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2012 DIGILAW 293 (AP)

Branch Manager v. C. Manik Prabhu

2012-03-16

R.KANTHA RAO

body2012
Common Judgment: 1. CMA.No.4432 of 2003 is filed by the United India Insurance Company Limited, which was respondent No.2 before the Claims Tribunal. Whereas CMA.SR.No.73994 of 2003 is filed by the appellant-claimant (injured) against the award and decree dated 31-07-2003 passed by the Motor Accident Claims Tribunal (District Judge), Nizamabad, in OP.No.86 of 1995. 2. CMA.No.4432 of 2003 is filed by the United India Insurance Company Limited challenging the award passed by the Claims Tribunal on the grounds, namely that failure of kidney and its subsequent transplantation of the claimant is not the result of the injuries sustained by the claimant in the accident, the claimant received only simple injuries and the Claims Tribunal ignoring the evidence available on record erroneously granted compensation of Rs.4,00,000=00 to the claimant and thus it seeks to set aside the finding. 3. Whereas the claimant preferred CMA.SR.No.73994 of 2003 assailing the award and decree passed by the Claims Tribunal on the ground that in the claim-petition, the injured claimed compensation of Rs.6,90,000=00, the learned Claims Tribunal arrived at a finding that the claimant is entitled for compensation of Rs.5,62,942=00 but restricted the award to the claim made by the claimant for an amount of Rs.4,00,000=00 which according to him is not in accordance with law. The appellant-injured seeks enhancement of the compensation from Rs.4,00,000=00 to Rs.11,90,000=00 in the appeal filed by him. 4. Heard Sri K.Kishor Kumar Reddy, the learned standing counsel appearing for the appellant-Insurance Company in CMA.No.4432 of 2003 and Sri A. Rajasekhar Reddy, the learned counsel for the appellant-injured in CMA.SR.No.73994 of 2003. 5. The claimant, an Advocate practicing at Armoor while travelling in the auto bearing No.25/T-2046 from New Bus Stand towards MRO Office in Armoor town received injuries in the accident along with his wife and daughter when the said auto turned turtle near Ambedkar statue on account of the rash and negligent driving of the driver of the said auto. The learned Claims Tribunal recorded a finding that the accident was due to rash and negligent driving of the auto by its driver and accordingly held that the second respondent, owner of the auto and the United India Insurance Company Limited the appellant in CMA.No.4432 of 2003 with which it was insured were jointly and severally liable to pay the compensation. The said finding having not been appealed by the United India Insurance Company and attained finality. 6. The said finding having not been appealed by the United India Insurance Company and attained finality. 6. The crucial question arises for determination firstly basing on the contentions urged by the learned counsel for the United India Insurance Company as well as the claimant is whether the ailment suffered by the claimant relating to kidney and the transplantation of the right kidney are the result of the injuries sustained by him in the accident occurred on 12-8-1994. Secondly, whether the compensation granted by the learned Claims Tribunal is not just and reasonable, requiring interference by this court in these two appeals. 7. In the claim-petition, the claimant asserted that in the accident on 12-8-1994 he sustained five abrasions on his back and waist region was pressed. As a result of which, the kidneys were affected and he was initially treated in the Government Hospital, Armoor and that on 13-8-1994 he was referred to Government Hospital, Nizamabad and thereafter he took treatment under Dr. Sri Ramanachary, Dr.K. Muralidhar Rao and his version is that because of the injuries sustained in the accident his kidney’s are affected and ultimately his right kidney was transplanted in Mahavir Hospital, Hyderabad and he had spent more than Rs.4,00,000=00 for the treatment, surgery and medicines. 8. The claimant originally filed claim-petition seeking compensation of Rs.1,00,000=00. Subsequently he filed amendment petition seeking enhancement of compensation to Rs.4,00,000=00 and the said petition was allowed by the Claims Tribunal passing in I.A.No.627 of 1999 dated 11-4-2000. The claimant received injuries in the accident on 12-8-1994. Thus, after a lapse of period of five years, he filed the amendment application seeking enhancement of compensation, which was allowed by the learned Claims Tribunal. 9. The contention of the Insurance Company is that the claimant had been suffering from diabetic nephropathy since long prior to his receiving injuries in the accident, he received only simple injuries in the accident, they do not have any affect on the kidney and renal transplantation, which was done in fact for diabetic nephropathy, and therefore, the enhanced claim made by the claimant is only on false grounds and the same shall be liable to be rejected. 10. 10. On the other hand, it is the contention of the appellant-claimant that though he received simple injuries, he used antibiotics, and pain-killers prescribed by the doctor during the course of treatment and because of the said medicines his kidney was affected and ultimately right kidney was to be transplanted. Ex.A-1 certified copy of the wound certificate issued by the Govt. Civil Hospital, Armoor discloses that the claimant was referred to the said hospital after the accident and the following injuries were found on the person of the injured-claimant. i) Abrassion over the dorsum of left hand 3x3x1 cms. ii) Abrassion over the left palm 2x2x1 cm. iii) Abrasion over the left knee 8x5x1 cms. iv) Abrasion over the right knee 6x4x1 cms. v) Abrasion over the anterior aspect of right leg 2x1x1 cms. 11. Ext.A-2 out-patient ticket reveals the above mentioned injuries received by the claimant and that apart it indicates that the following medicines were prescribed for the claimant by the doctors: i) T.T. injection ii) Septran tablet iii) Brufen tablet 12. From Exs.A-1 and A-2 it is, therefore, obvious that the appellant-injured received only five abrasions, which injuries are simple in nature and he was prescribed mild painkiller and antibiotic. 