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2011 DIGILAW 878 (AP)

Mandava Surendra Kumar v. B. A. Padmanabha Rao

2011-10-13

N.V.RAMANA, P.DURGA PRASAD

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JUDGMENT : P. DURGA PRASAD, J. 1. This appeal is at the instance of claimant directed against the award passed in O.P. No. 2490 of 2004 by the Third Additional Chief Judge, City Civil Court, Hyderabad on 20.7.2007. The appellant herein has originally filed a petition claiming compensation of Rs. 12,50,000/- and subsequently had got it enhanced by way of an amendment to Rs. 20,50,000/-. The facts leading to the filing of the petition by the petitioner are that on 12.3.2004 while the claimant was proceeding on his motor cycle, a Maruti van bearing registration No. AP 28-L 3130 came in a rash and negligent manner from the opposite direction and dashed against the motor cycle of the claimant, as a result of which he fell down and sustained injuries. He took treatment in Apollo Hospital and at Udai Clinic and suffered disability of 40 per cent. As he is a LIC agent and also running a press, he sustained huge loss of his earnings and future prospects. 2. The respondent No. 1, who is the owner-cum-driver of Maruti van, has opposed the application by pleading that the claimant was talking on cell phone bending his head towards shoulder and negligently drove the vehicle and met with accident and there is no negligence on his part. 3. The respondent No. 2 insurance company has opposed the application pleading that the respondent No. 2 was driving the vehicle in intoxicated condition, which is an offence, therefore the liability under the policy has ceased, as such they are not liable to pay any compensation. 4. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the accident occurred on 12.3.2004 at about 4:45 p.m. due to rash and negligent driving of Maruti van bearing No. AP 28-L 3130 by its driver causing permanent disability to the petitioner? (2) Whether the petitioner is entitled to compensation and if so, to what amount and from which of the respondents? (3) To what relief? 5. The claimant examined himself as PW 1 and also examined PWs 2 to 6 on his behalf and got marked Exhs. A1 to A14 and Exh. X1. On behalf of the insurance company, RW 1 was examined and got marked Exhs. B1 to B3. 6. (3) To what relief? 5. The claimant examined himself as PW 1 and also examined PWs 2 to 6 on his behalf and got marked Exhs. A1 to A14 and Exh. X1. On behalf of the insurance company, RW 1 was examined and got marked Exhs. B1 to B3. 6. Taking into consideration the oral and documentary evidence, the Tribunal has held issue No. 1 in favour of the petitioner holding that the accident occurred due to rash and negligent driving of the vehicle by the respondent No. 1. 7. With regard to issue No. 2, the Tribunal awarded compensation of Rs. 5,36,200/- for the injuries sustained by the claimant. 8. Aggrieved by the said award and decree, the claimant has filed the present appeal for enhancement of compensation. 9. Learned counsel for appellant has pleaded that the Tribunal has failed to take into consideration the disability certificate issued by PW 3 and also the disability certificate issued by the Medical Board of Osmania General Hospital, Hyderabad while awarding compensation for the injuries sustained by the petitioner. He further pleaded that the Tribunal has failed to take into consideration the medical bills despite examination of PWs 4 and 5. 10. Learned counsel for appellant has further pleaded that even though the claimant examined physiotherapist as PW 6 and the attendant as PW 2, the Tribunal has not awarded any amount for physiotherapy treatment and also attendant charges. He further pleaded that the Tribunal has failed to award any amount towards loss of earnings. 11. Learned counsel for the appellant has further pleaded that the compensation awarded by the Tribunal towards pain and suffering, loss of amenities in life, nutritious food is very meagre. 12. The learned counsel appearing for the insurance company has supported the award passed by the Tribunal and pleaded that the Tribunal has rightly rejected the disability certificate issued by PW 3 and also the disability certificate issued by the Medical Board. 13. The claimant as PW 1 has stated that he sustained 13 fractures in the said accident and immediately he was shifted to Apollo Hospital, Jubilee Hills, Hyderabad. He took treatment as inpatient from 12.3.2004 to 26.3.2004 and was operated 6 times for different fractures in the said hospital and after discharge he continued his treatment as outpatient. 