Insurance Company v. Claimant

Judgment

As both the appeals are interconnected, they are taken up together and disposed of by this common judgment.

2. Heard the learned counsel appearing for both sides and also perused the entire material made available on record.

3. C.M.A No. 4481 of 2003 is filed by the Insurance Company and M.A.C.M.A.No. 1119 of 2005 is filed by the claimant and both the appeals filed under Section 173 of the Motor Vehicles Act 1988 are directed against the Judgment and Decree dated 16.12.2002 passed by the Motor Accident Claims Tribunal-cum-IV Additional Chief Judge, City Civil Court, Hyderabad (for short ‘the Tribunal’) in OP No. 329 of 2000 filed by the claimant viz., K. Shravan Kumar, claiming compensation of Rs. 3,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 30.4.1999 at about

3.00 PM when he was travelling in the lorry of the 1st respondent bearing No. AP37-V-1195, as cleaner from Hyderabad to Warangal on the way near Pamulaparthi Cross Road, the driver of the said lorry drove it in a rash and negligent manner and dashed against a roadside stationed lorry bearing No. ABT- 5318. Consequently, the claimant sustained fracture of his left leg and was shifted to Gandhi Hospital, where he took treatment as outpatient for a long time and even after discharge, he took treatment in a Private Hospital by spending huge amounts. Inspite of the same, the injuries have not been healed up and he is still unable to attend to his regular work and he became disabled permanently.

First respondent owner of the lorry bearing No. AP 37- V- 1195, remained ex-parte and the second respondent, the insurer viz., United India Insurance Company, represented by its Divisional Officer filed counter denying the allegations made in the petition.

4. The Tribunal after due enquiry held that the accident occurred only due to rash and negligent driving of the Lorry by it’s driver and therefore, the first and second respondents are jointly and severally liable to pay compensation of Rs. 1,55,000/- arrived at by the Tribunal to the claimant. Aggrieved by the same, and questioning the quantum of compensation, Insurance Company filed C.M.A.No. 4481 of 2003 and seeking enhancement of the compensation, claimant filed M.A.C.M.A.No. 1119 of 2005.

5. The learned counsel appearing for the claimant submits that the Tribunal ought to have awarded the compensation as claimed by the claimant and it ought not to have discarded Ex. A-10 disability certificate issued by the Ortho Doctor which discloses that the appellant suffered 55% disability in the accident. He also submits that the court below while assessing the compensation ought to have appreciated the fact that the appellant is deprived of his employment forever due to the disability sustained by him and could have awarded the compensation as claimed. In support of his contention, he placed reliance on a Division Bench judgment of the Gujarat High Court in UNITED INDIA INSURANCE COMPANY LIMITED VS. UDAYSINH CHANDANSINH THAKOR AND OTHERS [1] , wherein the Gujarat High Court at paragraph 7 of the judgment laid down as under: “7. It has to be kept in mind that the Motor Vehicles Act is a beneficial piece of Legislation and the procedure envisaged under it is a summary one strict Rules of evidence are, therefore, not applicable to proceedings under the If nay document is produced during the Act. course of proceedings, the genuineness and probative value of which is not in doubt and which has not been proved to be false then, the Tribunal can look into the same and come to a just and reasonable conclusion on its basis. In the present appeal, it is not disputed that the Neuro Surgeon had given a certificate of permanent disability in favour of the claimant. Just because the said Doctor had retired and could not be examined, due to want of correct address in order to summon him, the contention that Exh. 28/17 and Exh. 27/18, (disability certificates) cannot be read in evidence because the Doctor has not been examined to prove them on record, cannot be accepted. The appellant has not come up with any evidence to show that the said certificates are not genuine ones. This is also not contended before us. In this view of the matter, since there is ample material on permanent physical disability suffered by the record pointing respondent No. 1-claimant, the view taken by the Tribunal regarding the medical aspect of the case and awarding of compensation thereupon, cannot It is sufficient that there would be be faulted. material on record on which the Tribunal has determined the compensation to be awarded, which should be just and reasonable. In the present case there is material on record to support the findings arrived at by the M.A.C. Tribunal. To take a hyper-technical view and apply strict rules of evidence as per the provisions of the Evidence Act, in claims under the M.V. Act, would amount to defeating the very object and purpose behind the enactment of this beneficial statute, which is intended to provide immediate relief in the form of just and reasonable compensation to unfortunate victims of motor accidents or their legal heirs, as the case may be.”

