* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.3480 of 2009
%02.06.2014
Between:
Bathula Venkata Ramana, Rep. by Sri Venkatesu ....
Appellant AND APSRTC and another ….
Respondents ! Counsel for Appellant : Sri V. R. Reddy Kovvuri ^ Counsel for Respondents : ---
< Gist:
> Head Note:
? Cases referred:
1) (2011) 13 Supreme Court Cases 236 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.3480 of 2009
Judgment:
Challenge in this appeal is Award in MVOP No.779 of 2000 passed by MACT-cum-I Additional District Judge, Cuddapah (for short “the Tribunal”). The appellant is the claimant questioning the quantum of compensation as inadequate and grossly low.
2) The factual matrix of the case is thus:
a) The claimant—Bathula Venkata Ramana, minor boy is a resident of Thangedupalli village, Cuddapah District. His case is that on 30-10-1997 at about 7.45 AM when he was standing nearby a bullock-cart near a road turning at Thangedupalli village, a RTC bus bearing No.AP 09 6905 being driven by its driver in a rash and negligent manner and at high speed and dashed against him. As a result, the claimant received multiple injuries which are grievous in nature. Immediately he was provided first aid by Dr.Srivani at Badvel and shifted to Government Hospital, Cuddapah and later shifted to Dr.Balireddy Hospital, Cuddapah for better treatment. Later he was shifted to Apollo Nursing Home, Badvel. The father of the petitioner spent Rs.1,20,000/- towards medicines, treatment and other incidental charges. The petitioner suffered permanent disability in his right leg. On all these pleas he filed MVOP No.799 of 2000 against respondents 1 and 2 who are the owner and driver of the offending bus and claimed Rs.2,50,000/- as compensation under different heads.
b) Respondent No.1/APSRTC filed counter and contested the OP denying all the material averments made in the petition and urged to put the claimant to strict proof of the same.
c) During trial PWs.1 and 2 were examined and Exs.A1 to A7 were marked on behalf of the claimant. RW1 was examined on behalf of the respondents.
d) A perusal of the award would show that issue No.1 is concerned, the Tribunal considering the oral evidence of PWs.1 and 2 coupled with documentary evidence Exs.A1—FIR and A2—charge sheet, held that fault lies with the driver of the bus.
a) Medicines
b) Damages
c) Pain and suffering
e) Issue No.2, which relates to quantum of compensation is concerned, the Tribunal considering the evidence of PW2— injured, coupled with Ex.A3—wound certificate, Ex.A4— disability certificate and A5—medical bills granted compensation of Rs.65,000/- with costs and interest @ 9% per annum under different heads as follows:
Hence, the appeal by the claimant on the ground that compensation is inadequate and unjust.
3) Heard arguments of learned counsel for appellant Sri V.R.Reddy Kovvuri. Appeal against R2/driver of the bus was dismissed for default. No representation for respondent No.1/APSRTC.
4) Criticising the compensation as too low and unjust, learned counsel for the appellant firstly argued that the claimant suffered fracture of his right Tibia and Fibula at a very tender age and suffered consequent disability but the Tribunal granted only a meager amount of Rs.5,000/- towards pain and suffering and it needs to be enhanced.
Secondly, learned counsel argued that though the claimant underwent treatment in different hospitals and incurred heavy medical expenditure and produced medical prescriptions and bills under Ex.A5 and A6, the Tribunal granted only a meager amount of Rs.10,000/- towards medical expenditure. Further, the Tribunal has not granted any compensation for extra nourishment charges and transportation charges.
Thirdly, learned counsel argued that the claimant suffered 45% of permanent disability and his future prospects are marred. Instead of granting compensation under multiplier system, the Tribunal granted a meager lumpsum amount of Rs.50,000/-. He thus prayed to allow the appeal.
5) In the light of the above arguments, the point for determination is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs enhancement?”
6) POINT:
The accident, involvement of APSRTC bus and claimant suffering injuries are not in dispute. The Tribunal, considering the evidence on record has held that the bus driver was responsible for the accident against which no appeal is preferred by the APSRTC. Hence, the only point for consideration in this appeal is whether the compensation is adequate or not.