13. The claimant as PW 1 has stated that he sustained 13 fractures in the said accident and immediately he was shifted to Apollo Hospital, Jubilee Hills, Hyderabad. He took treatment as inpatient from 12.3.2004 to 26.3.2004 and was operated 6 times for different fractures in the said hospital and after discharge he continued his treatment as outpatient. He also took treatment at Uday Hospital and underwent operation twice and later he took treatment in Udai Clinic and at Ahuja Polyclinic, Secunderabad with Dr. V.K.V. Prasad, Ortho-paedician and spent an amount of Rs. 8,00,000/- in different hospitals. According to him there is shortening of his right leg by about 2 inches and stiffness of right hip, knee, ankle and right wrist and limitation of movements. Dr. V.K.V. Prasad, treating him as outpatient, assessed disability at 40 per cent partial permanent after examining him clinically and radiologically and issued the disability certificate, Exh. A7. 14. The claimant in order to establish the disability certificate has examined Dr. V.K.V. Prasad as PW 3. According to him, PW 1 came to his clinic on 5.6.2006 and after examining him clinically he advised him to get X-rays of right hip, right thigh, right leg and right wrist. On 19.9.2006 PW 1 came back to him with X-rays and he has issued the disability certificate, Exh. A7. According to him, the disability is 40 per cent permanent and partial. The Tribunal has disbelieved the disability certificate issued by PW 3 as he was not the treating doctor and he has only issued the disability certificate after more than 2 years of the accident. PW 3 also admitted in his evidence that PW 1 came to his clinic on 5.6.2006 and according to him PW 1 sustained injuries in March 2004. He has issued Exh. A7 only basing on the records produced by PW 1 and also by clinical examination. As per the evidence of PW 3, it is evident that PW 1 approached him only for the purpose of issuing disability certificate after more than 2 years of his sustaining injuries. Therefore, the Tribunal has rightly disbelieved the disability certificate, Exh. A7, issued by PW 3. 15. The next contention of the counsel for the claimant is that the disability certificate issued by the Medical Board was also not considered by the Tribunal. The disability certificate issued by the Medical Board was marked as Exh. Therefore, the Tribunal has rightly disbelieved the disability certificate, Exh. A7, issued by PW 3. 15. The next contention of the counsel for the claimant is that the disability certificate issued by the Medical Board was also not considered by the Tribunal. The disability certificate issued by the Medical Board was marked as Exh. A14, which was issued on 2.11.2006. The doctor who has issued the Exh. A14 was not examined by the petitioner. Moreover, PW 1 was examined before the Tribunal in the month of October 2006 and cross-examined on 10.11.2006, but Exh. A14 was not produced by him on that date. But the said document, Exh. A14, was marked by the petitioner by recalling himself on 8.3.2007, by that date PW 3, who has issued Exh. A7, was already examined before the Tribunal. Therefore, it appears only to overcome the evidence of PW 3, the claimant subsequently got marked Exh. A14. As the Exh. A14 was not proved by him, the same cannot be taken into consideration for assessing the disability. Thus, the Tribunal has rightly rejected the Exh. A7 and Exh. A14 disability certificates. 16. The Claims Tribunal has awarded an amount of Rs. 1,25,000/- for 5 fractures at the rate of Rs. 25,000/- for each fracture holding that the doctor, who has treated the petitioner, was not examined before the Tribunal. The petitioner got marked Exh. A4, discharge summaries, issued by Apollo Hospital. 