Shri Amit S/o. Narayanrao Yelne vs Vinod S/o. Vithobaji Kulurkar and another

Heard finally with the consent of Mr. Deo, learned counsel for the appellant and Mr. Maldhure, learned advocate for respondent No.2.

In the present appeal, the original claimant has filed the appeal seeking enhancement of the amount of compensation awarded by the Member, Motor Accident Claim Tribunal, Chandrapur, in Motor Accident Claim Petition No.189/2010, vide its judgment and award dated 17.02.2021.

It is the case of the present appellant that he was a petty Government contractor and was running a shop of tiles and electrical goods. On 05.04.2008, he was on his way to Pimpalgaon, Tah. Pauni, District Bhandara, by his motorcycle bearing registration No.MH-34-U-7154, to attend the marriage ceremony of his relative. After crossing village Bhuyar, he has parked his motorcycle at left side of the road to answer nature's call. After relieving himself, he returned and was about to start his motorcycle when an offending vehicle i.e. Maruti Alto Car bearing registration No.MH-40-A-4007, came from backside and dashed his motor cycle. Due to the dash, the appellant fell down and suffered grievous injuries to his right leg and other parts of the body.

The Appellant was then admitted in the Primary Health Centre at Bhuyar, District Bhandara. Looking to the seriousness to the injuries of the appellant, the Medical Officer referred him to District Hospital at Nagpur. The appellant was initially admitted at Dr. Kimmatkar's Hospital, at Nagpur. He was also treated at, "Avenue Critical Care Hospital at Nagpur", but, as there was no expert available at the said hospital, he was referred to Dr. Milind Chaudhary, At Akola. During this period, he underwent various surgeries. Due to the injuries caused to him, his right leg has sustained serious injury and as per the medical certificate the 45% of permanent disability was sustained to him in the said accident.

It is the submission of the appellant that due to the unfortunate accident, he could not run his shop, so also not in a position to continue the contract, which was obtained by him through Government. As a result, his earning capacity was lower down due to this accident. Hence, on the basis of the loss suffered, he filed a Claim Petition, before the learned Tribunal.

The case of the appellant is that from his business of tiles and electrical goods, he was earning Rs.7,000/- per month and as he had taken the Government contract of construction, he used to earn Rs.10,000/- per month. As such, his total annual income was Rs.1,84,000/-. Hence, on the basis of the income, he claimed compensation of Rs.61,21,900. The learned Tribunal, by the impugned judgment, has awarded the compensation of Rs.5,50,000/- to the appellant along with interest. The appellant being not satisfied with the compensation amount awarded by the learned Claims Tribunal, has approached before this Court for enhancement of the compensation.

Learned counsel for the respondent No.2-Insurance Company has strongly opposed the present appeal. According to him, the injury caused to the appellant was not a permanent disability. He has pointed out that the learned Tribunal has rightly recorded its findings on the basis of medical certificate issued by the Members of Civil Surgeon's Office of the Government Hospital (Exh.53). He submits that the disability certificate produced by the appellant is not the certificate of disability but an intimation of a rejection of the application for issuance of disability certificate. According to him, by the said certificate it was intimated that a disability certificate could not be issued as the percentage of disability was less than 40%. Hence, the medical certificate (Exh.53) placed on record by the appellant does not establish permanent disability or partial permanent disability. Therefore, according to him, the appellant is not entitled for the compensation.

According to respondent No.2, the injury which is caused to the appellant is of the fracture to his right leg with foot drop right ankle. Therefore, considering this type of injury, which is recoverable, the enhancement claimed by the appellant in the present appeal is exorbitant and in the facts and circumstances of the case, the same cannot be granted in the present matter.

Having heard both the learned counsels at length in the matter, it is clear that though the appellant is claiming to have 45% permanent disability due to the injuries sustained to him in the accident by placing reliance on the injury certificate (Exh.36) and disability certificate (Exh.52) issued by the General Hospital, Chandrapur, on 24.01.2011, needs to be considered in the light of the certificate issued by Civil Surgeon (Exh.53). The Civil Surgeon of General Hospital, Chandrapur, has examined the appellant and stated that as the percentage of disability being less than 40%, thus, the disability certificate could not be issued to him. Therefore, prima-facie, considering the certificate of Civil Surgeon of the General Hospital, Chandrapur (Exh.53), the contention of the appellant that he had caused 45% permanent disability cannot be accepted in the matter.

The other ground raised by the appellant is that the learned Tribunal has failed to award the compensation towards the medical expenses i.e. the medical bills, which were produced by him from Exh.44 to Exh.305 which is amounting to Rs.6,94,960/-. In respect of compensation towards the medical expenses, according to the appellant the compensation awarded by the learned Tribunal to the tune of Rs.2,16,000/- is not in consonance with the medical bills and the document which he has placed on record. According to him, he had produced medical bills at Exh.44 to Exh.305, which amounts to Rs.6,94,960/-, but, the same were not considered by the learned Tribunal, without recording to any cogent reasons.

