of right of occipital region (NCCT). The first medical board in its opinion report dated 13.01.2007 has acknowledged the fact that CT scan skull report of Government R.B.M. Hospital, Bharatpur dated 11.12.2006 reveals Pneunoceplatic seen with fracture of right of occipital region (NCCT). The second medical board in its opinion dated 08.10.2007 has opined total disablement to be 75% which is permanent in nature and IQ level to be 25% as ascertained by the psychiatrist. Learned counsel argued that the bills of actual medical expenses amounting to Rs.18000/- and transportation bills amounting to Rs.18400/- were produced. The Tribunal has awarded total sum of Rs.50,000/-, that means that Rs.13600/- has only been awarded for permanent disablement assessed at 75%, which is highly unjust and illegal. Just because the appellant is a female child aged 14 years does not mean that she has not sustained any injury or permanent disablement and that she would not be entitled to reasonable amount of compensation. Learned counsel for the appellant has argued that the medical certificate showing permanent disablement, was issued before the expiry of period of six months from the date of accident. 4. It is, therefore, prayed that the appeal be allowed and appellant be awarded suitable amount of compensation enhancing the amount awarded by learned Tribunal. 5. Smt. Archana Mantri, learned counsel for the respondent insurance company, opposed the appeal and stated that appellant is mentally retarded as stated by her father Anil Kumar (AW-1). It was argued that two documents are doubtful because in Exhibit-16, doctor's prescription, the date is indicated to be 11.12.00, and Exhibit-15 the date is indicated to be 21.9.02. The Tribunal, taking note of the fact that the appellant was subjected to treatment by a psychiatrist, has not accepted the disability of 75% to be correct. Learned counsel argued that when the appellant was hospitalized in Jaipur, there was no reason why the permanent disability certificate was not obtained from Jaipur Hospital itself and why such certificate was obtained from Government Hospital, Bharatpur. Besides, medical disability certificate is not on the prescribed Proforma given in Rule 10.21 of the Motor Vehicles Rules. It was further argued that the claimant could have appeared or produced before the Tribunal to substantiate the claim of permanent disablement of 75%, which has not been done. The amount of compensation awarded by learned Tribunal is just and reasonable. Learned counsel has referred to the statement of NAW-1 Dr. It was further argued that the claimant could have appeared or produced before the Tribunal to substantiate the claim of permanent disablement of 75%, which has not been done. The amount of compensation awarded by learned Tribunal is just and reasonable. Learned counsel has referred to the statement of NAW-1 Dr. Girdhari Lal Agarwal, who was one of the members of Medical Board and has given the report (Exhibit-53). This witness has stated that opinion regarding IQ level of Yogita was given by Dr. Devi Singh, who was a psychiatrist, and it is Dr. Devi Singh whose opinion found place in the report (Exhibit-53) and members of the medical board only signed it. Learned counsel for the respondent has argued that the accident took place on 11.12.2006 whereas the Medical Board, who conducted the medical examination of Yogita, gave its report on 08.10.2007, which was very much delayed. Learned counsel for respondent has argued that the appellant remained hospitalized for three days in S.M.S. Government Hospital, Jaipur, which clearly shows that her condition was not of that serious. It is therefore prayed that the appeal be dismissed. 6. I have given my anxious and thoughtful consideration to rival submissions and perused the material on record. 7. Although, it is true that AW-1 Anil Kumar, father of the claimant, has stated that mental balance of her daughter is not proper but then he also stated that he lodged first information report of the accident on the very first day. The health condition of the appellant was not proper as she was vomiting blood. She was taken to S.M.S. Government Hospital, Jaipur. She remained hospitalized for three days. He has denied the suggestion that document Exhibit-16 is dated 11.12.2000 but in fact it is dated 11.12.2006. He has stated that he had to take the appellant to Jaipur for treatment at least for 10-12 times and that vehicle No.RJ-05 U-0013 was hired by him whenever he went to Jaipur. AW-2 Laxmi Chand Sharma, the shop owner, before whom the accident took place, has proved the accident and also the fact that the appellant had received head injury. AW-3 Rambabu has stated that the appellant sustained a fracture on head which was a grievous injury and that