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2014 DIGILAW 710 (AP)

Gannoji Balakistaiah v. T. Karunakar Reddy

2014-06-12

B.CHANDRA KUMAR

body2014
JUDGMENT : Aggrieved by the order, dated 08.10.2004, passed in OP No.238 of 2002 by the XII Additional Chief Judge, City Civil Court (FTC), at Hyderabad, whereby and whereunder the Tribunal awarded compensation of Rs.45,500/- against the claim of Rs.1,50,000/-, the claimant filed this 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 23.12.2001 at about 10.00 AM the claimant was traveling in a Jeep bearing No.AP-12-B-427. When the said jeep was proceeding in front of Mega Real Estate on DT Road towards Nagarkurnool, the offending Jeep bearing No.AP-22-A-3888 came from opposite direction. It is alleged that the driver of the said Jeep drove the same in a rash and negligent manner and dashed against the Jeep No.AP-12-B-427 as a result of which the claimant sustained injuries. He was shifted to Government Hospital, Nagarkurnool, from there he was shifted to District Headquarters Hospital, Mahaboobnagar and from there to Osmania General Hospital, Hyderabad. It is the case of the claimant that he spent Rs.40,000/- towards medical expenses. His further case is that he was working as Carpenter and earning Rs.3,000/- per month. Due to the injuries he is permanently disabled and unable to do work. The first respondent is the owner and the second respondent is the Insurer of Jeep No. AP-22-A-3888. The first respondent remained ex parte. The second respondent-Insurance Company contested the matter on various grounds. The Tribunal framed the following issues. 1. Whether the accident in question took place on 23.12.2001 at about 10.00 AM due to rash and negligent driving of Jeep No. AP 22A 3888 by its driver? 2. Whether the petitioner is entitled to the compensation, if so, to what amount and from whom? 3. To what relief. On behalf of the claimant, the claimant himself was examined as PW.1 and Dr. G. Subash Rao was examined as PW.2 and Exs.A1 to A7 were marked. On behalf of the respondent-Insurance Company none were examined, however the copy of insurance policy was marked as Ex.B1. On issue No.1 the Tribunal found that the accident occurred due to rash and negligent driving of the driver of Jeep No. AP 22A 3888 and the said finding is not in dispute in this appeal. On behalf of the respondent-Insurance Company none were examined, however the copy of insurance policy was marked as Ex.B1. On issue No.1 the Tribunal found that the accident occurred due to rash and negligent driving of the driver of Jeep No. AP 22A 3888 and the said finding is not in dispute in this appeal. As far as issue No.2 is concerned, the Tribunal did not accept the evidence of PW.2 on the ground that the said Doctor has not treated the claimant. The Tribunal, however, awarded Rs.6,000/- towards loss of earnings during the period of treatment, Rs.3,000/- towards transportation charges, Rs.1,000/- towards extra nourishment, Rs.10,000/- towards medical expenses, Rs.500/- towards loss of clothes and Rs.25,000/- towards permanent disability. Thus, the Tribunal awarded total compensation of Rs.45,500/-. Learned counsel for the claimant submits that in case where an injured person sustained disability the Tribunal ought to have adopted the multiplier method and non-adopting of multiplier method is an irregularity. It is also his submission that the claimant was working as Carpenter and he is unable to do the work of carpentary. It is further submitted that where a labourer or Carpenter who has to earn only by doing hard work is unable to do the work there will be total loss of earnings. It is further submitted that the Tribunal erred in awarding only Rs.25,000/- towards permanent disability to the claimant. It is submitted that no amount has been awarded towards loss of future earnings and that the other amounts awarded are also meager. Learned counsel for the respondent-Insurance Company submits that Dr. G. Subhash Rao, who was examined as PW.2 in this case, has appeared in several cases and he is a stock witness of claimants and therefore the Tribunal has not accepted the evidence of PW.2. It is also his submission that the said Doctor never treated the claimant and simply issued disability certificate and, therefore, the Tribunal rightly did not accept the disability certificate issued by PW.2. It is also his submission that the Tribunal has awarded reasonable compensation and there is no need to enhance the same. The claimant was aged about 40 years as on the date of accident. He was working as Carpenter. According to the claimant he was earning Rs.3,000/- per month prior to the date of accident. It is also his submission that the Tribunal has awarded reasonable compensation and there is no need to enhance the same. The claimant was aged about 40 years as on the date of accident. He was working as Carpenter. According to the claimant he was earning Rs.3,000/- per month prior to the date of accident. The Tribunal, having regard to the fact that the labourers also getting Rs.100/- per day, has rightly taken the income of the claimant at Rs.3,000/- per month and there is no need to take a different view with regard to income of the claimant. As far as disability is concerned, Ex.A1 is the report basing upon which the police have registered the case. The Tribunal has observed that in Ex.A1 the claimant had categorically stated that his leg was broken in the accident. Ex.A3 is the MLC report which was prepared at the time of admission of the claimant in the Hospital. Ex.A3 shows that the medical officer who examined the claimant soon after the accident found that the claimant sustained grievous