17. As per the discharge summary dated 26.3.2004, the claimant was admitted in the hospital on 12.3.2004 and discharged on 26.3.2004 and the diagnosis was recorded as: (1) Fracture shaft of right femur (Grade-I, compound comminuted), external fixator + inter-fragmentary screw application done on 12.3.2004, external fixator removal + DC plating (18 holed) done on 17.3.2004. (2) Fracture shaft of right tibia and fibula (Grade-I, compound comminuted), DC plating (14 holed) + allografting done on 12.3.2004. (3) Comminuted fracture right patella, circumferential wiring done on 15.3.2004. (4) ICNF right femur with pelvic diastasis, AO cannulated cancellous screw fixation done on 15.3.2004, readjustment of screws done on 17.3.2004. (5) Comminuted fracture distal end of right radius with Druj diastasis and carpal instability, Ellis plating and cast application done on 15.3.2004. (6) Full thickness heel pad avulsion right foot, debridement + reconstruction done on 12.3.2004. (7) Fracture 3 and 4 ribs right side, treated conservatively. (8) Fracture neck or right scapula, treated conservatively. (5) Comminuted fracture distal end of right radius with Druj diastasis and carpal instability, Ellis plating and cast application done on 15.3.2004. (6) Full thickness heel pad avulsion right foot, debridement + reconstruction done on 12.3.2004. (7) Fracture 3 and 4 ribs right side, treated conservatively. (8) Fracture neck or right scapula, treated conservatively. (9) Fracture proximal phalanx left little finger, treated conservatively. (10) Fracture shaft of 4th MC and fracture shaft of proximal phalanx middle finger right hand, treated conservatively. 18. As per the discharge summary dated 30.9.2004, he was readmitted in hospital on 28.9.2004 and discharged on 30.9.2004 and diagnosis was recorded as old united fracture of distal end of right radius with Ellis plate in situ and Ellis plate removal done on 29.9.2004. 19. Apart from the above said discharge summaries, the petitioner also produced discharge summary issued by Udai Clinic Ortho-paedic Centre, which is marked as Exh. A5. As per Exh. A5, he was admitted on 1.5.2005 and discharged on 8.5.2005 and again admitted on 12.5.2006 and discharged on 18.5.2006. Diagnosis was recorded as old non-union fracture femur with pad right knee and treatment was given in arthroscopic debridement right knee. 20. Therefore, the petitioner has sustained 10 fractures as mentioned in Exh. A4 discharge summary issued by Apollo Hospital. The Tribunal has disbelieved the said discharge summaries only on the ground that the doctor, who has treated the claimant, was not examined. Even though the doctor was not examined before the Tribunal, since the said documents were marked through PW 1, the same can be relied upon for the purpose of establishing the injuries sustained by him. The Tribunal has taken into consideration only 5 fractures as stated by PW 3, but PW 3 examined PW 1 after lapse of more than two years of his sustaining injuries and he found fractures only basing on the X-rays produced by him, whereas Exh. A4 was issued immediately after the accident. From Exh. A4 it is evident that the petitioner has sustained 10 fractures and out of 10 fractures, 6 fractures were operated and other 4 fractures were treated conservatively. The Tribunal has taken into consideration only 5 fractures and awarded Rs. 25,000/- for each fracture. The said 5 fractures relied upon by the Tribunal are: (1) Interlocking nail in right femur with delayed union was found. (2) Mal-united fracture of both bones of right leg. The Tribunal has taken into consideration only 5 fractures and awarded Rs. 25,000/- for each fracture. The said 5 fractures relied upon by the Tribunal are: (1) Interlocking nail in right femur with delayed union was found. (2) Mal-united fracture of both bones of right leg. (3) Mal-united fracture of right patella. (4) Mal-united fracture of right radius. (5) Mal-united fracture of bone of 5th metatarsal. 21. Thus, the above said fractures relied upon by the Tribunal are only mal-united fractures. The petitioner is entitled for compensation for the fractures sustained by him, but not for the mal-union of fractures even after taking treatment. Therefore, the claimant is entitled for compensation for the said 10 fractures referred to in Exh. A4. Since the claimant was treated by external fixator, inter-fragmentary screw application and DC plating for the 6 fractures, he can be awarded a sum of Rs. 50,000 each for the said 6 fractures, for which he has undergone operations on different dates as mentioned in Exh. A4. The other 4 fractures, which were treated conservatively, are lesser in severity, as such the claimant can be awarded an amount of Rs. 5,000/- each for the said 4 fractures. Thus, in all the claimant is entitled for Rs. 3,20,000/- towards fractures sustained by him in the said accident. The petitioner had undergone operations on 12.3.2004, 15.3.2004 and 17.3.2004 for the said fractures and took treatment at Apollo Hospital and at Udai Clinic. In view of nature of fractures sustained by him and the nature of operations conducted for the said fractures, he might have undergone pain and suffering during the period of treatment, but the Tribunal has awarded only Rs. 10,000/- towards pain and suffering, which is very meagre. In view of the nature of injuries sustained and treatment taken by him, he can be awarded a sum of Rs. 25,000/- for pain and suffering. 