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PETITIONER: MUTHAIAH SEKHAR

       Vs.

RESPONDENT: NESAMONY TPT. CORPORATION LTD. & ANR.

DATE OF JUDGMENT:       01/09/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:            [WITH CIVIL APPEAL NO. 13385 OF 1996]                       J U D G M E N T K. Venkataswami, J. Civil Appeal No. 13391/86:      Aggrieved  by  the  dismissal  of  his  appeal  at  the admission  stage,   the  appellant,  who  sustained  serious injuries in a motor accident that took place on 10.8.84, has preferred this appeal.      The  appellant  along  with  his  mother,  brother  and sister-in-law were  travelling in  a taxi  from Nagarcoil to Trivandrum on  10.8.84. A  bus, belonging to the respondent- Corporation  coming  from  the  opposite  direction,  dashed against the  taxi while  trying to  overtake a bullock cart, resulting in  the death  of the  Driver and  the appellant’s mother.  The   other  occupants   including  the   appellant sustained injuries.  The appellant  moved the Motor Accident Claims Tribunal, Trivandrum, Claiming a sum of Rs.5,06,091/- as compensation.  At the time of accident, he was aged about 25 years  and after  practising as  a Lawyer  for some time, applied for  and secured a seat in the Madras University for pursuing his M.L. course. He sustained in all seven injuries including dislocation  of right  hip, head injury and injury to the  left eye  and ear. Initially, he was admitted to the Medical college  Hospital,  Trivandrum,  for  treatment  and after discharged  therefrom, he  was admitted  again to  the Madras General  Hospital for  further treatment.  It was the claim of  the appellant  that he  was to  be treated for the left carotid  cavernous fistula;  a condition which required the treatment  of balloon  embolisation.  According  to  the appellant, the said treatment was not available in India and his brother, who was a practising Doctor at New York, United States, asked  the appellant to go over there for treatment. Accordingly, he  went to  the  United  States  and  had  his treatment there.  The Head of the Neurosurgery Department of Trivandrum  Medical   College  Hospital  gave  a  Disability Certificate assessing loss of 60% vision in the left eye and 50% hearing in the left ear. He also opined that dislocation of the  right hip  was permanent. Bringing all these factors in his claim petition, he made a claim of Rs.5,06,091/-.      The Tribunal was of the view that the claim towards the

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travelling expenses  to New York and Medical expenses in the Hospital at New York and medical expenses in the Hospital at New York  and Medical  expenses in the Hospital at New York, cannot be  allowed as  there was  no record to show that the facilities were  not available  in India for such treatment. The Tribunal  after referring  to the Disability Certificate given by  the Head  of the Neurosurgery Department and other factors, awarded the compensation in a sum of Rs.1,76,000/-.      Aggrieved by  the meager amount of compensation awarded by the  Tribunal, the  appellant preferred  an appeal to the Kerala High  Court in  M.F.A. No. 712/90. Unfortunately, the appellant’s appeal  came up  for admission  along  with  the appeals filed by the other injured occupants of the taxi and the legal representatives of the deceased person. A Division Bench of  the Kerala  High Court summarily dismissed all the appeals at  the  admission  stage.  Hence,  this  appeal  by special leave.      Learned senior  counsel appearing  for  the  appellant, placing reliance on the disability Certificate issued by the Head of  the Neurosurgery  Department and the letter written by a  Doctor in  New York to the U.S. Consulate at Madras to enable the appellant to get necessary visa for his treatment at United  States and the oral evidence given by the Doctor, who gave  the Disability  Certificate,  submitted  that  the findings of the Division Bench cannot be supported According to the  learned senior counsel, the appellant has discharged the burden  to prove  his case  that the treatment he had in New York  was not  available in India at that time and there is no  iota of  evidence on  the side  of the respondents to demolish the  claim of  the appellant in this regard. In any event, according  to the  learned senior counsel, it was not for the  respondent to  suggest what  type of  treatment the injured has  to  undergo.  It  was  further  contended  that neither the  Tribunal nor the High Court had any material to disbelieve the  evidence produced  by the  appellant. In the absence of  any  positive  evidence  from  he  side  of  the respondent-Corporation, it was the contention of the learned senior counsel  for the appellant that the High Court should have allowed the compensation as claimed by the appellant.      Contending   contrary,    learned   counsel   for   the respondent-corporation submitted  that the  High  Court  has correctly appreciated  the evidence  and the  High Court has factually found  that the Award of Rs. 1,76,000/- was on the higher side.  He also  invited our  attention  to  the  oral evidence of the Doctor, who gave the Disability Certificate.      After going  through the  Award of the Tribunal and the judgment of  the High  Court, we  are of  the view  that the appellant was  not given  the just compensation on the facts of the  case, to  which he  was entitled  to. The Disability Certificate was  not totally accepted by the High Court only on the ground that the Doctor, who gave the Certificate, has no authority  to  give  such  a  Disability  Certificate  in respect of vision in the left eye and loss of hearing in the left ear.  We have  perused he  evidence of  the Doctor, who gave the  Disability Certificate, and he has asserted in the evidence as follows:-      " Before  I issued this certificate      Ext.  A22   I  saw  the  report  of      neurologist  of   the  M.C.H.   The      respective  departments  will  send      their  reports.   I  referred   the      patient to  opthalmic hospital  and      ENT specialist, M.C.H., Trivandrum.      ENT must  have seen  it. Audeometry      was done  to him. I did not examine

