Mohinder Singh Vs Surjit Singh and Another

Present appeal has been preferred by the injured/appellant/claimant being aggrieved by the impugned award dated 14.01.1998, passed by learned Motor Accident Claims Tribunal, Hoshiarpur (hereinafter referred to as ‘ Tribunal ’) vide which compensation of Rs.22,840/- was awarded to injured appellant-claimant on account of injuries suffered by him in motor vehicular accident dated 20.08.1994, caused due to the rash and negligent driving of respondent No.1 while driving truck bearing registration No.PB-07-A-9612.

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In present case, neither any appeal nor any cross-objections have been preferred by respondents challenging finding of Insurance company as regards to manner of accident. Therefore, detailed facts regarding manner of accident are not being reproduced herein for the sake of brevity.

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FAO-1289-1998 (O&M)

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Appellant-claimant in his claim petition had claimed that on account of accident, he had suffered multiple grievous injuries on his right leg. Injured appellant-claimant was taken to Civil Hospital at Mukerian, Pathankot and thereafter shifted to Ranjit Memorial Hospital, Pathankot. Accordingly, compensation of Rs.2,00,000/- was sought by injured appellant-claimant. Appellant-claimant had also claimed that he had suffered permanent disability to the extent of 15%. Treating doctor who treated the appellant-claimant originally in his testimony has stated that injured appellant-claimant had suffered disability in the extent of 15% in respect to the lower limb. In order to prove the nature of injuries as well as nature of permanent disability appellant-claimant had examined PW9 Dr. JS Purewal who was not the treating doctor but had issued disability certificate Ex. P9/A vide which injured was found having permanent disability to the extent of 15%.

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Learned Tribunal, however, has discarded the disability certificate on the following grounds:-

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i) The doctor who had issued the certificate had not treated the claimant.

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ii) That stiffness of knee cannot held to be disability to the extent of 15 percent.

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iii) That no parameters had been disclosed by doctors as to how disability arrived at.

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iv) That government rules under which disability was determined were not placed on record.

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v) That treatment records were not gone into by doctor issuing

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disability certificate.

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On the basis of above noted reasons the disability certificate was rejected/ignored by learned Tribunal.

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On consideration, I find that rejection of disability certificate issued and proved by doctor from Civil Hospital who after examination of appellant-claimant had issued permanent disability certificate Exhibit P9/A, cannot be held justified. It is worth noticing that the evidence in motor accident claim cases has been appreciated on the standard of proof of preponderance of probabilities, whereas in criminal cases, the conviction can be secured only by proving the case beyond reasonable doubt. In present case government doctor from government hospital had duly examined the injured appellant-claimant and had found that he was suffering from stiffness of knee resulting into restricted movement and accordingly permanent disability to the extent of 15% was found and recorded. Permanent disability certificate is generally issued by doctor after treatment of patient is over. It is not based upon nature of treatment but is based upon extent of recovery from the injuries suffered by the injured person. After treatment is over if on account of injuries a person still finds difficulty in carrying out his day to day work then as per government instructions the permanent disability can be determined even by a doctor who had not treated the injured person. It is not necessary that permanent disability certificate can alone be issued by treating doctor. It can be issued by any competent and qualified professional who is well versed with the manner in which permanent disability is to be ascertained based upon nature of restriction being faced by injured person. Similarly, once doctor has proved issuance of

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disability certificate as per government rules it was not necessary to place government rules for the perusal of the Court. In case there is any infringement of government rules it was for respondent or for the Court to summon and notice infringement in issuance of permanent disability certificate in violation of government rules. However no such exercise was done and therefore the learned Tribunal could not have rejected the disability certificate only on this ground.

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The learned Tribunal has further erred in rejecting disability certificate despite the fact that same was issued by competent medical practitioner who had ample experience and was well qualified by substituting it by own opinion. Stiffness of knee which is permanent and not curable can be considered as permanent disability. Permanent disability is basically disability which continues for life and is not curable.Furthermore, in present case Dr. Suresh Sharma treating doctor who appeared as AW4 has also been examined by appellant-claimant who had asserted that that knee of injured appellant-claimant is stiff and range is 0 to 90%. He also stated that ankle is also stiff and there was shortening of leg by 3/4th inch on account of fracture. He had given disability to the extent of 20%. Since the disability given by treating doctor was 20% at the time of treatment. However PW9 who had examined appellant-claimant subsequently had concluded disability to the extent of 15% after the treatment. Therefore the disability so arrived at by PW9 has to be accepted.