6. From the above decision, it is therefore, obvious that even if the doctor, who issued the disability certificate, was not examined, the Tribunal on being satisfied about the genuineness of the said certificate can consider the disability mentioned therein by the doctor who issued it. Therefore, it would not be proper for the Tribunal to decline to grant any compensation for disability on the mere ground that the doctor, who issued the disability certificate, was not examined by the claimant.

7. On the other hand, the learned counsel appearing for the appellant-Insurance Company in C.M.A.No. 4481 of 2003 submits that the compensation granted is on higher side and the same is not just and reasonable. He also submits the Tribunal committed an error simply believing the disability certificate, in coming to the conclusion that the claimant sustained 55% permanent disability. He also contends that when the claimant did not choose to examine the doctor, no credence should have been given to the disability certificate for assessing the loss of earnings of the claimant. He also submits that the Tribunal failed to see that the percentage of disability stated to have been caused to the claimant, had not been established by examining the competent doctor or the doctor who treated the claimant in Gandhi Hospital and therefore, the compensation awarded to the claimant is on erroneous and baseless findings. He argues that in the absence of evidence of the doctor who issued the disability certificate and without examining genuineness and authenticity of disability certificate, granting of compensation, is legally impermissible.

8. In support of his contention he relied on the judgment of the Supreme Court reported in RAJESH KUMAR ALIAS RAJU VS. YUDHVIR SINGH AND ANOTHER [2] , wherein the Supreme Court at paragraph 11, observed as under: “11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen’s Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on In absence of any record by the parties. contention having been raised in regard to the applicability of the Workmen’s Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time.”

9. He also relied on the judgment of the Supreme Court reported in ORIENTIAL INSURANCE COMPANY LIMITED VS. MOHD. NASIR AND ANOTHER [3] , wherein the Supreme Court at paragraphs 30, 35 and 37 observed as udder: “30. The distinction between ‘permanent total disablement’ and ‘permanent partial disablement’ is that whereas in the former it is 100% disablement, in the latter it is only the the extent specified disablement Schedule. Similar terms have been used in clauses (a) and (b) of Para 5 of the Second Schedule of the Motor Vehicles Act. It, by reference, incorporates the provisions of the First Schedule to the 1923 Act. Indisputably, therefore, the Note appended thereto would not only be applicable to the cases falling under the 1923 Act but apply to the cases which fall under the 1988 Act as well.

35. The learned Tribunal had held that there has been a 15% disability but then there was nothing to show that Mohd. Nasir suffered 100% loss of earning capacity. The Commissioner has applied 197-06 as the relevant factor, his age being 35. He, therefore, proceeded on the basis that it was a case of permanent total disablement. However, his income was taken to be at Rs. 1920 per month. There is nothing on record to show that the qualified medical practitioner opined that there was a permanent and complete loss of use of his right leg or that he became totally unfit to work as a driver. In that situation, the High Court, in our opinion, was not correct in determining the loss of income at 100%.

37. We therefore, are of the opinion that the extent of disability should have been determined at 15% and not 100%. The appeal is allowed to the aforementioned extent.”

