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Judgment
This appeal has been filed by the owner of the vehicle and the Insurance Company against the claimant, challenging the quantum of compensation awarded by the learned member of M ACT, Dharwad by his judgment dt. 12-7-1990 in MVC No. 512/1986.
The accident happened on 8-5-1986 at about 1-30 P.M. near Halur village. The accident was caused by the driver of the bus MYA-3322. The claimant was travelling on that day in the bus MYA-3322, As a result of the accident the claimant sustained injuries.
The claimant made a claim for Rs. 2,55,000/- as compensation. The Tribunal awarded Rs. 1,62,000/-.
The liability of the owner and the Insurance Company was made joint and several.
The present appeal as I have already slated, has been filed by both the owner and the Insurance Company. Their case is that the compensation awarded is excessive.
The learned Member of the Tribunal awarded in all Rs. 1,62,000/- under the following heads :
Towards pain and suffer- ing : Rs. 35,000/- 2. Towards loss of amenities and enjoyment of life : Rs. 15,000/- 3. Towards loss of future earning capacity : Rs. 1,02,000/- 4. Towards medical ex- pansies : Rs. 10,000/- ___________________ TOTAL Rs. 1,62,000/- ___________________
Ex.P-1 is the Wound Certificate issued by the Health Officer, District Macgan Hospital, Shimoga. In Ex. P-1 it is stated that in respect of the injuries said to have been caused to the claimant in the accident dt. 8-5-1986, the following injuries were found by the doctor who examined on 26-9-1986 :
"Patient is semi-conscious, no external injury, patient referred to NIMHANS, Bangalore".
The doctor has given his opinion that the injury is grievous in nature since patient is having Cerebral Contusion with right sided Hemi paresis as per the report of the Rehabilitation Hospital Bangalore.
It is clear from the Wound Certificate Ex.P-1 that there was no external injury and there was only internal injury.
Ex.P-2 is the case summary issued by the National Institute of Mental Health and Neuro Sciences (NIMHANS) Bangalore. Ex.P2 is dt. 18-9-1986. As per Ex.P2, the examination of the claimant revealed that he was in altered sensorium, had expressive aphasia normal pupils and eye movement and right supra nuclear facial palsy with right hemiplegia.
It is stated in Ex.P-2 that after investigation, it was found that X-ray skull and left carotid normal. Ex.P-2 shows that the claimant was not admitted as an in patient in NIMHANS. After claimant was examined, "since there were no surgically treatable lesion, he was sent to Sanjay Gandhi Accident and Rehabilitation Complex, Bangalore with a diagnosis of cerebral contusion for further therapy", the treatment given to claimant was oral, Manito 150 ml.
Ex.P-3 is the Discharge Summary given by the Sanjay Gandhi Accidents and Rehabilitation Complex, Bangalore. Ex.P-3 shows that the claimant was an inpatient for five days from 11-5-1986 to 15-5-1986: As per Ex.P-3, the medical investigation conducted on claimant showed plain X-ray skull AP view normal, left carotid angiogram normal and cerebral contusion with right sided Hemi paresis.
It is clearly stated in Ex.P-3 that the patient has improved in his right sided Hemi paresis.
The advice given by the Sanjay Gandhi Accidents and Rehabilitation Complex was oral treatment viz., oral glycerol and syrup Altonc.
PW 3 M. N. Shivananda, who did not condescend to go to Tribunal, was examined on commission. fix. P-5 is the certificate issued by PW 3 doctor to the claimant. The certificate say "for medical certificate in respect of mentally handicapped". As per Ex. P-5, the claimant had the following neurological defects :
Slurred speech
Right upper Motor Neuron facial weakness.
Weakness of right hand (Power 4/5) and right leg (Power 4/5).
Brisk deep Tendon reflects on right side.
Palmer response on side extensor and left side equivocal.
Finger nose in co-ordination in the right upper limb.
The impression of doctor PW. 3 with respect to claimant is,
"Sequelae of left cerebral contusion. There is evidence of mild damage to right hemisphere also, as evidenced by equivocal plantar response on the left side. Diminished intelligent quotient."