From a perusal of the impugned judgment of the learned Tribunal as well as the documents available on record, it is clear that the appellant was initially hospitalized from 05.04.2008 to 14.04.2008. Thereafter, he was referred to Anuradha Surgery Centre, where he was admitted from 14.04.2008 to 12.05.2008. From the record, it is seen that he was further admitted to the Hospital at Dr. Milind Chaudhary, from 13.03.2009 to 30.03.2009. As such, during all this periods, since the date of accident, he was under medical treatment. Therefore, according to him, the medical bills which are produced by him on record are genuine and duly exhibited ought to have been considered by the learned Tribunal and thereby, awarded the amount so required for the treatment and hospitalization charges. However, according to him, the learned Tribunal has declined to consider the entire expenses towards hospital charges as well as towards the transportation charges, only because of the number of occasions on which the appellant had gone for follow-up treatment from Nagpur was not corroborated by medical certificate.

In this regard the appellant has specifically relied upon the judgment of this Court in the matter of Dattatraya Laxman Shinde Vs. Nana Raghunath Hire and Ors. reported in MANU/MH/1265/2011, wherein, it has been specifically held that if there are no allegation that the documents placed on record are fabricated, then in such cases, considering the nature of proceeding before the learned Tribunal, which are summary proceedings, such bills and vouchers ought to be taken into consideration by the learned Tribunal and accordingly, had awarded the compensation. The appellant has specifically relied upon paragraph No.24 of the judgment, which the reads as under:

The learned counsel for the respondent No.2 has relied upon the judgment of Hon'ble Supreme Court of India in the case of Rajesh Kumar @ Raju Vs. Yudhavir Singh reported in 2008(6) Mh.L.J. 21 to state that unless the author of the certificate is examined, such documents are not admissible in evidence. However, perusal of this judgment shows that the document involved therein was the medical certificate, which was relied upon by the claimant and in that regard the observations were made by the Hon'ble Supreme Court in the said matter. In the present case, the appellant's case is on the basis of original medical bills, which were produce before the learned Claims Tribunal and same were properly exhibited. Hence, this judgment relied by respondent No.2 is not be applicable in the matter.

In the light of the submissions made by both the parties, I have perused the entire medical bills from the original record, which are exhibited from Exh No.44 to 305, which are for a period 2008 to 2009 i.e., almost for period of one year. In my opinion, though the entire bills cannot be accepted, but looking to the expenses incurred by the appellant, as he was hospitalized from the date of accident i.e. 05.04.2008 to 12.05.2008 and thereafter, from 13.03.2009 to 30.03.2009, I am inclined to accept the medical bills to extent of Rs.5,00,000/- because some bills after perusal are found to be after the period of accident and also includes transportation charges etc. In my opinion, an amount of Rs.5,00,000/- towards the medical expenses would be justified in the matter.

The appellant has further stated that under the conventional heads i.e. future earnings, future prospects, future medical expenses, pain and sufferings, etc. he is entitled for the compensation. In support of this submission, the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court of India in the case of Mohd. Sabeer Alias Shabir Hussain Vs. Regional Manager, U.P. State Road Transport Corporation reported in 2023 (20) Supreme Court Cases 774.

According to the appellant, in the said judgment, the Hon'ble Supreme Court has held that in a case of permanent disablement, the claimant is entitled to not just future loss of income but also towards the future prospects. Therefore, relying on the said judgment, he has claimed the total compensation towards loss of future earnings and future prospects to the tune of Rs.10,22,000/- by considering his annual income at Rs.10,000/- as determined by the learned Claims Tribunal.

In the present case, considering the nature of injury, in my considered opinion, the functional disability caused to the appellant, at the most can be considered to the extent of 15% though the appellant has stated it to be as 45%. In support of this view, I am relying upon Exh.53, which is a certificate issued by the Civil Surgeon, General Hospital, Chandrapur. If 15% disability is considered, the appellant would be entitled towards the future earning to the amount of Rs.2,06,000/- and towards future prospects instead of 40% as laid down by the Hon'ble Supreme Court of India, in the present case the same can be consider Rs.4,00,000/- on a lumpsum basis.

In the present case, the appellant has produced the medical bills from the date of accident up to year 2009 i.e. for almost one and half years. The Civil Surgeon of Government Hospital has stated that his injury is recoverable. Therefore, in my considered opinion, considering that the injury is recoverable and the disability is only up to 15% and most of the medical bills from the date of accident till his recovery has already been considered by this Court and further no specific evidence towards the requirement of future medical expenses is available on records, the appellant is not entitled to the compensation towards future medical expenses.

It is seen from the record that appellant has caused injury to his leg. Therefore, he is having some physical limitation and disability. So also, the trauma of victim due to the accident and the pain and suffering which he has caused due to the accident for which he was not at all responsible, he is entitled to Rs.1,00,000/- towards the pain and sufferings, loss of marriage prospect, he is entitled for Rs.2,00,000/- and towards the loss of disfigurement and disability he is entitled for Rs.1,00,000/-. Towards the litigation charges he is entitled for Rs.25,000/-. Hence, in my opinion, the amount which is determined as under in the present case would be just and fair compensation in the matter :-

In view above the appellant is entitled for the compensation of Rs.13,19,000/-. Hence, the Judgment and Order passed by the learned Claims Tribunal needs to be modified. Accordingly, the following Order is passed:-

Needless to mention that the amount awarded by the learned Tribunal shall be deducted from the enhanced amount.

In view of above, the first appeal stand disposed of. No order as to costs.