# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 26[TH] DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943 MACA NO. 1867 OF 2012**
**AGAINST THE AWARDDATED 3.1.2012 IN OPMV 1062/2008 OF MOTOR**
**ACCIDENT CLAIMS TRIBUNAL, MANJERI**
## **APPELLANT/PETITIONER**
ALAIVI HAJI E.K AGED 55 YEARS S/O.KUNJUMOIDEEN, ILLIKKAL HOUSE, P.O.KARAKUNNU MANJERI VIA, MALAPPURAM DISTRICT. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.PRINCY XAVIER SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN
## **RESPONDENTS/RESPONDENTS**
1 SHOUKKATHALI S/O.ABDULLA,AGE NOT KNOWN, PUTHANPEEDIYAKKAL HOUSE, P.O.PATHAPRIYAM, VAYANASALA, MOOCHIKKAL, MANJERI VIA, MALAPPURAM DISTRICT, PIN-676123. 2 ABDUL AZEEZ, AGE NOT KNOWN S/O.AHMED KUTTY, THARAKAN HOUSE, P.O.THRIKALANGODE, MANJERI VIA, MALAPPURAM DISTRICT, PIN-676505. 3 THE ORIENTAL INSURANCE CO. LTD JASEELA COMPLEX MANJERI-676121. BY ADV SRI.A.R.GEORGE FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## _**A. BADHARUDEEN, J.**_
================================ _M.A.C.A No.1867 of 2012_ ================================ _Dated this the 26[th] day of October, 2021_
## _**J U D G M E N T**_
The award in O.P (MV) No.1062 of 2008 on the file of the Motor Accidents Claims Tribunal, Manjeri, dated 03.01.2012, is under challenge in this appeal. The appellant is the petitioner and the respondents before the Tribunal are the respondents herein.
2. The brief facts of the case :
The petitioner, who met with an accident on 16.09.2007 at about 7.45 p.m on the road at Karakunnu, approached the Tribunal and claimed Rs.3 lakh as compensation.
3. The Tribunal, after examining the petitioner as PW1 and marking Exts.A1 to A6 series and Ext.X1, awarded compensation to the tune of Rs.28,026/-. The petitioner, who is aggrieved by the quantum, is now before this Court.
4. Firstly, the learned counsel for the appellant submitted that though the petitioner produced medical bills to the tune of
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Rs.49,066/- as Ext.A6 series, the Tribunal not accepted the same on the finding that the petitioner suppressed the treatment records. It was further observed by the Tribunal that the petitioner had been undergoing treatment for diabetics. Thus the learned counsel for the appellant urged to grant Rs.49,066/- as such and in support of his contention, he had given emphasis to the documents of treatment produced along with this appeal showing the period. Going by the additional documents produced, it could be noted that the petitioner was treated as inpatient for 5 days from 17.09.2007 to 22.09.2007 for abrasions over the left hand and basifrontal contusion with thin SDH. Traumatic Subarachnoid Hemorrhage was found along with diabetics type 2.
5. The learned counsel for the insurance company pointed out the fact that only minor infirmities were suffered by the appellant in consequence of the accident and the appellant, being a person on treatment for diabetics, produced medical bills for the medicines purchased for his treatment for the pre-existing ailments also. Therefore, the medical bills as such cannot be taken into consideration. Now the crucial question to be decided is **whether**
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**an injured person is entitled to get medical bills incurred by him for the treatment of the pre-existing diseases after the accident or else the amount shall be confined to the medical expenses incurred for the treatment in consequence of the accident?**
6. Before answering this query, it is worthwhile to mention that, as per Ext.A6 series medical bills nobody could get the details with regard to the purchase of medicines as no documents list appended therein. Though medical bills were produced contending that the same would come to Rs.49,066/-, the Tribunal or the appellate court, as the case may be, would do the work of the advocate clerk to calculate the heavy bundle of bills to arrive at what actually is the amount covered by the medical bills. Such procedure is time consuming and as such cannot be permitted. In fact, the appellant/petitioner ought to have produced a documents list showing the calculation in detail so as to get an easy understanding
of the claim, by the Tribunal and by the appellate court at a glimpse. It is interesting to note further that though the medical bills were produced without a list and other details, the Tribunal accepted the same without returning the same for re-presentation, after curing the
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defects. The claim based on the bills was rejected by the Tribunal holding that the Tribunal could not separate “grain” from the “chaff” and pointing out non production of treatment records supporting the medical bills.