injury on the right lower limb. Ex.A7 x-ray was taken on the same day. X-ray shows that there is mal union of broken leg. The Tribunal has to examine the entire evidence. The claimant has categorically deposed that after the accident he is unable to do Carpentry work. It is also his version that he became permanently disabled. When the claimant has categorically deposed that he is unable to do carpentry work as done by him previously and when the same is corroborated by the contents of Ex.A1, A3 and A7, it appears that the Tribunal is not justified in disbelieving the version of the claimant. Even if the evidence of PW.2 is looked with suspicious eye, nothing prevented the Tribunal to examine the x-ray. The X-ray films and other medical evidence and case sheet etc., have to be examined carefully. Where in a case of non-union or mal union of the fractured bones and particularly when both the bones of leg are fractured resulting in mal union, normally such injured person would not be in a position to do hard work in future. Before parting with this case, it has to be observed that it is the duty of the Tribunals to award just and reasonable compensation. While dealing with the cases of injured persons the Tribunal should examine the entire material. Before parting with this case, it has to be observed that it is the duty of the Tribunals to award just and reasonable compensation. While dealing with the cases of injured persons the Tribunal should examine the entire material. As and when the Tribunal feels that there is no proper assessment of disability of any injured person the Tribunal must direct the injured to be examined by any competent medical board. The Tribunal also should summon the case sheets from the hospitals from which the injured has taken treatment. The Tribunal can suo moto summon the doctors who have treated or operated the injured person. When a report filed by the police under sub-section (6) of Section 158 of the MV Act can be treated as an application for compensation even in the absence of any claim petition, it becomes the duty of the Tribunal to award just and reasonable compensation. In all cases where it appears that legal aid has to be given to the injured persons necessary legal aid and proper legal advise should be given to the victims. Of course, it cannot be denied that in some of the cases doctors in collusion with the claimants are giving fake disability certificates. Then the burden lies on the Insurance Companies. Whenever such certificates are produced by any claimant the Insurance Companies should object for marking of such documents and should take steps and to see that the claimants are again subjected to medical examination by competent doctors and see that proper and genuine disability certificate is obtained. Ultimately the truth has to be ascertained and basing on truth only awards have to be passed. Where there is illiteracy, ignorance, poverty, poor persons particularly labourers and artisans may not be in a position to get treatment from corporate hospitals and it is their common experience that even in Government Hospitals no proper care is being taken. In such circumstances it becomes the obligation of the State to see that proper treatment is provided to all the injured persons and the medical record is preserved and produced before the Tribunals. Even if we do not take into consideration the evidence of PW.2, there is sufficient evidence on record to show that the claimant sustained permanent disability and his loss of earnings would be estimated at least 50%. Even if we do not take into consideration the evidence of PW.2, there is sufficient evidence on record to show that the claimant sustained permanent disability and his loss of earnings would be estimated at least 50%. Therefore, loss of earnings per month would come to Rs.1500/- and annual loss of earnings would come to Rs.18000/- and if the same is multiplied with 15, the total loss of earnings would come to Rs.2,70,000/- Admittedly, the claimant has taken treatment in Government Hospital, Nagarkurnool, District Headquarters Hospital, Mahabubnagar and Osmania General Hospital, Hyderabad. In the above circumstances, I consider it just and reasonable to award Rs.5,000/- towards transport charges, Rs.5,000/- towards extra nourishment and Rs.5,000/- towards attendant charges. The Tribunal already awarded Rs.10,000/- towards medical expenses. Since the claimant has taken treatment from the Government Hospital, there is no need to increase the amount awarded towards medical expenses. The Tribunal also awarded Rs.500/- towards loss of clothes and Rs.6,000/- towards loss of earnings for the period of treatment. In the circumstances, there is no need to disturb the same also. As seen from the award no amount has been awarded towards pain and suffering. In the circumstances, Rs.10,000/- is awarded towards pain and suffering. I also consider it just and reasonable to award Rs.5,000/- towards loss of amenities of life, Rs.5,000/- towards loss of expectation of life and Rs.15,500/- towards disability, inconvenience and discomfort. Thus, in all, an amount of Rs.3,37,000/- is awarded towards compensation. It is settled law that irrespective of the claim made by the claimant, just and reasonable compensation can be awarded. However, the claimant shall pay deficit court fee. Accordingly, the MACMA is allowed awarding total compensation of Rs.3,37,000/-. The rate of interest shall be at 7.5% p.a., from the date of petition till realization. The claimant is directed to pay deficit court fee before drafting the decree. However, in the circumstances, no costs. As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.