Varghese Vengal v. Aneesh Kumar (Deleted) and M/S Reliance General Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS** **FRIDAY, THE 12[TH] DAY OF AUGUST 2022 / 21ST SRAVANA, 1944** ## **MACA NO. 1329 OF 2017** **OP(MV)No.348/2013 OF ADDITIONAL DISTRICT COURT & MOTOR** **ACCIDENTS CLAIMS TRIBUNAL-III, PATHANAMTHITTA** **A PPELLANT/PETITIONER:** ## **VARGHESE VENGAL,** **S/O. CHERIAN KURIAN, VENGAL MANAPPURATHU HOUSE, NEDCUMPRAM P.O, THIRUVALLA NOW RESIDING AT KANEKATTU HOUSE, KARACKAL P.O, THIRUVALLA.** **BY ADVS. V.V.SHAJI SUSANTH SHAJI** ## **RESPONDENTS/RESPONDENTS:** - ***1 ANEESH KUMAR, S/O. VENUKUMAR, MOONNONNIL LAKSHMI BHAVAN, PERINGARA P.O, THIRUVALLA. (DELETED).** - **RESPONDENT NO 1 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 22/06/2018 IN IA 1887/2018.** - **2 M/S. RELIANCE GENERAL INSURANCE CO.LTD., VISHNU BUILDING, K.P VALLAN ROAD, KADAVANTHARA, KOCHI 682 020.** **BY ADVS. GEORGE CHERIAN (SR.) K.S.SANTHI GEORGE A.CHERIAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON 12.08.2022 DELIVERED THE FOLLOWING:** **MACA NO. 1329 OF 2017** 2 ## **J U D G M E N T** The appellant is the claimant in OP(MV) No.348 of 2013 on the file of the Additional District Judge and Motor Accidents Claims Tribunal-III, Pathanamthitta. He is challenging the award dated 21.01.2017 on the ground of inadequacy of compensation awarded by the Tribunal. 2. The appellant met with a road traffic accident on 10.12.2012. While he was riding his motorcycle, through Cosmos Junction, Pathanamthitta, KL-27/A-5557 motorcycle ridden by the 1[st] respondent knocked him down and he sustained various injuries including fracture of both bones of right leg with common peroneal nerve injury. He suffered permanent disability due to that accident and so, he could not continue his avocation as a driver. 3. The 1[st] respondent was the owner cum rider of the offending motorcycle and the 2[nd] respondent was the Insurer of that vehicle, having valid policy as on the date of **MACA NO. 1329 OF 2017** 3 accident. 4. He approached the Tribunal claiming compensation of Rs.20,00,000/-. No oral evidence was adduced by him. Exts.A1 to A20 were marked from his side in support of his claim. The learned Tribunal, after analysing the facts and evidence, awarded an amount of Rs.5,07,700/- in total, under various heads. Dissatisfied with the compensation awarded, the claimant has come up with this appeal. 5. There is no dispute with respect to the accident, injury and the policy of the vehicle as on the date of accident. 6. The appellant is assailing the impugned award mainly on three grounds. The first ground is that though he claimed medical expenses of Rs.5,00,000/- and produced Ext.A20 series bills for an amount of Rs.3,29,056/-, the Tribunal awarded only Rs.2,68,000/-. According to him, the Tribunal ought to have honoured the medical bills produced by him to award the entire amount covered by the bills. But paragraph 10 of the impugned award says **MACA NO. 1329 OF 2017** 4 that certain bills were not cash bills and certain sums were already computed with the discharge bills. So, after scrutiny, Rs.2,68,000/- was awarded by the Tribunal. But the Tribunal has not given the details of the bills, which were not cash bills and has not specified the duplication of amounts in the discharge bills. When a claimant produces medical bills in support of his claim for medical expenses, the Tribunal has to scrutinise the bills carefully and duplication if any has to be sorted out. Moreover, the Tribunal has to verify the genuineness of the bills produced by the claimant. The claimant has to be awarded the amounts covered by the medical bills, only if it is found genuine. When a particular bill is found not acceptable, it has to find a place in the award itself, with the details of such bills with specific reasons for its rejection. 7. Learned counsel for the respondent-Insurer submitted that some of the medical bills produced by the claimant were not in his name and some of the bills were not cash bills, and so, the Tribunal was right in rejecting **MACA NO. 1329 OF 2017** 5 those bills. 