7. Though the task is difficult to peruse the voluminous medical bills produced as Ext.A6 series, a bare perusal of the same would convince that majority of the bills are pertaining to treatment for the pre-existing diseases, though some sort of medicines purchased by the appellant would be as part of treatment to the post trauma events. Since the medical bills could not be traced or to be read in segregation to arrive at what actually is the amount paid for the treatment of the post trauma events, this Court also not in a position to assess what actually is the amount entitled by the appellant as part of treatment in connection with the accident. **In this context, it is held that while claiming medical bills an injured person or the legal-heirs, as the case may be, cannot claim expenses incurred for the purpose of treating pre-existing diseases unless there is convincing evidence to find that preworsened as a result of the accident** . **existing disease got**
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Therefore, I am to hold that the petitioner herein, who failed to establish the required essentials and also failed to segregate the medical expenses incurred in connection with the accident, cannot claim Rs.49,066/- in this case, when nothing before this Court to hold that the amount would come to Rs.49,066/-. However, fact remains is that the petitioner underwent treatment in consequence of the accident for the injuries. As I have already mentioned, though the bills are not traceable in severance, some expenses do form part of the treatment. Considering the above aspect in mind, I am of the view that **Rs.10,000/- more** under the head **medical expenses** can be granted in the interest of justice.
8. Here the appellant sustained 2% disability and the Tribunal calculated the same by fixing the monthly income of the appellant as Rs.3,000/-. It is submitted by the learned counsel for the appellant that the same required to be increased as Rs.6,000/relying on the decisions rendered by the Apex Court in [(2011) 13 SCC 236], _**Ramachandrappa v. Manager, Royal Sundaram Alliance**_ and [AIR 2014 SC 1052 : (2014) 2 SCC 735], _**Syed Sadiq and others v. Divisional Manager, United India Insurance**_
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_**Company Ltd.**_ The learned counsel for the insurance company also not disputed fixation of monthly income at Rs.6,000/- for calculating loss of earnings as well as loss of disability. Thus **loss of earnings** granted by the Tribunal for 3 months is recalculated as : Rs.6000 X 3 = Rs.18,000/-, out of which Rs.9,000/- was granted by the Tribunal and the balance **Rs.9,000/-** is granted as **additional** compensation.
9. **Loss of disability** of the appellant also to be recalculated fixing Rs.6,000/- as the monthly income as follows:
6000 X 12 X 11 X 2% = Rs.15,840/-, out of which Rs.7,776/was granted by the Tribunal and the balance **Rs.8,064/-** is granted as **additional** compensation.
10. Coming to the other heads, only Rs.5,000/- is granted by the Tribunal under the head pain and suffering and no amount under the head loss of amenities is granted. Therefore, I am inclined to grant **Rs.10,000/** - more under the head pain and suffering and **Rs.10,000/-** granted under the head **loss of amenities** .
In the result, the appeal is allowed in part. The award passed by the Tribunal to the tune of Rs.28,026/- is enhanced to Rs.75,090/-
(Rupees Seventy five thousand ninety only) and hence modified
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award is passed with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant/petitioner is at liberty to release the same on deposit.
_Sd/-_
## _**(A. BADHARUDEEN, JUDGE)**_
_rtr/_
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## **A P P E N D I X**
## APPELLANT'S EXHIBITS
ANNEXURE-A1: THE ORIGINAL DISCHARGE CARD SHOWING THAT THE APPELLANT/PETITIONER WAS ADMITTED TO THE MALABAR INSTITUTE OF MEDICAL SCIENCES HOSPITAL, KOZHIKODE ON 17.09.2007 AND DISCHARGED ON 22.09.2007.
ANNEXURE-A2: THE ORIGINAL DISCHARGE CARD SHOWING THAT THE APPELLANT/PETITIONER WAS ADMITTED TO THE MALABAR INSTITUTE OF MEDICAL SCIENCES HOSPITAL, KOZHIKODE ON 9.10.2007 AND DISCHARGED ON 18.10.2007.
ANNEXURE-A3: THE ORIGINAL DISCHARGE CARD SHOWING THAT THE APPELLANT/PETITIONER WAS ADMITTED TO THE KORAMBAYIL HOSPITAL & DIAGNOSTIC CENTRE PVT. LTD., MANJERI ON 15.12.07 AND DISCHARGED ON 17.12.07.
ANNEXURE-A4: THE ORIGINAL DISCHARGE CARD SHOWING THAT THE APPELLANT/PETITIONER WAS ADMITTED TO THE MALABAR INSTITUTE OF MEDICAL SCIENCES HOSPITAL, KOZHIKODE ON 1712.2007 AND DISCHARGED ON 21.12.2007.
ANNEXURE-A5: THE ORIGINAL DISCHARGE CARD SHOWING THAT THE APPELLANT/PETITIONER WAS ADMITTED TO THE KORAMBAYIL HOSPITAL & DIAGNOSTIC CENTRE PVT. LTD., MANJERI ON 17.2.2008 AND DISCHARGED ON 20.02.2008.
ANNEXURE-A6: THE ATTESTED COPY OF THE TREATMENT CARD AT THE SREE CHITRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM.
