Ramesh E. vs Raja Reddy N. and Another

This appeal is preferred by the claimant aggrieved by the judgment and award dated March 21, 1990 passed by the Motor Accidents Claims Tribunal, Nizamabad, in O.P. No. 211 of 1998, for enhancing the compensation. The respondents though served, remained unrepresented.

It is the case of the claimant that on May 4, 1988 when he was travelling in the trailer of the Tractor bearing No. ATJ 4069 belonging to Respondent No. 1, the accident occurred at about 12-00 noon due to the rash and negligent driving by the Driver of the Tractor. In his deposition as P.W. 2 the claimant stated that the driver was driving the vehicle in a zig-zag manner at a high speed and as a result of which he fell down from the Tractor on the road. He deposed that the accident took place in the out skirts of Kota Armoor and that the wheels of the trailer ran over his left leg and as a result he suffered fracture to his leg. Thereafter, he was taken to the Government Hospital at Nizainabad, where he was an inpatient for nearly two months and seven days. He deposed that he was taking treatment even on the date of his giving evidence before the Court. The Claims Tribunal having held that the accident occurred due to the rash and negligent driving by the Driver of the Tractor, in all awarded a compensation of Rs. 29,360/- Under these circumstances, the claimant has approached this Court for enhancement of the compensation.

So far as the rash and negligent driving is concerned, the said finding is not challenged before me by the respondents either by filing an appeal or cross-objections. Hence I am proceeding on the basis that the claimant has suffered the injury in question due to the rash negligent driving by the Driver of the Tractor.

Regarding compensation payable, the claimant in his evidence as P.W. 2 stated that he was working as a Coolie and earning Rs. 30/- per day, and due to the accident in question he was disabled to work as Coolie. He also examined the Doctor who was working as Civil Surgeon in Orthopedic in Government Civil Hospital, Nizainabad, as P.W. 1. The Doctors, stated that the claimant was admitted in the hospital on May 4, 1988 and that he had suffered compound fracture of lower third of left femur and that he was discharged on July 11, 1988. He stated that the claimant was treated by a method called immobilisation of the limb in Thomas splint and no operation was conducted. He stated that he issued Discharge Certificate, Ex.A. 1 and Disability Certificate, Ex.A.2. From the evidence of P.W. 1 it is clear that the claimant suffered the following injuries :

"1. Shortening of left lower limb by one inch with limitation of felexion of left knee joint by about 10 degrees. With difficulty in sitting on flat feet. The extent of disability is 20%. It is partial permanent disability.

The learned counsel for the appellant relying upon the Judgment of the Madras High Court in Mgt. of Tamilnadu Cement Corporation Ltd. Vs. N. Jayapalan, , contended that the medical evidence as to the nature of the injuries and disability suffered cannot be taken as a conclusive evidence regarding the loss of capacity of the person injured . He submitted that though the Doctor's certificate may serve as a good guide, but still the Court can come to a different conclusion on the basis of the same evidence. I have gone through the said judgment. In Para 3 of the said Judgment the learned single Judge observed as under at p 839 :

"Besides, learned Counsel for the respondent drew my attention to the fact that the injuries sustained by the worker herein are not covered by Schedule I of the Workmen's Compensation Act, 1923. u/s 4(1)(c)(ii) of the Act the amount of compensation shall be, in the case of an injury not specified in Schedule such percentage of tire compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. So the assessment of the doctor has been given a finality by virtue of Section 4(1)(c)(ii) of the Act and that the medical evidence is conclusive on this aspect. However, I am unable to find any support in the language of the Section for such a proposition. Instead can only hold that the percentage of permanent disability as fixed by the doctor is a proper guide to assess the damages by the is Court. And it is always open to the employer to establish in cross-examination of the doctor that the opinion rendered by him is unacceptable. But in this case, except for the suggestion that Ex.P. 4 has been issued by doctor without properly examining the injured, there is nothing in his cross-examination to discard his opinion that the percentage of permanent disability is 20 per cent."