8. In the case on hand, the Tribunal has generally stated that some of the bills were not cash bills and certain sums were already computed along with the discharge bills, without giving the details of the bills. We are at dark regarding which bills were rejected for which reason. Without giving such details, rejection of those bills by the Tribunal could not have been justified. 9. Pending appeal, the claimant filed I.A.Nos.1 & 2 of 2022 to receive additional documents. According to him, the appellant is still suffering from the injuries he had suffered in the accident. On 12.03.2021, he was diagnosed with Cellulitis, which is a serious bacterial skin infection, and the treatment is still continuing. In order to prove that fact and to claim the medical expenses incurred by him during the year 2021, he produced additional documents in I.A.Nos.1 & 2 of 2022. But learned counsel for the Insurer vehemently opposed those petitions and documents stating that the accident occurred in the year 2012 and there is no **MACA NO. 1329 OF 2017** 6 proof of any continued treatment for the appellant after 2013. So the treatment, if any, undergone by the appellant after ten years of the accident cannot be said to have been for any reason connected with the injuries he had suffered in the accident, ten years ago. It is true that no documents are produced by the appellant to show that he was continuing treatment for the injuries he had suffered in the year 2012, till 2021. So, the documents produced by the appellant have to be proved by him with cogent evidence. 10. According to the appellant, Ext.A12 Disability Certificate dated 16.12.2013 issued by the Medical Board of Pushpagiri Medical College Hospital shows his permanent disability as 24%. Ext.A19 Disability Certificate dated 07.10.2014 issued from the General Hospital, Pathanamthitta, will show his permanent disability as 20%. The grievance of the appellant is that the Tribunal without accepting any of these Certificates, reduced his disability and reckoned it as 10%. The reasons stated by the **MACA NO. 1329 OF 2017** 7 Tribunal is that in Ext.A19, it was not stated whether the disabilities stated therein, was whole body disability of the claimant. Going by the decision **Raj Kumar v. Ajay Kumar** , [2010 KHC 5021], the Apex Court held that ‘ _if the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such a Medical Board for assessment of the disability_ .’ In the case on hand there were two Disability Certificates produced by the appellant. Learned Tribunal did not accept none of the Certificates, and reduced the disability without referring the appellant to a Medical Board as directed in **Raj Kumar’s** case cited _(Supra)_ . The procedure adopted by the Tribunal caused severe prejudice to the appellant as he was not afforded an opportunity to prove that the Disability Certificates produced by him were with respect to his whole body. 11. Considering all these facts, this Court is of the **MACA NO. 1329 OF 2017** 8 view that the appellant has to be afforded an opportunity to prove the genuineness of Ext.A20 medical bills, admissibility of the additional documents produced by him in I.A.Nos.1 and 2 of 2022, and also the correctness of the Disability Certificates produced by him before the Tribunal. For that purpose, the case has to be remanded back after setting aside the impugned award dated 21.01.2017. 12. In the result, the award impugned is set aside and the matter is remanded back to Additional District Judge and Motor Accidents Claims Tribunal-III, Pathanamthitta. The appellant is at liberty to adduce fresh evidence to prove the genuineness of Ext.A20 medical bills, Ext.A19 Disability Certificate and also to prove continued treatment with the supporting documents. The respondentInsurer is also at liberty to adduce evidence, if any. 13. Since this being an old case of the year 2013, learned Tribunal has to dispose the same within four months from the date of appearance of the parties before the Tribunal. The parties are directed to appear before the **MACA NO. 1329 OF 2017** 9 Tribunal on 01.09.2022. The appellant can get back the additional documents to produce it before the Tribunal. 14. Registry is directed to transmit the Lower Court Records forthwith to the Tribunal. With the above said direction, this appeal is disposed of. No order as to costs. Sd/- **SOPHY THOMAS JUDGE** DSV/10.08.2022