13. PW-2 Dr.M. Somasekhar examined the injured-claimant, however, deposed before the Claims Tribunal that continuous use of pain-killer drugs definitely would cause damage to the kidneys or they may aggravate the underlying kidney disease. The evidence of PW-2 is to the effect that prolonged use of painkiller drugs would cause kidney damage or may aggravate the existing kidney disease. 14. On the other hand, the Insurance Company examined one Dr. T.V.S. Murthy, Consultant Physician as RW-1. The Insurance Company referred the medical record of the claimant to RW-1 and sought for his opinion. RW-1 gave his opinion and he also deposed as a witness on behalf of the Insurance Company before the Claims Tribunal. He gave evidence to the effect that Ex.A-1 injury certificate discloses that the injuries sustained by the claimant are only abrasions, which are simple injuries. According to RW-1 such simple injuries will not have any affect on the kidneys of the claimant and they will not lead to renal transplantation. Ex.B-1 discharge was referred to him by the Insurance Company. He gave evidence to the effect that Ex.A-1 injury certificate discloses that the injuries sustained by the claimant are only abrasions, which are simple injuries. According to RW-1 such simple injuries will not have any affect on the kidneys of the claimant and they will not lead to renal transplantation. Ex.B-1 discharge was referred to him by the Insurance Company. It is specifically mentioned in Ex.B-1 discharge summary that the claimant is suffering from diabetic meningitis since seven years and it was diagnosed that he had been suffering from diabetic nephropathy. Ex.B-2 is the certificate issued by Dr. TVS. Murthy in the form of opinion to the Insurance Company stating therein that after going through the case file of the claimant, he found that the claimant had been suffering from diabetes for the last eight years and also diabetic nephropathy (involvement of kidneys due to diabetes). He further noted in Ex.B-2 that the injuries noted at the time of accident have no affect on the kidney and the renal transplantation was done for diabetic nephropathy and not for damage of kidney caused by injuries in the accident. 15. Here it is to be noted that the discharge summary was issued by Dr.M. Somasekhar who was examined by the claimant as his witness. Ex.B-1 discharge summary clearly indicate that the claimant was known diabetic since seven years. Sri A. Rajasekhar Reddy, the learned counsel would submit that the proceedings before the Claims Tribunal are summary in nature, the claims Tribunal has to examine the circumstances which ultimately resulted in kidney disease leading to renal transplantation of the claimant, this has to be considered by the Court keeping in view the summary procedure prescribed by the Motor Vehicles Act for enquiry in accident claims. He would emphasize that unlike in a criminal case strict proof of each and every aspect shall not be insisted in cases relating to the motor vehicle accident claims. In support of his contention, he relied on a judgment in R.D. HATTANGADI V/s. P[EST CONTROL (INDIA) PVT. LTD., AND ORS,((1995) 1 SUPREME COURT CASES-551), wherein the Hon’ble Supreme Court while dealing with the assessment of compensation relating to disability held that all the different circumstances should be taken into account by the Courts and that some guess work is permissible. LTD., AND ORS,((1995) 1 SUPREME COURT CASES-551), wherein the Hon’ble Supreme Court while dealing with the assessment of compensation relating to disability held that all the different circumstances should be taken into account by the Courts and that some guess work is permissible. The learned counsel appearing for the claimant would further submit that some delay of bringing the crucial fact to the notice of the Tribunal/Court shall not deprive the claimant of his right to claim reasonable and legitimate compensation. According to him, in the instant case, there may be some delay by the claimant in filing application seeking amendment and hence, the place of enhancement of compensation bringing to the notice of the Tribunal, the injuries sustained by him ultimately resulting in kidney disease and renal transplantation need not be viewed with suspicion and by virtue of the said delay, the claimant shall not be deprived of his legitimate compensation. In support of his contention, he relied on a judgment of the Hon’ble Supreme Court in RAVI V/s. BADRINARAYAN AND ORS ((2011) 4 SUPREME COURT CASES-693), wherein it is held that the delay in lodging FIR cannot be a ground to doubt claimant’s case in genuine cases. The Apex Court expressed the view that in Indian conditions, it is not expected that a person would to rush to the police station soon after accident, treatment of victim is given priority over lodging FIR. Kith and kin of victim are not expected to act mechanically with promptitude in lodging FIR. For the similar proposition, the learned counsel on a judgment in KUSUM LATA AND ORS. V/s. SATBIR AND ORS ((2011) 3 SUPREME COURT CASES-646). In the said case, the Hon’ble Supreme Court held that not noting down the number of the offending vehicle and instead taking victim for medical aid is normal human conduct, the Tribunal and the High Court went wrong in denying the compensation to the claimant on the ground that the involvement of the offending vehicle was not established because number of the vehicle, the name of the driver was not mentioned in the FIR. 16. The situation in the present case is altogether different. The question to be determined by this court in these appeals is not as to whether the claimant received injuries in the accident and the accident was due to rash and negligent driving of the vehicle. 