Sekhar Vs. Nesamony TPT. Corporation Ltd. & Anr  INSC 445 (1
A.P. Misra K. Venkataswami, J.
CIVIL APPEAL NO. 13385 OF 1996]
Appeal No. 13391/86:
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.
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.
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/-.
Tribunal was of the view that the claim towards the 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.
after referring to the Disability Certificate given by the Head of the
Neurosurgery Department and other factors, awarded the compensation in a sum of
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.
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.
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
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.
must have seen it. Audeometry was done to him. I did not examine 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.
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
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).
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.
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.
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-
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.
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.
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.
usefully refer at this stage to a recent [(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 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.
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.
appeal is accordingly allowed. No costs.
Appeal No. 13385/96:
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.