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In view of above discussion, the finding of learned Tribunal rejecting evidence of PW9 and disability certificate Exhibit P9/A cannot be upheld and is accordingly set aside. It is held that appellant-claimant had

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suffered permanent disability to the extent of 15% on account of injuries suffered by him in accident and which has resulted fracture on right leg. Functional disability is taken as 15%, keeping in view that appellantclaimant had claimed to be engaged in agricultural work. Restricted movement of knee would hamper his day to day agricultural work and would reduce earning capacity.

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In present case, appellant-claimant has claimed that he was earning Rs.3,000/- per month by working as an agriculturist. Injured appellant-claimant orally claimed to be the owner of 7 acres. However, except for oral assertion, no documentary evidence/material was placed on record to conclude that injured appellant-claimant was owner of any land. No revenue records were produced. No evidence in shape of J Form has been placed on record. Therefore the only conclusion which can be drawn from the evidence led by appellant-claimant is that he was a man of 30 years having good physique and must be supporting his family. Therefore income of injured appellant-claimant is to be taken equivalent to minimum wages payable to an unskilled worker prevalent at the time of accident. Accordingly income of appellant-claimant is determined as Rs. 1,153/- per month. Since, appellant-claimant was aged 30 years at the time of accident multiplier of ‘17’ would be applicable and addition of future prospects to the extent of 40% needs to be taken into consideration while calculating loss of earning capacity.

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In view of nature of injuries as well as permanent disability suffered by injured appellant-claimant to the extent of 15% it is clearly made out that appellant-claimant shall suffer loss on account of loss of future

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prospects and future amenities accordingly, an amount of Rs.35,000/- is awarded under this head. Appellant-claimant had suffered fracture as well as permanent disability and therefore, must have undergone immense pain and sufferings. Accordingly an amount of Rs.35,000/- is granted for pain and sufferings. Appellant-claimant must have remained out of vocation for at least 4 months on account of fracture of right leg, accordingly he shall be entitled to Rs.4612/- (1153 x 4 months) for loss of income during treatment.

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Claimant-appellant had also sought recovery of medical expenses along with expenses on special diet, attendant and transportation. However, all the bills relied upon by the claimant-appellant claiming reimbursement of medical expenses were duly considered by learned Tribunal in para 25 of its award dated 14.01.1998. Para 25 of the award is reproduced as under for ready reference:-

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25. Now It has to be seen as to whether the receipts with regard to purchase of medicines issued by Ravi Medicos can-be reimbursed to the claimant Mohinder Singh or not. He has produced AW5 Ravi who brought the counterfoils of the bills/receipts which are Ex. AW5/1 to Ex. AW5/30. In the crossexamination he admits as under:-

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(i) He admits that medicines issued through these bills are not mentioned in the prescription slips Ex,AW4/7 to EX. AW4/11. According to him none of these medicines supplied by him are covered by the prescription slips mentioned above.

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(ii) He admits that bill No.311 EX.AW5/1 medicine has been mentioned in accordance with the prescription slip cost of which is Rs.438/-

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(iii) Out of bills Nos.402 and 417 Ex.AW5/6 & 7 only two medicines namely “odoxil and Lincocin" covered by

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prescription slips and the remaining medicines are not covered. Cost of these two medicines are Rs.435/- & Rs.150/-.

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(iv) He further admits that out of bill No.474 Ex. AW5/9 one medicine namely Becasule is covered by the prescription slip and the cost of this medicine is Rs.16/-.

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(v) Out of bill No.522 Ex.AW 5/10, one medicine is covered under this bill. Name of that medicine was not given by him. Nonetheless amount of Rs.66/- is being awarded to claimant as the second medicine is of Rs. 43/-.

