Valsala vs K.G. Khosla Compressor Ltd. And ...
2007 Latest Caselaw 791 Del

JUDGMENT

Pradeep Nandrajog, J.

+CM No. 994/2002 in FAO. No. 495/2002, CM No. 996/2002 in FAO. No. 496/2002 and CM No. 998/2002 in FAO. No. 497/2002

There is a delay in filing the aforenoted appeals. Vide above captioned applications it is prayed that delay in filing the appeals be condoned.

In the interest of justice, delay is condoned.

FAOs. No. 495/2002, 496/2002 and 497/2002

1. The above captioned three appeals arise out of the same accident which took place on 3.8.1989 involving a three wheeler scooter and a delivery van bearing No. DHL-8407.

2. In the said road accident, 4 persons who were traveling in the three wheeler scooter were injured. All 4 filed claim petitions. 1 out of the 4 is satisfied with the award. 3 are aggrieved.

3. After holding driver of the van guilty of rash and negligent driving, learned Tribunal awarded a compensation of Rs. 64,000/- to M. Shashi (Suit No. 1831/2000), Rs. 23,000/- to Smt. Irene (Suit No. 1829/2000), Rs. 10,000/- to Ms. Valsala (Suit No. 1830/2000).

4. In FAO 497/2002, award has been challenged pertaining to compensation granted to M. Shashi.

5. In FAO 496/2002, award has been challenged pertaining to compensation granted to Irene.

6. In FAO 495/2002, award has been challenged pertaining to compensation granted to Valsala.

7. Before dealing with the compensation awarded to the appellants, I note that all the 3 appellants have sought to place on record medical certificates which were not produced before the Tribunal by filing an application under Order XLI Rule 27 CPC (CM No. 995/2002 in FAO. No. 495/2002, CM No. 997/2002 in FAO. No. 496/2002 and CM No. 999/2002 in FAO. No. 497/2002).

8. Date of accident is 3.2.1989. Award is dated 16.2.02. The proceedings in Tribunal have continued for 13 long years. I see no reason why medical certificates certifying the condition of the appellant were not placed before the Tribunal.

9. Even otherwise the said certificates do not inspire confidence.

10. The medical certificate sought to be relied upon by appellant, Irene is dated 20.6.2002 and is issued by Dr. Joji Thomas, MDS, Cosmopolitan Hospital, Trivendrum. The said certificate records that appellant Irene is under continued medical treatment of Dr. Joji Thomas. Irene had suffered an injury affecting front 4 teeth. The accident had occurred in year 1989. It is highly improbable that appellant is undergoing treatment for a period of 13 years for an injury of the kind suffered by her.

11. Likewise, the other two certificates sought to be produced by other two appellants are also not credit worthy and cannot be relied upon.

12. The medical certificate sought to be relied upon by appellant, M. Shashi is dated 1.6.2002. and is issued by Dr. Radhakrishan A., MBBS, Government Hospital, Parrassala, Kerela. M. Shashi had suffered an injury affecting his back. The certificate records that appellant, M. Shashi is under continued medical treatment and is suffering from severe back ache, neck pain and knee joint pain. The nature of injury suffered by the appellant is not mentioned. The treatment which is being administered to the appellant is not mentioned. More so, I fail to understand how the injury of back is causing pain in knee joint. The said certificate is unyielding and undependable.

13. The medical certificate sought to be relied upon by the appellant, Valsala is dated 12.7.2002 and records that appellant Valsala, is under continued medical treatment as she is suffering from headache and blurring of vision. The name of the doctor who has issued the certificate is not clear. Again, neither the nature of the injury sustained by her nor treatment being administered to her is mentioned. The said certificate is also untrustworthy.

14. Dealing with compensation assessed to M. Shashi, I note that he suffered fracture of superior pubic ramus and injuries on the back at the spinal region. No permanent disability was suffered by him.

15. Reverting to the claim petition and the award, it was pleaded by M. Shashi that he was a three wheeler scooter driver and was earning Rs. 8,000/- per month at the time of the accident. It was further pleaded by him that he had spent Rs. 15,000/- on his treatment and that on account of injury suffered by him he was not able to attend to his work for a period of one year.

16. A compensation in sum of Rs. 64,000/- has been awarded by the learned Tribunal.

17. Break up of the compensation is as follows:

a) Treatment Expenses : Rs. 15,000/-

b) Loss of income : Rs. 24,000/-

c) Pain and suffering : Rs. 25,000/-

18. In absence of any clear and cogent evidence, learned Tribunal has taken income of the deceased as Rs. 2,000/- per month and on that basis awarded a sum of Rs. 24,000/- for loss of income of one year (Rs.2,000 x 12 = Rs. 24,000/-).

19. Minimum wages for skilled labourers in the year 1989 was Rs. 1,000/- per month, whereas the Tribunal has taken monthly income of the deceased as Rs. 2,000/- per month. Moreover, it is difficult to believe that for a injury of a kind suffered by appellant, he was incapacitated for a period of one year. Therefore, compensation awarded under the head 'loss of income' is already on a higher side.

