PONNU Vs. ARUN KUMAR

JUDGEMENT

(1.) 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 and 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.

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

(3.) 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.