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(vi) Out of bill No.722 Ex. AW5/11 three medicines are covered under the prescription slips but the names of these medicines have not been given. Nonetheless the value three medicines on the higher side to the tune of Rs.250.29 is being awarded to the claimant.

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(vii) Out of bill No.734 Ex.AW5/12 four medicines are covered under the prescription slips. Names of the 4 medicines have not been given. Nonetheless the value of 4 medicines on the higher side to the sum of Rs.360/- is being awarded to the claimant.

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(viii) Out of bill No.860 Ex. AW5/13 three medicines out of 7 medicines are covered under the prescription slips and the remaining medicines are not covered. The higher value of three medicines out of medicines to the sum of Rs.632/- is being awarded to the claimant.

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(ix) Out of bill No.919 Ex. AW5/14 three medicines are covered out of 7 medicines under the prescription-slips and the higher value of the 3 medicines is being given to the claimant to the sum of Rs. 255/-.

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(x) Out of bill No.943 Ex. AW 5/15 only one medicine is covered and the higher value 1.e. Rs.66.70 is given to the claimant.

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(xi) out of bill No.952 Ex. AW5/16 two medicines out of 3 medicines are mentioned in the prescription slip and the

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higher value of the amount of Rs.170.30 is hereby given to the claimant.

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(xii) Out of bills Nos. 601, 659, 660, 667, 670,674, 678, 688, 692, 706, 743, 748, 765, 814, no medicine is covered under the prescription slips which are Ex. AW4/7 to Ex. AW 4/11.

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(xiii) He admits that in bill book from 301 to 400, b111 No.335 alongwith its original copy is lying blank in the bill book.

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(xiv) He further admits that bill No.416 in the bill book has been cancelled and there is no mention of the medicine in the same.

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He had not brought the counter foil from Bill No.501 to 600. He had seen bill book No.701 to 800 and he admits that bill Nos.744, 786, 785, 784, 783, 776, 775, 773 were lying blank alongwith its original bills in the copy. He did not bring with him the counter foils from bill Nos.601 to 700 as the same were not traceable in their record.

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(xv) The bills which were lying blank have been left because no body has demanded those bills. He further admits as under:

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"If somebody asked for those serial numbers of bills we will issue the same.”

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"I do not know whether the medicines sold to Mohinder Singh were required by him for his treatment or not.”

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On consideration of various bills as well as reasons recorded by the learned Tribunal, I find that learned Tribunal has rightly appreciated the evidence led by appellant-claimant and has rightly granted reimbursement only pertaining to medicines covered by prescription. I do not find any error

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in manner in which learned Tribunal has appreciated the evidence. In motor

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accident claim cases, if it comes on record that medical bills pertain to medicines that were not prescribed such bills are liable to be ignored. However, this depends upon the evidence in each case and cannot be applied as a general rule. Where it is proved or admitted that the medicines purchased were not prescribed by the treating doctor, the Court may exclude the cost or such medicines from consideration, otherwise, the reimbursement cannot be denied.

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Accordingly compensation of Rs.15,000/- awarded for medical expenses, special diet, transportation and attendant charges is upheld.

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Re-worked compensation payable to injured appellant-claimant

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is as follows:-

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Income	Rs.1,153/- per month (as per minimum wages)	Rs.1,153/- per month
Futureprospects	40%(1,153+461)	Rs.1,614/-
15% Functional Disability	15% of Rs.1,614/-	Rs.242/-
Multiplier		17
Loss of earningcapacity	Rs.242 x 12 x 17	Rs.49,368/-
Pain and sufferings		Rs.35,000/-
Compensation of loss of future prospects and future amenities		Rs.35,000/-
Loss of income duringtreatment	Rs.1,153 x 4	Rs.4,612/-
Medical expenses, special diet, transportation and attendant charges		Rs. 1,5000/-
Compensation awarded by Tribunal	Rs.22,840/-
Compensation awarded in Appeal		Rs.1,38,980/-
Enhancement of compensation	Rs.1,38,980/- (awarded in appeal)-Rs.22,840/- (awarded byTribunal)	Rs.1,16,140/-