10. He further relied on the Judgment of the Supreme Court reported in RAJ KUMAR VS. AJAY KUMAR AND ANOTHER [4] , wherein the Supreme Court at paragraphs 10, 11,12 22, 23, and 24 observed as under: “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of from a permanent earning capacity, arising disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the injured; and after earning capacity of assessing the loss of earning capacity in terms of it has to be a percentage of the income, quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and the Tribunal may assessment, percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the compensation. (See for example, the decisions of determination percentage this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd.4 and Yadava Kumar v. National Insurance Co. Ltd.5)

12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. the Tribunal concludes If is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

22. We may in this context refer to the difficulties faced by the claimants in securing the presence of busy surgeons or treating doctors who treated them, for giving evidence. Most of them are to appear before reluctant obvious reasons either because their entire day is likely to be wasted in attending the Tribunal to the Tribunals give evidence in a single case or because they are not shown any priority in recording evidence or because the claim petition is filed at a place far away from the place where the treatment was given. Many a time, the claimants are reluctant to take coercive steps for summoning the doctors who treated them, out of respect and gratitude towards them or for fear that if forced to come against their wishes, they may give evidence which may not be very favourable. This forces the “professional” injured claimants to approach certificate givers whose evidence most of the time is found to be not satisfactory.

23. The Tribunals should realise that a busy surgeon may be able to save ten lives or perform twenty surgeries in the time he spends to attend the Tribunal to give evidence in one accident case. Many busy surgeons refuse to treat medico- legal cases out of apprehension that their practice and their current patients will suffer, if they have to spend their days in Tribunals giving evidence about past patients. The solution does not lie in doctors to attend the Tribunal to coercing the give evidence. The solution lies in recognising the valuable time of doctors and accommodating them. Firstly, efforts should be made to record the evidence of the treating doctors on commission, after ascertaining timings. Secondly, if the doctors attend the Tribunal for their convenient giving evidence, their evidence may be recorded without delay, ensuring that they are not required to wait. Thirdly, the doctors may be given specific time for attending the Tribunal for giving evidence instead of requiring them to come at 10.30 a.m. or 11.00 a.m. and wait in the court hall. Fourthly, in cases where the certificates are not contested by the respondents, they may be marked by consent, thereby dispensing with the oral evidence. These small measures as also any other suitable steps taken to ensure the availability of expert evidence, will ensure assessment of just compensation and will go a courts/Tribunals show concern for litigants and in demonstrating long way witnesses. Assessment of compensation

24. In this case, the Tribunal acted on the disability certificate, but the High Court had reservations about its acceptability as it found that the injured had been treated in the Government Hospital in Delhi whereas the disability certificate was issued by a District Hospital in the State of Uttar Pradesh. The reason given by the High Court for rejection may not be sound for two reasons. Firstly, though the accident occurred in Delhi and the injured claimant was treated in a Delhi hospital after the accident, as he hailed from Chirori Mandi in the neighbouring district of Ghaziabad in Uttar Pradesh, situated on the outskirts of Delhi, he might have continued the resided. treatment Secondly, the certificate has been issued by the the place where he Chief Medical Officer, Ghaziabad, on assessment made by the Medical Board which also consisted of an orthopaedic surgeon. We are therefore of the view that the High Court ought not to have rejected the said disability certificate.”

11. In both the appeals the question that arises for consideration is whether the compensation granted by the Tribunal is just and reasonable?

12. According to the claimant on the date of accident when he was travelling in the lorry of the 1st respondent in his capacity as Cleaner on the way near Pamulaparthi crossroads, the lorry driver drove the same at a high speed and in a rash and negligent manner dashed against a road side stationed lorry resulting in injuries to him on his both legs and other parts of the body. Ex. A2 medical certificate issued by Gandhi Hospital shows that he sustained fracture of shaft femur both right and left middle 1/3rd and by an operation k-nailing was done to both femurs. He was treated as inpatient in that hospital from 30.4.1999 to