16. The situation in the present case is altogether different. The question to be determined by this court in these appeals is not as to whether the claimant received injuries in the accident and the accident was due to rash and negligent driving of the vehicle. The Claims Tribunal already recorded a finding that the accident was due to rash and negligent driving of the auto driver and the claimant received injuries in the said accident. There is no dispute with regard to the said finding. The question requires determination in the present case is something different. The question to be addressed in the present case is whether the claimant got kidney disease and was subjected to transplantation of right kidney on account of the injuries sustained by him in the accident or the said ailment was due to the medicines used by his for the treatment of the injuries sustained by him in the accident. The injuries sustained by him in the accident are simple in nature and they were abrasions five in number, which fact in born out from the injury certificate. Further Ex.A-2 clearly reveals that mild painkillers and antibiotics were given to the claimant. The abrasions might have been treated for a few days after the accident. The claimant initially approached the Claims Tribunal for compensation to the injuries sustained by him in the accident for pain and suffering and medical expenses after the accident took place on 12-8-1994. In respect of the said accident, the claimant preferred a claim petition under section 166 of the Motor Vehicles Act, claiming compensation of Rs.1,00,000=00. He filed the amendment petition in the year 1999 i.e., after a lapse of five years. In the said amendment petition i.e., I.A.No.627 of 1999 for the first time he took the plea before the Claims Tribunal that because of the injuries sustained by him in the accident he suffered kidney problem and ultimately his right kidney was to be transplanted. The medical evidence, which was born out from Ex.B-1 discharge summary of the claimant clearly reveals that he had been suffering from diabetes since eight years prior to the issuance of the date of discharge summary. The medical evidence, which was born out from Ex.B-1 discharge summary of the claimant clearly reveals that he had been suffering from diabetes since eight years prior to the issuance of the date of discharge summary. The discharge summary was issued by no other than doctor PW-2, who gave evidence that he noted in the discharge summary that the claimant has been suffering from diabetes since seven years prior to the issue of discharge summary. RW-1 clearly stated in his evidence before the Claims Tribunal that the other injuries suffered by the claimant or the medicines used by him will not result in diabetic nephropathy and that the claimant was diagnosed for it prior to the date of his giving opinion and therefore, he ruled out the possible nexus between the injures suffered by the claimant and the medicines used by him and the diabetic nephropathy, which he had been suffering. The learned Claims Tribunal in my opinion ignored the entire medical evidence on record and the facts and circumstances of the case and recorded a finding that the use of antibiotics and painkiller drugs which were prescribed to the appellant soon after the accident for the treatment of the injuries sustained by him resulted in diabetic nephropathy. The said finding is contrary to the medical evidence forthcoming in this case and also in utter ignorance of the circumstances, under which the amendment came to be filed before the Claims Tribunal five years after receiving the injuries by the claimant. The learned Claims Tribunal mis-directed itself in appreciating the true facts and evaluating the evidence in proper perspective. The conclusions reached by the learned Claims Tribunal are totally perverse and contrary to the evidence on record. The facts and circumstances of the present case and the evidence of record clearly indicate that there is no nexus between the injuries sustained by the claimant, medicines used by him and the diabetic nephropathy suffered and the kidney transplantation underwent by him. The circumstances of the case, would clearly reveal that the claimant taking advantage of his ailment, filed an amendment petition making huge claim of compensation and the learned Claims Tribunal without examining the true facts awarded compensation holding that the appellant-claimant is entitled for compensation of Rs.5,63,922=00 and restricted the award to Rs.4,00,000=00 which was made by the claimant in the claim-petition. In this case, the claimant is only entitled for compensation for the simple injuries, pain and suffering and some reasonable amount towards medical expenses. The learned Claims Tribunal lost sight of the fact of exaggerated claim made after a lapse of five years by amending the claim-petition by the claimant seeking enhancement of compensation and erroneously awarded huge compensation of Rs.4,00,000=00 to him. The claimant in my view is entitled for an amount of Rs.15,000=00 for the simple injuries sustained by him (i.e. Rs.3000 x 5), an amount of Rs.10,000=00 towards pain and suffering and a further sum of Rs.10,000=00 towards medical expenses. In all the claimant is entitled for compensation of Rs.35,000=00. 17. For the forgoing reasons, the award passed by the learned Claims Tribunal granting compensation of Rs.4,00,000=00 under various heads is set aside, instead in this appeal the appellant is granted compensation of Rs.35,000=00. The amount shall carry interest @ 7.5% p.a. from the date of petition till the date of realization. 18. For the reasons stated hereinabove, the appeal filed by the Insurance Company succeeds and the same is allowed. No costs. The appeal filed by the claimant fails and the same is dismissed. No costs.