Bandlameedi Rajaiah, ... vs Ch.Chandraiah, Hanamkonda And ...
2022 Latest Caselaw 5908 Tel

            THE HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
                        MA.CMA.NO.1732 OF 2014
                                  JUDGMENT

Vide award and decree dated 17.09.2007 passed by the court of

the Chairman, Motor Accident Claims Tribunal - cum - II Additional

District Judge, Warangal in O.P.No.226 of 2006, the Tribunal

dismissed the claim of the claimant- injured on the ground that he did

not examine the doctor who treated him and issued injury certificate.

Assailing the said award and decree, the claimant filed the present

appeal.

2. The case of the claimant is that he is a laborour and resident

of Julywada, Hanamkonda. On 23.5.2005 he boarded an auto

rickshaw bearing No. AP 1 U 3477 at Ambedkar Statue near Depot

Crossroads, and was proceeding to Old Bus Depot side, and that when

the auto reached near a medical shop and proceeding on the extreme

side of the road, the driver of the auto drove the vehicle in a rash and

negligent manner and in a high speed, and tried to avoid the accident

with another vehicle, and in that process, could not control the auto,

and it turned turtle, and as a result, injured fell down and the auto

ran over his legs, and thus he received injuries. Immediately, after the

accident, he was shifted to Dr. Surender Reddy's Hospital,

Hanmakonda for treatment, where the doctor informed that the

claimant received severe crush injury, and amputation was done on

the same day.

3. On a complaint given by Yamsani Sravani, police registered

case against the driver of the auto rickshaw Gunda Narsaiah. The

police investigated into the case and filed charge sheet against the

driver of the crime auto.

4. With these averments, the claimant filed claim petition under

Section 166 of the Motor Vehicles Act, 1988, claiming compensation of

Rs.5,00,000/-.

5. The owner of the auto rickshaw involved in the accident

remained ex parte, and the insurer i.e., Oriental Insurance Co. Ltd.,

filed counter affidavit and contested the claim by denying the manner

of accident pleaded by the claimant, and further contending that the

compensation claimed is excessive, sought for dismissal of the claim

petition.

6. The Tribunal considering the evidence of the claimant, who

was examined as P.W.1, and also the copy of the charge sheet which

was filed after investigation against the driver of the auto rickshaw

bearing No. AP 1 U 3477, marked as Ex.A-3, held that the accident

occurred due to rash and negligent driving of the driver of the crime

vehicle.

7. Coming to the assessment of compensation for injuries

sustained by the claimant in the accident, the Tribunal held that as

the claimant failed to examine the doctor, who treated the claimant

and issued Ex.A-2 injury certificate, the oral evidence of P.W.1 and

Ex.A-5, which is the disability certificate, cannot be considered and

accordingly rejected the claim petition. Aggrieved by the same, the

claimant filed the present appeal.

8. Heard Sri M.Ajay Kumar, learned counsel for the claimant

and Sri B.Yuvaraj, learned counsel for the 2nd respondent - Insurance

Company.

9. In the present case, there is no dispute that the accident

occurred due to rash and negligent driving of the driver of the auto

rickshaw bearing No. AP 1 U 3477.

10. With regard to injuries, the case of the claimant is that

because of the accident the auto turned turtle and he fell down from

the auto, and the tyres of auto ran over his legs, and he, and others

received injuries, and that immediately he was shifted to Dr.Surender

Reddy's Hospital, Hanamkonda for treatment, where the doctor

informed that the claimant received severe crush injury, and that

amputation was done on the same day.

11. In his evidence, he deposed as per the above averments,

which are made in the claim petition, and got marked Ex.A-2 injury

certificate, which shows that he received three injuries viz.,

(1) Compound crushed fracture both bones of right leg; (2) abrasion

measuring 3 x 2 cms. on left knee; and (3) abrasion measuring

3 x 3 cms. on left elbow. The further case of the claimant is that there

was amputation of right leg below knee. The claimant also examined

P.W.2, who is an Orthopedic Surgeon and issued Ex.A-5 disability

certificate. P.W.2 deposed that claimant is having 50% of permanent

disability due to amputation of right leg below knee. In these

circumstances, the issue that arises for consideration is, whether the

disability certificate issued by P.W.2, assessing the disability at 50%,

as there was amputation of right leg below knee, can be relied upon to

award compensation?

