Kumara vs N. Subramani

Aravind Kumar, J.—Learned Advocates appearing for the parties in chorus submit that in view of I.A. 1/2014 having been filed by appellant seeking production of additional evidence matter be remanded to Tribunal, to enable both the parties to tender evidence.

This is a claimant''s appeal seeking for enhancement of compensation not being satisfied with the quantum of compensation awarded by MACT, Mysore dated 13.12.2010 in MVC 1131/2009. It was contended by the claimant before Tribunal that on account of injuries sustained in a road traffic accident that occurred on 17.02.2009 while proceeding in a motorcycle along with his friend from Nanjangud to Mysore, a goods van coming from opposite side dashed against him and due to the impact he fell down and sustained multiple injuries. Hence, claimant sought for payment of compensation of Rs. 6,50,000/- contending inter alia that on account of said injuries sustained he has suffered consequential disability.

Before the Tribunal claimant got himself examined as PW-1 and also examined two witnesses including the Doctor. In all he had produced and got marked 13 documents as Exhibits P-1 to P-13. Insurer produced the policy issued to the offending vehicle and got it marked as Exhibit-R-1. Tribunal on evaluation of entire evidence available on record allowed the claim petition in part and awarded compensation under the following heads:

Not being satisfied with the said compensation claimant is seeking for enhancement. Subsequent to the filing of the appeal claimant has filed an application under Order 41 Rule 27 of C.P.C. enclosing 70 medical bills, train and bus tickets-5 nos. and estimated cost of surgery said to have been issued by Ganga Hospital, Coimbatore and is seeking for said documents being received by way of additional evidence.

Sri. B. Pradeep, learned counsel for respondent No. 3 would vehemently oppose said documents being received on record on the ground that insurer not being given an opportunity to rebut said documents and if those documents are received on record as additional evidence it would cause prejudice to the insurer. He would also contend that certificate dated 03.03.2014 said to have been issued by Ganga Medical Centre and Hospitals (P) Ltd., Coimbatore cannot be received as additional evidence since it would not only indicate the probable cost that claimant will have to spend in the event of undergoing surgery and when the author of said document has not been examined its contents cannot be accepted.

Having heard the learned advocates appearing for the parties and on perusal of the records it would indicate undisputedly claimant had sustained injuries in the road traffic accident that occurred on 17.02.2009 and the injuries sustained by the claimant are fracture of upper 3rd of right humerus, fracture of mid 3rd of right femur, fracture of both the bones of mid shaft and fracture of ulna lower 3rd on right forearm and he had taken treatment for a period of 53 days as inpatient at K.R. Hospital and Kamakshi Hospital, Mysore. Doctor who has treated the claimant has opined disability of the claimant is 90%. In the background of available medical records tribunal has taken whole body disability at 20% on the ground that doctor who was examined as PW-3 has stated in the cross examination that the whole body disability is at 65% and his evidence being inconsistent disability assessed is to be held as exaggerated.

Medical bills (70 nos.) which have been produced along with application are all subsequent to the filing of appeal. There is no evidence of doctor with regard to the said medical bills and treatment said to have been obtained by claimant at Kamakshi Hospital and other hospitals. In the absence of such evidence available on record to substantiate the claim it would not be proper for this court to accept the said documents by way of additional evidence particularly in the background of insurer not having been extended opportunity to rebut said evidence.

This court is of the considered view that in the interest of justice, it would suffice if the impugned judgment and award is set aside and matter is remitted back to the tribunal for adjudication afresh for considering the medical bills now produced by the claimant along with an application. Hence, application as well as documents appended to the application are ordered to be transmitted to jurisdictional tribunal for its consideration and also permitting the claimant to tender further evidence if sought for. It is needless to say, if a prayer is made by the insurer to rebut said evidence same shall be considered by tribunal favourably.

It is also made clear that present appeal having been filed on 12.10.2011 and application in question having been filed on 28.03.2014 and no reasons have been forthcoming in the affidavit supporting the application as to why these bills were not produced at the first available opportunity since most of the bills are of the year 2011. In that view of the matter, I am of the considered view that ends of justice would be met if it is held that in the event of appellant succeeding in persuading the Tribunal to award compensation towards these bills claimant would not be entitled for interest on the enhanced compensation from 12.10.2011 upto 28.03.2014. Hence following:

ORDER

Appeal is hereby allowed.

Judgment and award passed by MACT, Mysore dated 13.12.2010 in MVC 1131/2009 is hereby set aside and matter is remitted back to Tribunal for adjudication afresh.

Registry is directed to transmit the application I.A. No. 1/2014 along with documents appended thereto, to the jurisdictional tribunal forthwith.

Appellant is at liberty to tender oral evidence and he is at liberty to get these documents marked before Tribunal and insurer would be at liberty to cross examine the claimant and tender evidence in rebuttal, if so, advised.

Both parties are directed to appear before the Tribunal on 26.09.2014 without awaiting for any further notice.

In the event of Tribunal awarding enhanced compensation it is made clear that claimant would not be entitled to interest from 12.10.2011 to 28.03.2014.

No costs.