NATIONAL INSURANCE CO. LTD Vs. RAZIQUE AHMED

JUDGEMENT

(1.) THIS appeal is preferred against the Judgment and Award dt.27.3.2008 passed by the learned Additional Member, Motor Accident Claims Tribunal, Akola in M.A.C.P. No.203 of 2003.

(2.) THE facts, briefly stated, are as under: That the claimant (respondent) had claimed a sum of Rs.4,00,000/ - on account of 20 % permanent disability occurred to him as a result of motor vehicle accident dt.10.10.2002. According to the claimant, while he was proceeding towards Yeoda in an auto rickshaw bearing registration no.MH -30 E 809, the offending motor vehicle i.e. truck bearing registration no.MP -07 G -3056 coming from the direction of Daryapur in a zig -zac manner, driven rashly and negligently turned turtle and gave severe dash to the auto rickshaw, which turned turtle. The passengers proceedings by the auto rickshaw suffered severe injuries and the claimant suffered severe fracture injuries to both shaft femurs. The claimant also contended that the driver of the truck was prosecuted for the offence punishable under Sections 279 and 337 of the Indian Penal Code which was registered as crime no.173 of 2002 by the local Police Station. At the time of accident, the claimant was aged about 19 years and in a very good health. He was driving auto rickshaw and earning a sum of Rs.5,000/ - p.m. It is further case of the claimant that he had spent a sum of Rs.40,000/ - towards medical treatment, which is still continuing as he is unable to walk properly and also unable to do usual work. The learned Tribunal held that the claimant had received fracture injuries as a result of motor vehicle accident which occurred on 10.10.2002 because of rash and negligent driving of Truck No.MH -07 G -3056. The Tribunal also found that the claimant has suffered permanent disability of 20 %. Thus, the Tribunal, considering the income of the claimant as an auto rickshaw driver, nature and extent of permanent disability as also non -pecuniary damages and expenses of medical treatment including expenses for medicines, granted compensation as follows:

(3.) IN the present case, it does appear from the record that though the claimant had claimed a sum of Rs.40,000/ - for treatment of both the legs because of fracture of shaft femurs and also the fact that iron rods had to be inserted in both his legs, one cannot ignore the fact that treating doctor was examined on behalf of the claimant and Dr.Rahemankhan Kalekhan, Orthopedic Surgeon deposed before the Tribunal that he had charged a sum of Rs.20,000/ - to Rs.22,000/ - for such operation. The doctor described the injury to the claimant as lateral communated sharp fracture, sharp femurs. The doctor also deposed that the patient was operated for the same. The operation was described as intra medulary inter locking nailing and the patient was advised strict bed rest for four months as he had suffered fracture of thigh bones of both the legs. Again, according to the doctor, after the patient was discharged on 3.11.2007, he was admitted again for removal of implants and at that time, he had charged a sum of Rs.9,350/ -. The doctor was also cross -examined at length in respect of medical treatment given to the patient and the doctor deposed that he had issued Disability Certificate on the basis of fact that the patient was having 1) Quadriceps muscles (shrinking of muscles), 2) bilateral painful hip, 3) restricted movements of knee and 4) shortening of bone. He advised to the patient for removal of implants after complete reunion of joints or after two years. Looking to the evidence of doctor, therefore, the claim of the patient for operation in the sum of Rs.20,000/ - for undergoing operation as described by the doctor cannot be considered as exorbitant or excessive claim, particularly when the Discharge Card also mentions the nature of diagnosis as bilateral fracture shaft with advice of implant removal.