22. The appellant's counsel has pleaded that Claims Tribunal has not awarded any amount towards medical expenses in spite of examining PWs 4 and 5. PW 4 is billing manager in Apollo Hospital. According to her, Exh. A10 was issued by their hospital for an amount of Rs. 2,71,862.26/-. PW 5 is billing in-charge of Udai Clinic. According to her, they have issued discharge bill for Rs. 1,09,350/-. The Tribunal has awarded both the amounts towards medical expenditure incurred by the claimant. 23. PW 4 is billing manager in Apollo Hospital. According to her, Exh. A10 was issued by their hospital for an amount of Rs. 2,71,862.26/-. PW 5 is billing in-charge of Udai Clinic. According to her, they have issued discharge bill for Rs. 1,09,350/-. The Tribunal has awarded both the amounts towards medical expenditure incurred by the claimant. 23. The Claims Tribunal has awarded Rs. 10,000/- towards loss of amenities in life. In view of nature of fractures sustained by the petitioner and the prolonged treatment taken by him for the said injuries, he can be awarded a sum of Rs. 50,000/- towards loss of amenities in life. 24. The Tribunal has awarded Rs. 10.000/- towards nutritious food, transportation and assistance. According to the appellant's counsel, even though PW 2 was examined to establish the expenditure incurred by the petitioner for employing the attendant, the Tribunal has not considered the said expenditure incurred by him. PW 2 K. Dass has stated in his affidavit that he is working as servant/attendant in the house of PW 1, who sustained multiple fracture injuries in a road accident and due to the said accident he was bedridden. He was working as servant/attendant from May 2004 onwards on monthly salary of Rs. 2,500/- with food and still he is with PW 1. But he did not speak anything about the nature of work performed by him as attendant. When the petitioner could not establish the nature of duties performed by PW 2, who was attending on him and from the evidence of PW 2, it can only be presumed that he is working in the house of PW 1 as a servant but not as attendant to PW 1, as such the claim of Rs. 2,500/- p.m. towards salary of attendant was rightly rejected by the Tribunal and the claimant is not entitled for the same. However, in view of nature of injuries and the treatment taken by him, the claimant can be awarded Rs. 25,000/- towards nutritious food and transportation. 25. The appellant's counsel has further pleaded that Tribunal has not considered the expenditure incurred by the claimant towards physiotherapy even though the doctor, who has given physiotherapy, is examined as PW 6. PW 6, Dr. 25,000/- towards nutritious food and transportation. 25. The appellant's counsel has further pleaded that Tribunal has not considered the expenditure incurred by the claimant towards physiotherapy even though the doctor, who has given physiotherapy, is examined as PW 6. PW 6, Dr. B. Srinivasa Reddy, has stated in his examination-in-chief that he attended one patient by name Surendra Kumar (claimant herein) at his residence, who sustained injuries in a road accident and the receipt SI. Nos. 193 to 218 in Exh. A11 were issued by him. But he did not speak anything about the physiotherapy given by him to PW 1 and he has also not disclosed to which part of the body he has given physiotherapy. Simply producing bills issued by PW 6, the petitioner is not entitled for reimbursement of said amount when he has failed to establish the physiotherapy given by PW 6 for the injuries sustained by him. Therefore, the petitioner is not entitled for any amount towards physiotherapy. 26. Thus, the claimant is entitled for Rs. 3,20,000/- towards compensation for the injuries sustained by him, Rs. 25,000/- for pain and suffering, Rs. 25,000/- for nutritious food and transportation, Rs. 50,000/- for loss of amenities in life, Rs. 3,81,212/- for medical expenditure. In all, claimant is entitled for Rs. 8,01,212/-. In the result, appeal is partly allowed and the compensation of Rs. 5,36,200/- awarded by the Tribunal is enhanced to Rs. 8,01,212/- with interest at 6 per cent per annum on the enhanced compensation from the date of filing of the petition till the date of realization.