This proposition of law enunciated by the High Court of Madras, I do not think, can be disputed. The Doctor's evidence is an opinion evidence like any other expert evidence. On the basis of this evidence, the Courts draw necessary inferences as to the disability. Even otherwise, as held by the Madras High Court, many a times, the Courts find safe to rely on the expert opinion. However, it is always open to the other side to establish in the cross-examination of the doctor that the opinion rendered by him is unacceptable. In the instant case, on the basis of the evidence on record, I am of the opinion that the evidence of the doctor cannot be assailed and in fact it is the claimant who has examined the doctor as P.W. 1., and it is for the respondents to disprove such evidence. But, that is not done in this case. Therefore, I have to hold that the Court below has rightly accepted the partial permanent disability at 20 per cent, and the same said finding does not call for interference by this Court.

So far as the actual income of the claimant is concerned, the Court below has accepted the plea as forth by the claimant that he wash, earning Rs. 30/- per day and he was aged about 30 years as on the date of the accident. The Court below took into consideration the fact that agricultural coolies will not have work throughout the year and took the monthly income of the claimant at Rs. 600/- per month. This part of the finding of the Lower Court is quite reasonable and is acceptable. The Lower Court on that basis took the loss of income as Rs. 120/- per month which is 20 per cent of the monthly income of Rs. 600/- and thus arrived at a figure of Rs. 1,440/- per annum. By taking the multiplier of 19, the total loss of income was worked at Rs. 27,360/-. Though, according to the ruling of the Supreme Court in U.P. State Road Transport Corporation and Others Vs. Trilok Chandra and Others, , the maximum multiplier that can be taken is 18, but having regard to the facts and circumstances of the case and having regard to the fact that the claimant was hale and healthy at the time of the accident, I do not think any injustice would be caused if the multiplier is taken as 19 instead of 18. Moreover, the respondents have not challenged this part of the award. Therefore, I fully agree with the conclusion arrived at by the Court below.

Towards treatment and extra nourishment, though the claimant claimed Rs. 8,000/-, the Court below has awarded only Rs. 1,000/-, which is definitely on the lower side having regard to the fact that medicines have gone very costly now a days, and also having regard to the fact that the doctor in his evidence stated that the claimant suffered compound fracture of lower third of left femur, and for that he must have spent considerable amount for medicine and nourishment. Having regard to the facts and circumstances, I think it would be appropriate to award Rs. 5,000/- on this head.

Regarding pain and suffering, the Court below awarded only Rs. 1,000/- as against Rs. 7,000/- claimed by the claimant. As I have already noticed above, the claimant suffered compound fracture and he was an inpatient for not less than 2 months and seven days and the claimant might have suffered considerable pain. Therefore, enhance the compensation on this head to Rs. 5,000/-. Thus, the claimant in all would be entitled to a compensation of Rs. 37,360/- (i.e. Rs. 27,360/- + Rs. 5,000/- + Rs. 5,000/-). On this amount he would be entitled to interest at the rate of 12 per cent per annum from the date of filing the petition till realisation of the amount awarded by the Court below.

The learned Counsel for the appellant claimant strenuously contended that the Court below is in error in directing to deposit the compensation amount in any Scheduled Bank. The further direction not to permit the claimant to raise loan on the said fixed deposit and the fixed deposit is not transferable is also illegal. But, this point is not acceptable to me in view of the fact that the Division Bench of this Court in Smt. Gopaneni Lakshmamma and Others Vs. Gayaranga Dey and Others, has held that it would be in the interest of the claimants not to permit them to so withdraw the compensation. The Division Bench of this Court relied upon the judgments of the Honourable Supreme Court and also certain research studies published in this behalf and found that whenever the compensation is given in lump sum the said amount is frittered away for the purpose other than for which it is intended and a large chunk of money is taken away by those assisting the litigation. In view of this law declared by the Honourable Supreme Court and the Division Bench of this Court, which are binding on me, I do not think that it is possible for me to permit the claimants to withdraw the entire compensation amount. In this view of the matter, confirm the direction issued by the Claims Tribunal in this behalf. In other words, the amount shall be deposited in the scheduled bank with the conditions and stipulations as imposed by the Claims Tribunal.

The appeal is partly allowed and the impugned judgment and award of the Claims Tribunal is modified to the extent mentioned above. No costs.