after the accident she lost her mental balance. She was subjected to examination by medical board which found her to be permanent disabled upto 75%. AW-3 Rambabu has stated that the appellant sustained a fracture on head which was a grievous injury and that after the accident she lost her mental balance. She was subjected to examination by medical board which found her to be permanent disabled upto 75%. NAW-1 Dr. Girdhari Lal Agrawal has stated that he holds a degree in MD (medicines) and that in his branch all kind of disease are treated. The Principal Medical Officer nominated him as member of Medical Board, which consisted of three doctors. The board opined the IQ level to be 25% and permanent disablement of 75%. It was not possible that IQ level of the appellant can now be raised. This witness has been cross-examined to verify that they followed the opinion of Dr. Devi Singh, regarding assessment of IQ level of the appellant, which was assessed to be 25%. He further stated that since the head injury was treated 21.12.2006 and after lapse of such a long time there is no possibility of improvement in her IQ level. He stated that he gave this opinion on the basis of knowledge of medical science. 8. There can be difference of opinion as to the extent of permanent disability but the evidence, both qualitatively and quantitatively, has proved the fact that the appellant sustained fracture of right occipital region of the scull. Mere fact that she was discharged after three days of hospitalization from Neurosurgery Ward, a unit of S.M.S. Government Hospital, Jaipur, cannot be a reason to hold that she did not receive head injury and that head injury was not responsible for her present state of mind. Although, a suggestion has been given by the non-claimant insurance company that this appears to be an old ailment but whether or not this suggestion is to be accepted, is to be tested on the scrutiny of evidence available on record vis-a-vis the fact whether the appellant has been able to improve herself in IQ level. This argument of the insurance company has found favour by learned Tribunal because it found discrepancy in dates of two documents (Exhibit-15 and 16), which are prescriptions of doctors. Exhibit-15 appears to be dated 21.09.2002 which, according to the appellant, is 21.09.2007. The other one is Exhibit-16, which appears to be dated 11.12.2000 which, according to the appellant, is dated 11.12.2006. Exhibit-15 appears to be dated 21.09.2002 which, according to the appellant, is 21.09.2007. The other one is Exhibit-16, which appears to be dated 11.12.2000 which, according to the appellant, is dated 11.12.2006. AW-1 Anil Kumar, father of claimant, was confronted with these two documents and he has denied that these documents are of the years 2002 and 2000 respectively and asserted that they are related to 2007 and 2006, respectively. Exhibit-16 is the prescription of psychiatrist Dr. Vinod Gupta. The age of the appellant therein is indicated as 14 years. When this prescription is compared with the medical bill of Astha Medical Store, Rajendra Nagar, Bharatpur, dated 11.12.2006, the medicines that were supplied by the said medical store, were the same that were prescribed by Dr. Vinod Gupta in Exhibit-16. Confusion in dates happens because the doctors, while giving prescription in usual practice, do not take care about the beauty of their handwriting and handwriting of some of them for that matter may not even otherwise be legible, let alone beautiful. Then there is another reason to accept that this prescription is of the year 2006, which is that on the top of the prescription the ailment indicated is head injury and at the bottom CT scan has been prescribed and reference has been made to Surgical OPD. Similarly, Exhibit-15 prescription is of Dr. Devi Singh, who, in a very hasty and careless manner, wrote the date to be 21.9.02, but therein also the age of claimant-appellant Yogita has been indicated to be 13 years, which shows that figure 7 has come to be indicated as 2' in the year, and the ailment has been indicated to be head injury and MRI has been prescribed. Number of the medical bills right from Exhibit-17 to Exhibit-52 and most of which are either from chemist of Jaipur or Bharatpur, have been produced on the record by the claimant in order to prove the expenditure incurred by the appellant's father on her treatment. Therefrom it is also proved that there was continuous treatment for a considerable long time. 9. Therefrom it is also proved that there was continuous treatment for a considerable long time. 9. Contention that the disability certificate should be only on prescribed Proforma and should have been obtained from S.M.S. Government Hospital, Jaipur, is noticed to be rejected for the reason that AW-1 