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2012 DIGILAW 1005 (AP)

V. Naga Raju v. Yesumudi Ramana Rao

2012-10-11

B.CHANDRA KUMAR

body2012
Judgment Aggrieved by the orders dated 30.03.2002 passed in O.P. No.41 of 1999 by the Motor Accidents Claims Tribunal (I Addl. District Judge) at Nalgonda, the claimant filed the present appeal seeking enhancement of compensation. The parties, hereinafter, will be referred to as they are arrayed before the Tribunal for the sake of convenience. The brief facts of the case are as follows. On 16.10.1998 the claimant was driving the lorry bearing No.AP-20T-4389 and was proceeding from Cherlapally to Coimbattore. At about 10.30 PM when the said lorry reached the cross road of Cherlapally, another lorry bearing No.AP-7T-5697 being driven by its driver in a rash and negligent manner at high speed dashed against the lorry of the claimant. As a result of which, the claimant sustained serious injuries and fractures. He was shifted to Osmania General Hospital, Hyderabad. The police registered a case against the driver of the lorry AP-7T-5697. The claimant contending that he became permanently disabled, lost his future earnings and unable to do any work and that he spent huge amount for medical expenses, claimed total compensation of Rs.3,00,000/-under various heads. Respondent No.1 is the owner of the lorry and respondent No.2 is the Insurance Company. They filed counters and denied the material averments made by the claimant. The Tribunal framed the following issues. 1. Whether the petitioner sustained injuries in he motor vehicle accident, and if so, whether the accident occurred due to the rash and negligent driving by the driver of the lorry bearing No.AP-7T-5697? 2. Whether the petitioner is entitled to any compensation, if so, to what amount and by whom it should be paid? 3. To what relief? On behalf of the claimant, the claimant himself was examined as PW.1 and Exs.A1 to A5 were marked. On behalf of the respondents, none were examined except marking the copy of insurance policy as Ex.B1. The Tribunal, on appreciation of the oral and documentary evidence, having held that the accident occurred due to rash and negligent driving of the lorry No.AP-7T-5697 by its driver, awarded compensation of Rs.39,000/-with interest at 9% p.a. from the date of petition till realization. The Tribunal, on appreciation of the oral and documentary evidence, having held that the accident occurred due to rash and negligent driving of the lorry No.AP-7T-5697 by its driver, awarded compensation of Rs.39,000/-with interest at 9% p.a. from the date of petition till realization. Sri T. Viswarupa Chary, learned counsel for the claimant, submitted that the claimant suffered two fractures i.e., fracture in right thigh and in tibia and that the claimant had taken treatment as inpatient for about two months and that he became permanently disabled and that the amount awarded by the Tribunal is meager. He has relied on the judgment of the Apex Court reported in Batturoo Ravi v. V. Shankar Rao ( 2007(3) ALD 449 ), in support of his contention that even in the absence of examination of the Doctor the wound certificate issued by a Government Doctor can be looked into. Sri R.K. Suri, learned Standing counsel for the second respondent-Insurance Company, submitted that the claimant has not filed any disability certificate and there is no medical evidence to substantiate his claim and that the Tribunal has awarded reasonable compensation and there is no need to enhance the compensation. The only point that arises for consideration is whether the case sheet/discharge card etc., filed by the claimant can be looked into and a reasonable compensation can be awarded to him? There is nothing on record to show that there was any objection for marking the documents by the Tribunal. Ex.A1 is the copy of FIR, Ex.A2 is the discharge card issued by the Osmania General Hospital, Hyderabad, Ex.A3 is the copy of case sheet and Ex.A4 are the medical bills. There cannot be any dispute to say that Osmania General Hospital is one of the biggest hospitals run by the Government in Hyderabad. When the records from a Government Hospital such as case sheet and discharge card are filed and when there is no dispute with regard to their genuineness there should not be any difficulty in looking into those documents. It may not be possible to examine the same Doctor who treated a patient or claimant/injured in each and every case. The doctor may not be available or he may have gone to foreign countries or the claimant or the dependents of the deceased, in case of death, may not know the present address of the doctor. It may not be possible to examine the same Doctor who treated a patient or claimant/injured in each and every case. The doctor may not be available or he may have gone to foreign countries or the claimant or the dependents of the deceased, in case of death, may not know the present address of the doctor. So, it appears that it may not be possible to examine the doctor in spite of making best efforts. In such a situation what is to be