Ponnu S/o.Appayi vs Arun Kumar S/o.Chandran,

T.R.Ravi, J

The appellant, who claimed to be an agriculturist and a dairy farmer, earning Rs.5,000/- as monthly income, while standing on the side of a public road, was hit by a motorcycle driven in a rash and negligent manner by the 2nd respondent, causing injuries to him. The appellant was aged 55 years at the time of the accident. He suffered fracture of the right temporal bone, fracture of tibia & fibula of right leg, fracture of right clavicle and head injury. He preferred a claim for an amount of Rs.3,50,000/- as compensation and the Tribunal awarded a sum of Rs.81,750/-. The appeal is filed claiming enhancement of the compensation awarded by the Tribunal.

Heard Sri.Nimod A.R. on behalf of the appellant and Smt.Zahira on behalf of the insurer.

The contentions raised by the counsel for the appellant are two-fold. Firstly, it is contended that the Tribunal went wrong in fixing the notional income of the appellant at Rs.2,500/-. The second contention is that the Tribunal went wrong in not granting any amount towards permanent disability, for the sole reason that the Doctor, who issued Ext.A7 disability certificate, was not examined. The counsel submits that by the time the case was taken for trial, the Doctor was no more and hence the appellant was not in a position to prove the document. On the question of notional income, the counsel relied on the decision in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd., reported in [AIR 2011 SC 2951]. On the question of non examination of the Doctor, the counsel relied on the judgment of a Division Bench of this Court in Saramma Scaria v. Mathai, reported in [2002 (2) KLT 404], wherein it was held that the Tribunal can rely on medical reports issued by Doctors which are not objected to by the other side and in doubtful cases, the Tribunal can summon the Doctor. The counsel fairly submits that one of the findings rendered in the above case, that the Tribunal did not have jurisdiction to dismiss an application for default/non-prosecution after framing of issues, was referred to a Full Bench and the Full Bench of this Court in the decision in Jacob Thomas v. Pandian, reported in [2005 (4) KLT 545 (FB)], overruled the said proposition. The counsel relied on the decision of a Full Bench of this Court in Akhil v. KSRTC reported in [2015 (1) KLT 291] wherein this Court has held that the Tribunal has discretion to decide whether a claimant who has put forward a claim of permanent disability should be examined by a Medical Board or not or whether the claimant should be directed to be present in Court in person and can also direct personal appearance even after examination by a Medical Board or Medical Officer, if it is necessary to arrive at a just decision. It is submitted that it is not a case of total want of evidence since the claimant was examined as PW1 before the Tribunal and he has given oral evidence regarding his injuries. I find considerable force in the submissions of the counsel for the appellant.

The counsel for the insurer fairly submitted that the notional income can be fixed at Rs.6,000/- going by the judgment in Ramachandrappa (supra). It is also contended that the Tribunal cannot be faulted for not relying in the disability certificate since the Doctor who issued the same was not examined.

I have considered the contentions raised by the counsel on either side. On the question of notional income, I am of the opinion that in the light of the decision in Ramachandrappa (supra), a sum of Rs.6,000/- should be taken as the notional income of the claimant. Regarding Ext.A7 disability certificate, it was issued by a Doctor who was an Orthopedic Consultant, who had retired as a Civil Surgeon Grade I from Government service. There is no reason to discard the said evidence merely for the fact that the Doctor was not examined. The certificate states in detail the injuries sustained by the claimant and has assessed the whole body disability as per McBride scale as 12.12 %. The claimant as PW1 has stated in detail about the injuries and the difficulties that he was still suffering and there is no challenge to the said evidence in cross examination. In the above circumstances, I am of the opinion that the appellant is entitled to be compensated for his permanent disability as well.

In the result, the appeal is allowed. The amount awarded towards loss of earning is enhanced from Rs.10,000/- to Rs.24,000/-(6000x4), resulting an additional compensation of Rs.14,000/-(24,000-10,000). A sum of Rs.95,990/- (6000x12x11x12.12%) is awarded under the head compensation for permanent disability. The compensation granted by the Tribunal is thus enhanced by a further sum of Rs.1,09,990/- (Rupees One lakh Nine Thousand Nine Hundred and Ninety only) with interest at 9% per annum on the enhanced compensation from 02.06.2008 till the date of realisation, with proportionate costs. The 3rd respondent shall deposit the additional compensation granted in this appeal along with the interest and proportionate costs, before the Tribunal within two months from the date of receipt of a certified copy of this judgment, after deducting any amount to which the appellant is liable towards balance court fee and legal benefit fund. The disbursement of the compensation to the appellant shall be in accordance with law.