2.6.1999 and even subsequently he took treatment as outpatient for another 6 months. The fractures have not yet united and still he is unable to bend his left leg and there is limp in his walk. Though the claimant marked the disability certificate issued by Dr. Ramakrishna, Professor of Orthopaedics in Osmania General Hospital, as Ex. A10, he failed to examine him as a witness to prove its contents. The doctor who issued the disability certificate opined that the injuries resulted in permanent disability of 55%. It shows that the left femur has united with half inch shortening and there is a restricted movement of left knee. The fact remains that the claimant sustained fractures of both bones of both legs and took treatment for more than 2 months as inpatient in Gandhi Hospital. He underwent operation for fixation of K-nails in both legs. The medical record of the claimant shows that even after discharge he took treatment as outpatient for more than six months. The injuries must have caused severe pain and suffering in addition to discomfort and shortening of leg, which resulted in limping. As a cleaner, the claimant has to put in hard physical work but now he may not be able to do it with previous vigour. Ex. A-7, photographs of the claimant also show that he sustained permanent disability. But the learned Tribunal without considering the disability certificate Ex. A-10 issued by Dr. Ramakrishna, Professor of Orthopaedics in Osmania General Hospital, awarded compensation of Rs. 1,00,000/- towards fractures. The learned Judge ought to have made his own assessment as to the disability sustained by the claimant and ought to have granted compensation for future loss of earnings by applying multiplier method. The Professor of Orthopaedics in Osmania General Hospital Dr. Ramakrishna opined that the injuries resulted in permanent disability of 55%, which is physical in nature. In so far as functional disability is concerned, by considering the condition of the claimant and the injuries he sustained, I deem it appropriate to reduce the disability assessed by the doctor from 55% to 25% for computing compensation by applying multiplier method.

13. The monthly income of Rs. 2,000/- stated by the claimant, being reasonable can be accepted and if calculated his annual income comes to Rs. 24,000/- (Rs. 2,000 x 12 =24,000) and out of that 25% functional disability if deducted, the net amount come to Rs. 6,000/- and the relevant multiplier for the age about 28 years is ‘17’ as per the judgment of the Supreme Court reported in SMT. SARALA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER [5] and if the said multiplier is applied the total amount comes to Rs. 1,02,000/- ( Rs. 6,000 x 17 = 1,02,000). The amount of compensation granted by the Tribunal under the other heads viz., compensation towards pain and suffering Rs. 25,000/-, towards medical expenses Rs. 8,167.45, towards loss of income during hospitalization period Rs. 12,000/- and towards transportation, attendant charges and extra-nourishment Rs. 10,000/-, being reasonable needs no interference. Thus the total amount of compensation comes to Rs. 1,57,167.45 (Rs. 1,02,000/-+ Rs. 25,000 + Rs. 8,167.45 + Rs. 12,000/- + Rs. 10,000/-)

14. The Supreme Court in HARDEO KAUR VS. RAJASTHAN STATE TRANSPORT CORPORATION [6] the determination of compensation in respect of injury cases must be liberal. The relevant portion of the same reads as under: “the determination of compensation in respect of injury cases must be liberal and the amount of compensation so awarded should not be niggardly and at the same not a wind fall as a profit making venture through the Tribunals or Courts. When the the Courts and compensation Tribunals even the tort feasor should feel that he is is awarded by atoned for the sin committed by him in committing the accident robbing the precious life of a human being and injuring the innocent person for no fault of his and the guidelines from such precedents is only to emphasise that if there are two precedents dealing the same question of assessing compensation, the one which has adopted a liberal approach should be preferred than the one which has adopted the conservative approach.”

15. As the claimant is granted compensation towards future earnings as a result of permanent disability, he need not be granted compensation separately for the grievous injuries/fractures sustained by him.

16. The rate of interest granted by the Tribunal at the rate of 9% per annum being on higher side, the same is reduced to 7.5% per annum from the date of petition till the date of realization.

17. In the result C.M.A.No. 4481 of 2003 filed by the Insurance Company is dismissed and M.A.C.M.A.No. 1119 of 2005 filed by the claimant is allowed in part enhancing the compensation from Rs. 1,55,167.45 Rs. 1,57,167.45 with interest at 7.5% per annum from the date of petition till the date of realization. There shall be no order as to costs. R. KANTHA RAO, J ________________________ Date: 25.04.2012 KA [1] [2] [3] [4] [5] [6] AIR 2006 GUJARAT 117 (2008) 7 SCC 305 (2009) 6 SCC 280 (2011) 1 SCC 343 2009 (6) SCALE 129 AIR 1992 SC 1261