Anil Kumar, father of the appellant, in his statement, has stated before the Court that he studied only upto 9th standard and he failed in 10th standard. This proves that this man had limited educa-tion and that he came from Bharatpur with her daughter for treatment when she was vomiting blood and was advised CT scan and MRI. Her priority at that time would not have been to immediately obtain disability certificate. The treating Neurosurgeon/ physician of the claimant allowed her to saddled down because normally Neurosurgery is not referred to undertake as the risk therein is of high level. The patient is allowed to saddle down. The fracture of occipital region of the skull got healed in the course of time on its own. But then there are two reports of different medical boards on the record. Report dated 13.1.2007 of the Medical Board was given by three Doctors of Govt. General Hospital, Bharatpur, which states that CT scan report of Govt. R.B.M. Hospital, Bharatpur dated 11.12.2006 reveals Pneunoceplatic seen with fracture of right of occipital region (NCCT). From the report dated 08.10.2007 of another Medical Board, it mentions that CT scan report of Government R.B.M. Hospital, Bharatpur, dated 11.12.2006 reveals Pneumocephalus with fracture of right of occipital region. Department of Neurosurgery S.M.S. Hospital, Jaipur at 21.12.2006 reveals fracture of right occipital with Pneumocephalus with case of vertigo ataxia ataxic gate as a OPD. MRI drawn dated 10.10.2007 S.M.S. Hospital, Jaipur reveals focal areas of glioses in Bilateral peri ventricular deep white matter? Sequel of old contusions. EEG R.M.B. Hospital Bharatpur dated 13.10.2007 with I.D. No.480 reveals slow waves suggestive of neural disorder. She does not have colour concept and mental suffering and severe degree with toilet training not achieved. In the opinion of Medical Board said candidate's total disability is 75% (seventy five percent) which is permanent in nature. IQ is 25% as assessed by psychiatrist. In the second Medical Board, Dr. She does not have colour concept and mental suffering and severe degree with toilet training not achieved. In the opinion of Medical Board said candidate's total disability is 75% (seventy five percent) which is permanent in nature. IQ is 25% as assessed by psychiatrist. In the second Medical Board, Dr. Devi Singh himself was one of the members and he explained the statement of NAW-1 Dr.Girdhari Lal Agarwal, who stated that opinion of Dr.Devi Singh about the IQ level of the claimant, was accepted. 10. In view of above discussion, I am of the view that the award of meager sum of Rs.50,000/- as compensation is highly unjust and insignificant compared to the extent of injury, trauma and disablement which the appellant suffered. Moreover, the said award also includes compensation on the head of actual medical expenses, transportation etc. Now, the question arises as to what should be the reasonable amount of compensation. The appellant at the time of accident was 14 years of age and now she has become 19 years of old. She will have to survive in this state of mind and disabled body for several years and would entirely remain dependent on others. In such circumstances, it is considered appropriate that she receives such an amount as compensa-tion that may alleviate her trauma and pain. Considering the situation in which the appellant has been rendered now after the accident and looking to her pain and suffering and the extent of disablement, this Court deems it appropriate that in addition to the amount which has already been awarded to the appellant, she should be paid additional amount of Rs.3,00,000/- as compensation. Ordered accordingly. 11. The appellant shall thus be entitled to lump sum compensation of Rs.3,00,000/- on all the heads, in addition to the amount of Rs.50,000/- awarded by the Tribunal. This amount may be invested in a fixed deposit receipt of any nationalized bank with standing instruction to pay monthly interest so accrued thereon, to her father till he survives and thereafter to her natural guardian. The investment so made would be irrevocable. This amount may be invested in a fixed deposit receipt of any nationalized bank with standing instruction to pay monthly interest so accrued thereon, to her father till he survives and thereafter to her natural guardian. The investment so made would be irrevocable. It is clarified that in case the appellant is married, then an amount of Rs.1,00,000/- may be allowed to be withdrawn by her father or natural guardian and Rs.2,00,000/- shall remain continuously invested with the nationalized bank and monthly interest so accrued thereon shall be paid either to her father or her natural guardian for the welfare of the appellant. The appeal is accordingly allowed.