seen is as to whether the documents are produced from proper custody or maintained by any government hospital. However, a care has to be taken that any such medical record issued by any private doctor or from any private hospital may not be accepted at their face value without examining the concerned doctors, because there is every possibility of fabricating such documents. In view of the above discussion, I am of the view that even in the absence of examination of the concerned doctor the concerned records such as case sheet, discharge summary, operational notes and medical prescriptions etc., issued by the Government doctors prepared during the normal course of discharge of their duties, if produced, can be marked and can be looked into in evidence. Coming to the facts of this case, the claimant was aged about 30 years as on the date of examination in the Court on 08.03.2002. According to him, he sustained fracture of left thigh and he also sustained injury on his right leg. According to him, a scar is visible on his left thigh at a length of 4 to 5 inches. It is not in dispute that he was given first aid in the Government Hospital, Kalahasti and from there he was shifted to Osmania General Hospital, Hyderabad. According to him, he was treated as inpatient for two months, operation was conducted on his left leg and steel rod was inserted and one month thereafter steel rod was removed. According to him, still he is getting pain and unable to drive the vehicle because of the fracture he sustained. It is also his case that he was earning Rs.3,000/-per month and had spent about Rs.20,000/-for medical expenses. Ex.A1 shows that the accident occurred on 16.10.1998. According to him, still he is getting pain and unable to drive the vehicle because of the fracture he sustained. It is also his case that he was earning Rs.3,000/-per month and had spent about Rs.20,000/-for medical expenses. Ex.A1 shows that the accident occurred on 16.10.1998. It also shows that the claimant was admitted in the Government Hospital, Srikalahasti, and after receiving hospital intimation the police went to the Government Hospital, Srikalahasti and recorded the statement of the claimant. In Ex.A1 the claimant has categorically stated that he sustained fractures in both the legs. Ex.A2 is the discharge card. It shows that the claimant was admitted in Osmania General Hospital, Hyderabad, on 26.10.1998, operation was conducted on 18.11.1998 and he was discharged on 01.12.1998. It also shows that the claimant sustained closed fracture shaft femur 1/3rd left and fracture of tibia 1/3rd right and multiple small lacerations on left thigh. The case sheet also shows that operation was conducted, Steinmann pin is passed through tibia horizontally and Steinmann pin is passed through 1 ¼ inch below the post medial malleolus. Abnormal mobility and deformity is also noted. It is most unfortunate that the disability certificate is not obtained by the claimant. In fact after treatment is over, the doctors should take the x-rays and examine whether the fractured bones are properly united or not and whether there is any non-union or malunion of bones and should assess the disability and if necessary the patient should be referred to the Medical Board for assessing the disability. The hospital authorities themselves should take this responsibility because many persons would be poor and illiterate and they may not be known the procedure of obtaining the disability certificate. At least when such claimants approach the advocates for filing claim petitions, the advocates should guide them and see that they are referred to the Medical Board and disability certificate is obtained. Though in this case it appears that the claimant sustained disability, but no disability certificate is filed and the percentage of disability is not assessed. Though the disability certificate is not filed, reasonable compensation has to be awarded towards loss of future earnings. Though in this case it appears that the claimant sustained disability, but no disability certificate is filed and the percentage of disability is not assessed. Though the disability certificate is not filed, reasonable compensation has to be awarded towards loss of future earnings. Having regard to the nature of injuries sustained by the claimant i.e., fractures in femur and tibia and the period of treatment and operation conducted on him and his age i.e., 30 years as on the date of accident, I consider it just and reasonable to award a sum of Rs.50,000/-towards permanent disability and future loss of earnings, Rs.10,000/-for loss of earnings during the period of treatment, Rs.10,000/-towards pain and suffering, Rs.5,000/-towards attendant charges, Rs.3,000/ towards extra nourishment, Rs.2,000/-towards transport charges, Rs.5,000/-towards disfiguration i.e., for the scar on his leg and Rs.5,000/ towards medical expenses. In all the claimant is awarded total compensation of Rs.90,000/-. The enhanced compensation shall carry interest at 6% p.a. Accordingly, the CMA is partly allowed. However, in the circumstances, no costs.