The first argument is that the Tribunal granted meager amount towards pain and suffering for the fracture injury. I find some force in this argument. Admittedly, the accident was occurred on 30.10.1997 and the claimant was a minor boy of about 14 years of age by then. As per Ex.A3-wound certificate issued by the Government hospital, Cuddapah, the claimant suffered fracture of right Tibia and Fibula at his tender age. So he must have experienced excruciating pain and suffering by that age. In that context, Rs.5,000/- is a meager amount towards pain and suffering. Hence, the compensation is enhanced to Rs.15,000/- in this regard considering the same as just and reasonable.
7) The second argument is that the Tribunal granted only Rs.10,000/- as against heavy medical expenditure. Further, it has not granted compensation for incidental expenses. In this context, a perusal of Ex.A6 bills would show that the claimant incurred about Rs.19,656/- towards medical expenditure. The Tribunal granted only Rs.10,000/- on the ground that no corresponding prescriptions are filed for the bills. I am unable to countenance the said observation. Though the claimant has not filed the corresponding prescriptions, still, having regard to the fact that he suffered fracture to his right leg and underwent treatment in different hospitals, an expenditure of Rs.19,000/- as incurred by him can not be said to be an exorbitant one. Hence, the medical expenditure is enhanced to Rs.19,000/- from Rs.10,000/-. Similarly having regard to the fact that the claimant underwent prolonged treatment, he is awarded Rs.6,000/- towards extra nourishment, attendant and transportation charges.
8) The next argument is that the disability was not properly compensated. It may be noted that as per Ex.A4 disability certificate issued by the medical board, Cuddapah, the claimant suffered 45% disability; whereas as per Ex.A5 disability certificate issued by medical board, he suffered 60% disability. Be that as it may, as rightly observed by the Tribunal the claimant has not examined the doctor who issued disability certificates to speak about the nature of disability and its affect on his day to day functions and its adverse affect on his future earning capacity. Probably, due to the lack of said crucial evidence, the Tribunal, it appears granted a lumpsum amount of Rs.50,000/- for the disability.
The role of a Tribunal in assessing the compensation for disability is well delineated in the decision reported in Ramachandrappa v. Manager, Royal Sundaram Alliance
[1]
Insurance Company Limited “Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement.
(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.”
a) So, as per the above decision, the Tribunal has to first of all ascertain the percentage of permanent disability and basing on the same, it has to ascertain its adverse impact on the earning power of the victim i.e., it has to ascertain the percentage of functional disability to award just compensation. In this case, there is no cogent evidence regarding the nature and extent of permanent disability. However, since the disability certificates were issued by medical board, it can be accepted that the claimant has suffered some permanent disability. The claimant’s father is a mason by profession and if the claimant also takes up the said profession in future, certainly his disability will adversely affect to some extent on his earning capacity. Considering these aspects, the compensation is enhanced from Rs.50,000/- to Rs.75,000/-.
9) Thus, the total compensation payable to the claimant under different heads can be detailed as below:
i) Pain and suffering -
Rs.15,000/-
ii) Medical expenditure - Rs.19,000/-
iii) Extra nourishment, attendant and transportation charges - Rs. 6,000/-
iv) Loss of earning capacity due to disability - Rs.75,000/-
Total - Rs.1,15,000/-
So, the compensation is enhanced by Rs.50,000/-.
10) In the result, the appeal is partly allowed and ordered as follows:
i) Compensation is enhanced by Rs.50,000/- with proportionate costs. The enhanced compensation shall carry interest at 7.5% per annum from the date of O.P. till the date of realisation.
ii) The respondents are directed to deposit the compensation amount within one month from the date of this judgment failing which execution can be taken out against them.
iii) No costs in the appeal.
U.DURGA PRASAD RAO, J. Dt. 02-06-2014
Note: L.R.Copy to be marked: Yes/No
Ksm
[1] (2011) 13 Supreme Court Cases 236