12. At this stage, it is necessary to look into the law laid down

by Apex Court in this regard. The Apex Court in Raj Kumar v. Ajay

Kumar, (2011 ACJ 1), in a very erudite judgment, has dealt with

principles of assessment of damages in injury cases. Dealing with

disability certificates the Apex Court held as follows:

"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give 'ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the

Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability."

(Emphasis added)

13. From the above judgment of the Apex Court it is clear that

mere production of a disability certificate is no proof of the extent of

disability till the Doctor who issued the certificate or treated the

patient is tendered for cross examination in Court.

14. In the present case, the claimant has examined P.W.2, who

is an Orthopedic Surgeon and issued Ex.A-5 disability and he deposed

before the court that the claimant is having 50% of permanent

disability due to amputation of right leg below knee.

15. In these circumstances and having regard to the evidence of

P.W.2, who issued Ex.A-5 disability certificate, and in the absence of

any rebuttal evidence by the Insurance Company, I am of the

considered view, the approach of the Tribunal, in rejecting the claim

petition, cannot be sustained and the impugned order to the extent of

rejecting the claim of the claimant cannot be sustained, and I am

inclined to grant compensation taking the disability of the claimant as

50%, as his right leg below knee was amputated. However, as the

doctor who treated the injured was not examined, the injury certificate

Ex.A-2 cannot be taken into consideration, and no amount can be

awarded for injuries. However, as stated above, this court is inclined

to grant compensation under permanent disability.

16. Learned counsel for the claimant relying on the judgment of

the Apex Court reported in SRIANTHONY @ ANTHONY SWAMY vs.

THE MANAGING DIRETOR, KSRTC (2020 ALL SCR 1403) contended

that the right leg below knee was amputated and as the claimant was

a labourer, the functional disability shall be taken at 75% instead of

50%. This contention cannot be countenanced for the reason that the

doctor P.W.2 who issued Ex.A-5 disability certificate deposed that he

sustained 50% disability, as his right leg below knee was amputated.

However, it could be seen that he can perform other functions, and

that he is not totally paralyzed because of the disability. Hence, even

the functional disability also can be assessed only at 50%.

17. It is stated that the claimant was a labourer and as per

Exs.A-1 and A-3, which are the certified copies of FIR and Charge

Sheet, the claimant is shown as aged 48 years as on the date of the

accident. Hence, I am inclined to take his monthly income as

Rs.4,000/-, and Rs.48,000/- per annum.

18. The claimant is aged 48 years, and as per the judgment of

the Apex Court in NATIONAL INSURANCE COMPANY LTD. vs.

PRANAY SETHI1, an addition of 25% of the established income shall

be made towards future prospect. 25% of Rs.48,000/- comes

Rs.12,000/-. Thus the annual income of the claimant including

future prospects comes to Rs.60,000/-. For the age group of the

deceased, who is 48, the appropriate multiplier as per the judgment of

the Apex Court in SARLA VERMA vs. DELHI TRANSPORT

CORPORATION2, is '13'. Thus the total amount comes to

Rs.7,80,000/- The disability sustained by the claimant as per Ex.A-5

certificate, which is testified by P.W.2, is 50%. Hence, the total loss of

income comes to Rs.3,90,000/-.

19. Further, having regard to the facts and circumstances of

the case, I am inclined to grant an amount of Rs.25,000/- towards

pain and suffering, Rs.15,000/- towards attendant charges, extra

nourishment and transportation, and Rs.10,000/- towards medical

expenses.

20. Thus, in all, the claimant is granted an amount of

Rs.4,35,000/- with interest at the rate of 7.5 per cent per annum from

the date of the claim petition, till the date of realization.

21. The claimant filed Ex.A-4, attested copy of Insurance Policy

Schedule of the crime auto and the same is not disputed by the

AIR 2017 SC 5157

(2009)6 SCC 121

2nd respondent - Insurance Company. Thus, it is clear that the policy

of the crime vehicle, which was issued by 2nd respondent, was in force

as on the date of the accident. Hence, the respondents 1 and 2 are

jointly and severally liable to pay the compensation. The

compensation amount shall be deposited within a period of two

months from the date of receipt of a copy of this order.

22. The appeal is accordingly allowed in part.

23. Interlocutory Applications pending, if any, shall stand

closed. No order as to costs.

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M.G.PRIYADARSINI,J DATE:16--11--2022 avs