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    his     vision.     Ophthalmologist      examined his  vision. He had lot of      problem. Mainly Deplopia. Regarding      the nature  of  deplopea  only  the      Ophthalmic  surgeon   can   explain      Audiometry was  done and  a  report      was given by ENT department. when I      treat a patient, I alone will issue      a  disability   certificate.  Other      departments  will   issue   reports      about the treatment made by them. I      have  not   seen   any   disability      certificate  issued  by  the  other      departments. As head to he treating      unit  the   Neurologist  can  issue      disability certificate. There is in      60% loss  of hearing  in  one  ear.      With respect  to vision also I have      seen  the   report.  Your   ar  not      competent  to  issue  a  disability      certificate regarding  eye and  ear      (Q) Not  correct (ANs.) Orthopaedic      surgeons  are  competent  to  issue      disability certificate  in  respect      of every  system of the body on the      basis of  the MC  brid  scale.  His      left hip  is  affected.  He  had  a      damage to optical nerve of the left      side. I mean the 2nd cranial nerve.      That was  not mentioned in the loss      certificate. when  there is a total      loss, each  of the reasons need not      be mentioned.  I say  you have  not      mentioned the reasons for assessing      50% disability  (Q). I  have stated      in the  certificate the  reasons. I      say without  getting  reports  from      the  other   departments  you  have      issued  the   certificate  (Q)   No      (Anser).      On a  fair reading  of the evidence, we are of the view that the  High Court  was  not  justified  in  doubting  the correctness of the Disability Certificate. Further, it is on record that  the treatment  by balloon  embolisation of  the fistual was not available in India.      The Assistant Professor Clinical Neurosurgery, New York University School  of Medicine,  in his  letter addressed to the U.S. Consulate, Madras, has stated thus:-      " Mr. Muthaiah Sekhar is a 27-year-      old  Asian   Indian  male  who  was      involved  in   a  major  automobile      accident in  India in August, 1984.      His  mother   was  killed  in  this      accident and  Mr.  Muthaiah  Sekhar      himself     sustained      multiple      injuries.  He   presented  to   the      Government  General   Hospital   in      Madras with  head injury, decreased      vision and  bulging  of  left  eye,      Examination    revealed    markedly      decreased visual  acuity, pulsating      proptosis and  a bruit  in the left      eye. A  cerebral angiogram  clearly      showed the  presence of a carotico-      cavernous fistula.

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    The  modern   treatment  for   this      condition is intra-arterial balloon      embolization   of    the   fistual,      sparing the  carotid  artery.  This      procedure  is   not  available   in      India.  the   only  procedure  they      could offer  him in  Madras  was  a      carotid ligation,  which apart from      not being  curative,  is  dangerous      and    can     cause     disastrous      complications such as stroke.      I have  reviewed  all  his  medical      records and  angiograms from madras      and strongly  feel that  he  should      come to  the United  States to have      the  balloon  embolization.  I  can      make all  the arrangements for this      procedure to  be done  at New  York      University  Medical   Center.   The      patient’s  brother,   Dr.  Muthaiah      Sukumaran,    is    a    practicing      physician  in   New  York   and  is      willing to bear all expenses.      I would like to request that a visa      be  issued   to  him   as  soon  as      possible   before    the    patient      develops      an       irreversible      complication  such   as  blindness,      stroke, cerebral hemorrhage or even      death."      This was  not given  the due  importance  both  by  the tribunal and by the High Court in rejecting the claim of the appellant for  travelling to  New York and expenses incurred for his treatment at New York. As rightly pointed out by the learned senior  counsel for  the appellant,  no attempt  was made by  the Respondent-Corporation to produce evidence oral or documentary to the effect that the facility was available in India.  Even otherwise,  the view taken by the High Court that the  appellant never  informed the respondent about his going to  New York  for treatment  and he  cannot burden the Corporation with  the  expenses  for  treatment  in  foreign country, is  not  correct.  Nothing  prevented  the  injured person from  taking the best available medical facilities to recover from  the disabilities  caused by the tortfeasor. We have already noticed that the appellant was 25 years old and was a student of M.L. Course at the time of the accident and he could  not  complete  the  M.L.  Course  because  of  the accident and  permanent disability  he has  sustained in the accident. The  Tribunal has  found that he would have earned at least  Rs. 1,000/-  a month as a practioner in law at the beginning stage.      We can  usefully  refer  at  this  stage  to  a  recent judgment of this Court in Shashendra Lahri Vs. UNICEF & Ors. [(1197) 11  SCC 446].  In that case, a 17 year old boy and a student of  B. Com.,  suffered multiple  injuries in a motor accident which  occurred on  6.1.77. He  suffered  permanent disability of  shortening his  right leg by three inches. It was also  noticed that  the injured thereafter continued his education and  has a  good academic  career. The Tribunal in that case  awarded a sum of Rs. 33,000/- only as against the claim of  Rs. 6,  00,000/-  .  On  appeal,  the  High  Court enhanced the amount to Rs. 58, 000/-. This Court, on further appeal, was of the view that having regard to the age of the appellant at  the time of accident and the prospects in view of his  good academic  career, the  adverse  effect  of  his

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permanent disability  as a  result of  the motor accident on his future prospects, is much more than that assessed by the High Court.  On that  basis, this court awarded  further sum of Rs.  4 lakhs  in addition  to that  awarded by  the  High Court.                     [Emphasis supplied]      Applying the above principle to the facts of this case, we find  no difficulty  in awarding  a sum of Rs. 3 lakhs in addition to  that awarded  by the  Tribunal confirmed by the High Court.  This enhanced  amount of compensation will bear interest at  the rate of 12% p.a. from the date of the claim petition till the date of payment.      The appeal is accordingly allowed. No costs.      Civil Appeal No. 13385/96:      This appeal  is preferred  against the  order in Review Petition in  M.F.A. No.  712/90. In  view of the disposal of the appeal  against the  M.F.A. No. 712/90, this appeal will also stand  disposed of  accordingly with  no  order  as  to costs.