20. Learned Counsel for the appellant has drawn support from the judgment of the Madras High Court in the decision reported as Imtiaz Ahamed v. G. Banumathi and Anr. in support of his contention that compensation awarded to the appellant M. Shashi is inadequate. In the said case, a boy aged 19 years sustained serious injuries in an accident which took place on 25.10.1996. Due to the said road accident, he sustained fracture in his left leg below knee resulting in shortening of leg by 2" as also a fracture near left side of hip due to which hip movement was considerably reduced. The urethra in urinary bladder was cut to the extent of 2 cm due to which his entire urology system was damaged. Considering the gravity of injuries sustained by the injured, the Division Bench of Madras High Court awarded a compensation of Rs. 1,00,000/- for pain and suffering and a sum of Rs. 3,00,000/- for loss of future prospects and loss of marital relationship.

21. The aforenoted judgment is not applicable in the instant case for the reason, injured in the aforenoted case had sustained multiple injuries which were very serious in nature.

22. Considering the extent of injury sustained by the appellant and the fact that no permanent disability was suffered by him, compensation of Rs. 25,000/- awarded by the Tribunal under the head 'pain and suffering' is adequate.

23. I see no reason to interfere with the award made by the Tribunal in Suit No. 1831/2000.

24. FAO No. 497/2002 is accordingly dismissed.

25. Dealing with compensation assessed to Irene, I note that she suffered minor injuries on her face and dislocation of front 4 teeth.

26. After considering evidence on record, Tribunal has assessed the following compensation:

1. Treatment expenses : Rs. 3,000/-

2. Special Diet : Rs. 10,000/-

3. Pain and suffering : Rs. 10,000/-

27. No specific ground has been urged by the learned Counsel for the appellant.

28. There is no evidence of any permanent disability suffered by appellant, Irene. Medical reimbursement is on the basis of amount claimed by the appellant.

29. Considering the kind of injury suffered by her, amount of Rs. 10,000/- awarded under the head 'special diet' is excessive.

30. Learned Counsel for the appellant has relied upon the judgment of Madras in the decision reported as P. Murugaiyan v. K. Ramachandran . In the said case, injured had suffered 140% disability (70% ortho, 40% neuro, 30% dental). Considering the extent of disability suffered by the injured, the Division Bench awarded to the injured a compensation in sum of Rs. 7,75,000/-.

31. The aforenoted decision is not applicable in the instant case for the reason, on account of injuries (dislocation of front 4 teeth) sustained by her, she has not suffered a permanent disability.

32. At this juncture, I note a decision of this Court in MAC.APP. No. 186/2007 decided on 23.3.2007. In said case, injured had suffered loss of 4 teeth as also fracture of the bone of the left leg. Learned Tribunal had awarded a compensation of Rs. 25,000/- under the head 'pain and suffering'. In the appeal, the award was upheld.

33. Taking note of the decision in MAC.APP. No. 186/2007 and considering the injury of the appellant, a sum of Rs. 10,000/- awarded by the Tribunal under the head 'pain and suffering' is adequate.

34. It has to be borne in mind that the compensation is not expected to be a windfall for the victim. The award in Suit No. 1829/2000 is just, fair and reasonable.

35. FAO No. 496/2002 is accordingly dismissed.

36. Dealing with the compensation awarded to Ms. Valsala, I note that she sustained an injury in her left eye.

37. After assessing evidence on record, learned Tribunal has awarded following compensation:

1. Treatment expenses : Rs. 5,000/-

2. Pain and suffering : Rs. 5,000/-

38. No specific ground has been urged by the learned Counsel for the appellant.

39. It was pleaded by the appellant Valsala that she has suffered permanent impairment of eye sight in her left eye. Since there was no evidence showing the permanent impairment suffered by her, learned Tribunal refused to believe the same.

40. Medical reimbursement is on the basis of amount claimed by the appellant. Since there was no evidence to show that she was undergoing continued medical treatment, no compensation has been awarded by the learned Tribunal under the head 'future treatment expenses'.

41. Appellant Valsala has not been able to show as to which part of her eye was permanently damaged in the accident.

42. Learned Counsel for the appellant has drawn support from the judgment of the Division Bench of the High Court of Allahabad in the decision reported as United India Insurance Company Ltd. v. Pratap Singh and Ors. in support of his contention that the compensation awarded to the appellant, Valsala is inadequate.

43. In the aforenoted case, insurance company had challenged the award of the Tribunal whereby a compensation of Rs. 2,75,560/- was awarded to the injured. Injured had suffered serious injuries of eyes, forehead and head resulting in disfigurement of his face causing permanent disability of 40%. Further, despite prolonged treatment and a major operation, injured could not recover and became mentally retarded with disability of 100%. Noting the gravity of injuries suffered by the injured, Division Bench held that compensation of Rs. 2,75,560/- is not excessive.

44. In the aforenoted case, injuries sustained by the injured were very serious in nature making him permanently disabled for the rest of his life. While in the instant case, exact injury suffered by the appellant is not clear. She has not been able to prove that she had suffered permanent impairment of eye sight in her left eye.

45. The extent of injury suffered by the appellant, Valsala can be gauged from the fact that she was admitted in AIIMS on the date of accident and was discharged on very next day. There is no evidence of any future hospitalization.

46. In absence of any evidence showing the exact injury suffered by the appellant, the compensation of Rs. 5,000/- awarded by the Tribunal for 'pain and suffering' is reasonable.

47. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza or a source of profit. The award of the Tribunal in Suit No. 1830/2000 is just, fair and reasonable.

48. FAO No. 495/2002 is accordingly dismissed.

49. FAO No. 495/2002, FAO No. 496/2002 and FAO No. 497/2002 are dismissed.

50. No costs.