Ex.P-5 has been issued on 5-5-1987. The accident happened on 8-5-1986. Obviously Ex.P-5 has been issued one year after the accident.
The doctor P.W. 3 has stated that his opinion is based on the clinical impression and that he has issued Ex.P-5. He has stated that his qualification is MBBS AND MD in General Medicine.
In cross-examination it has been suggested to this witness P.W. 3 (doctor) thai he has issued a false certificate as per Ex.P-5. It is suggested to this witness that the claimant does not have the disabilities spoken to by him in the examination sheet. Of Course, he has denied these suggestions.
In cross-examination this doctor has stated that he has not examined the claimant immediately after the accident and that he has not treated the claimant before issuing Ex.P-5. This witness has stated that records are maintained regarding examination of patients in hospital. In certain other aspects, this witness is evasive. He has stated that it is possible that the case papers of claimant are in the hospital. He has stated, that he docs not remember if he has taken claimant''s X-ray. He has stated that usually certificates like Ex.P-1 (Wound Certificate) are issued as per the entry found in MLC Register.
This witness has stated voluntarily that the contents in the Wound Certificate Ex.P-1 coincide with the contents of certificate issued by him as per Ex.P-5.
It is clear from the comparison of contents of Ex.P-1 with the contents of Ex.P-5 that the neurological defects spoken to by P.W. 3 and mentioned in Ex. P-5 do not find a place in Ex. P-1.
The evidence of doctor P.W. 3 who had not treated claimant prior to Ex.P-5 and who claims that he examined the claimant on 5-5-1987 cannot be swallowed. His evidence cannot be relied on to hold that the claimant had so many problems as a result of the injuries in the accident. It is obvious that P.W. 3 is not a neurologist.
The learned member of the MACT has committed two mistakes.
Taking into consideration the salary of the claimant at Rs. 850/- per month, the learned member of the tribunal has calculated earning at Rs. 10,200/- per annum and he has adopted multiplier of 18. The learned Member of the Tribunal has assessed the compensation as it claim petition were a case of death in the accident.
Secondly and more importantly. the learned Member of the Tribunal has believed the evidence of doctor P.W. 3. He has failed to notice the evidence of the doctor P.W. 3, discussed above, is not acceptable. The petitioner when he was examined before the Tribunal has given cogent evidence, though the member of the Tribunal has noticed that there was pronounced slur in the speech of the claimant when he was deposing.
The claimant was a conductor in bus. He has stated in his evidence that after the accident he was removed from the service. But he has not produced any document to show that he was removed from the service nor he has produced any evidence to show that he infact sought for a separate employment and he did not get it.
For the aforesaid reasons, I am of the opinion, that Rs. 1,02,000/-, awarded by the Tribunal towards loss of future earning capacity is on the high side, bearing in mind the entries in the Wound Certificate Ex.P-1 and Case Summary issued by NIMHANS Ex. P-2 and the Discharge Summary Ex.P-3 issued by Sanjay Gandhi Accidents and Rehabilitation complex, Bangalore. 1 reduce (his compensation towards loss of future earning capacity by Rs. 60,000/-. That is, I am of the opinion, that a sum of Rs. 42,000/- towards loss of future earning capacity will meet the ends of justice
I keep the figure Rs. 15,000/- towards loss of amenities and enjoyment of future life intact. I also keep infact the compensation towards medical expanses at Rs. 10,000/-.
Though the claimant was an in-patient for only five days and though Ex.P-1, Ex.P-2 and Ex.P-3 show that claimant was advised oral treatment, 1 keep the compensation of Rs. 35,000/- awarded towards pain and suffering intact since it is slated in the Wound Certificate Ex.P-1 that he was semi-conscious when he was first examined after the accident at the Macgan Hospital.
ORDER
The compensation awarded by the Tribunal is reduced by Rs. 60,000/-. The respondent-claimant is entitled to compensation of Rs. 1,02,000/- with interest at 6% per annum (as awarded by the Tribunal) from the dale of the petition till realisation. The appeal is allowed in part as stated herein. In the circumstances of the case, no costs in this appeal.
Appeal allowed in part