Rajesh Kumar Mishra vs Kashiram and Others

S.S. Jha, J.—This appeal is filed by claimant for enhancement of comepnsation.

Brief facts of the case are that on 15th February, 1993 appellant has hired a autorickshaw from Jiwaji Chowk, Lashkar to Pachasa Line bearing registration No. MKH-502. According to the claimant auto-rickshaw was driven in a rash and negligent manner and in a fast speed and the autorickshaw dashed against a standing jeep bearing No. MKH-7288 near Chhatri Mandi. On account of accident appellant suffered injuries in the left leg and fractures in the tibia and fibula bones. " Incident occurred at 10.30 in the night. Appellant was admitted in J.A. Group of Hospital. Appellant was not satisfied with the treatment of J.A. Hospital then they went to the Nursing Home run by Dr. D.K. Gupta and he was admitted in the hospital from 17th Februrary, 1993 to 21st February, 1993 for about 5 days. He has stated that during this period his left leg was operated and iron plate was fixed. He was discharged from the Nursing Home and was visiting the hospital for post-operation dressing. He has spent Rs. 10,000/- on medicines and treatment and he was taking special diet and he has claimed compensation for Rs. 7,80,000/ -. Claim was denied by the respondents. Claims Tribunal after recording the evidence awarded compensation of Rs. 25,000/-.

Counsel for appellant submitted that the quantum of compensation is too low. Counsel for appellant further submitted that Claims Tribunal has erred in holding that there was no partial permanent disability to appellant. Appellant has examined Dr. Prabhat Kaushal (A.W. 3) to prove the partial permanent disability. Dr. Kaushal has examined the appellant on 19th August, 1995, whereas accident took place on 15th February, 1993 and on the basis of the examination by Dr. Kaushal more than 2 years after the accident, certificate was issued. Dr. Kaushal has admitted that he has not treated the appellant. Therefore, claims Tribunal has rejected the evidence of this Doctor, who has not treated the patient. Dr. Kaushal has further deposed that his statement is based upon the X-ray taken out by him to determine the disability, but said X-ray reports have not been produced before the Court by the said doctor. Therefore, Claims Tribunal has not committed any error in disbelieving the doctor''s evidence who has not treated the patient. There is no evidence on the question of disability. Claimant has not proved actual treatment charges. Claimant has filed cash memo worth Rs. 2748.99.

Considering the facts of the case that the claimant was required to remain in the hospital for about 5 days, there is no evidence that appellant was required to remain in hospital thereafter. There is nothing on record to demonstrate that after he was discharged from the private Nursing Home his condition has deteriorated and he has not suffered any other injury before Dr. Kaushal has examined him. The burden is on claimant to prove and establish that claimant was suffering from the injuries received by him in the accident and has not suffered any other injury after the incident. Applicant has not produced cash memos or receipt of the hospital. Ex. P-4 is a X-ray report. X-ray report has been filed, but the X-ray plate has not been exhibited in the Court and the Court has found the fractures of middle shaft tibia and upper end fibula. No report has been filed pertaining to operation of the claimant. However, there is no cross-examination of claimant pertaining to his operation.

Considering the facts of the case that claimant may have spent money on the operation which has not been taken into consideration by the Claims Tribunal, we award further sum of Rs. 15,000/- of the charges for operation and enhanced the compensation by the sum of Rs. 15,000/-. The award of the Claims Tribunal is modified and claimant will be entitled for further sum of Rs. 15,000/- towards operation charges. Compensation is enhanced to Rs. 40,000/-. Appellant be also entitled for interest at the rate of 6% on the enhanced amount of compensation from the date of filing of appeal

Appeal succeeds in part.