* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.2681 of 2009
%05.06.2014
Between:
C.H. Prabhakar. ....
Appellant AND The APSRTC, Rep by its Managing Director, Hyderabad and another. ….
Respondents ! Counsel for Appellant : Sri K. Jagathpal Reddy ^ Counsel for Respondents : Sri C. Sunil Kumar Reddy < Gist:
> Head Note:
? Cases referred:
1) 2003 (4) ALD 183 (DB)
2) 2007 (1) ALT 648
3) (2011) 13 Supreme Court Cases 236 HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
M.A.C.M.A. No.2681 of 2009
JUDGMENT:
Challenging the award dated 09.04.2009 passed in O.P.No.1675 of 2007 by the Chairman, MACT-cum-V Additional Metropolitan Sessions Judge, City Criminal Courts, at Hyderabad (for short “the Tribunal), the claimant preferred the instant appeal.
2) The factual matrix of the case is thus:
a) The case of the claimant is that on 31.08.2007, he and his friend B. Raju were proceeding on Hero Honda Passion motorcycle bearing No. AP 23 C 1352 being driven by claimant from Pulkal village towards Joggipet and when they reached Saibaba Temple in between Nanded and Sanga Reddy, one RTC bus bearing No. AP 11 Z 584 which was coming from Joggipet side towards Sanga Reddy, being driven by its driver in a rash and negligent manner at high speed and dashed the motorcycle. Due to which the rider and pillion rider fell down. Claimant received fracture to his right femur, head injury and laceration to both hands and disfigurement of forehead and abrasion on stomach and other multiple injuries throughout the body. Immediately, the claimant was shifted to Gandhi Hospital and treated. Due to the said fractures and injuries, his movements were restricted and he suffered disability. On these pleas, the claimant filed OP No.1675 of 2007 against respondents 1 and 2/APSRTC and claimed Rs.2,00,000/- as compensation under different heads mentioned in the OP.
b) Respondents filed counter and denied the material averments made in the petition and urged to put the claimant in strict proof of the same. Respondents denied the age, income, avocation and the alleged physical disability of the claimant and contended that the compensation claimed is excessive and thus prayed for dismissal of the OP.
c) During trial P.Ws.1 and 2 were examined and Exs.A1 to A10 were marked on behalf of the claimant. No oral or documentary evidence was adduced on behalf of respondents.
d) A perusal of the award shows that having regard to the oral evidence of P.W.1—the complainant-cum-injured coupled with Ex.A1-FIR and Ex.A2-charge sheet, the Tribunal held that the accident was occurred due to the rash and negligent driving by the driver of the offending bus.
e) Issue No.2 which relates to compensation is concerned, the Tribunal awarded compensation of Rs.41,000/- with interest at 7% per annum from the date of O.P till the date of realization as follows:
i) Pain and Suffering - Rs.25,000/-
ii) Incidental Expenses - Rs.5,000/-
iii) Loss of amenities due to disability - Rs.5,000/-
iv) Loss of past earnings for two months - Rs.6,000/-
Hence, the appeal by claimant on the ground of inadequacy of compensation.
3) Heard arguments of Sri Kasireddy Jagathpal Reddy, learned counsel for appellant/claimant and Sri Sunil Kumar Reddy, learned counsel for respondents.
4 a) Challenging the compensation granted by the Tribunal as inadequate, learned counsel for the appellant firstly argued that in spite of the fact that the claimant suffered grievous fracture injuries and underwent treatment, the Tribunal did not grant any amount towards medical expenditure. He submitted that a reasonable amount may be awarded as medical expenditure.
b) Secondly, learned counsel argued that the claimant needs removal of plates and screws inserted in his right leg for which he has to incur medical expenditure of Rs.18,000/- and odd as can be seen from Ex.A8 estimate. However, the Tribunal rejected the said expenditure on an erroneous observation that no Doctor who issued Ex.A8 was examined and further the claimant can get removal of the implants in the same hospital i.e. Gandhi hospital at free of cost. Learned counsel argued that it is the prerogative of the patient to choose a suitable hospital for getting the treatment and the Tribunal cannot drive him to a Government hospital or a particular hospital on the observation that treatment will be free or in expensive in that hospital.
c) Thirdly, learned counsel would argue that the Tribunal has not granted any compensation for transportation charges and extra nourishment charges.
d) Fourthly, learned counsel would argue that as per the evidence of PW2, the claimant suffered 70% disability in his right lower limb and this disability adversely affected his laundry business and also his cable operator business and therefore he deserves suitable compensation in this regard. However, Tribunal failed to grant just compensation and awarded only Rs.5,000/- on the observation that PW2 exaggerated the disability and the petitioner might have sustained only some disability. Learned counsel argued that though PW2 was not the doctor who treated the claimant, still on clinical and radiological examination, he found that the claimant suffered disability of 70% partial and permanent. The Tribunal, without any cogent reason, rejected his evidence on the observation that he exaggerated the percentage of disability. Learned counsel relied upon the following decisions on the point that any qualified doctor on clinical examination of the patient can assess the percentage of disability and he is not necessarily to be a treatment doctor.
[1]
(i) Charan Singh v. G. Vittal Reddy and another
(ii) Syed Saleem and others v. Abdul Shukur and
[2]
another He thus prayed to enhance the compensation by allowing the appeal.
5 a) Per contra, learned counsel for the respondent/APSRTC firstly argued that there was no fault of the bus driver and the accident occurred due to the fault of the claimant himself and therefore, in the first instance, he is not entitled to the compensation.
b) Secondly, he argued that even assuming that the accident was occurred due to the fault of bus driver, compensation awarded by the Tribunal under different heads was just and reasonable and there is no need to enhance the same in the appeal.
c) Thirdly, he argued that the appellant does not deserve any medical expenditure as contended because free treatment was provided to him in Gandhi medical hospital and further he did not produce any medical bills to show that he purchased medicines in medical shops. Hence, the Tribunal rightly did not grant any medical expenditure.
d) Fourthly, learned counsel argued that the appellant does not deserve compensation for future medical expenditure since he has not examined any doctor to show that he requires removal of implants.
e) Finally, he argued that the claim is under Section 163A of the Motor Vehicles Act, 1988, and so assessment of compensation should be within the parameters provided under the said section.
He thus prayed to dismiss the appeal.
6) In the light of the above rival arguments, the point for determination in this appeal is:
“Whether the compensation awarded by the Tribunal is just and reasonable or needs any enhancement?”
7) POINT: The accident, involvement of APSRTC bus bearing No.AP 11 Z 584 and motorcycle bearing No.AP 23 C 1352, the claimant and his friend—Raju suffering injuries are all admitted facts. The tribunal basing on the oral and documentary evidence has held that the bus driver was responsible for the accident. The respondent/APSRTC has neither adduced any contra evidence before the Tribunal to establish the innocence of the bus driver nor preferred appeal challenging the said finding of the Tribunal. Therefore the only
point for determination in this appeal is regarding the adequacy of compensation.
8) The first argument of the appellant is that the Tribunal has not granted any medical expenditure to him. The counter argument of APSRTC is that he was treated in the Gandhi hospital wherein free treatment was provided and so, he does not deserve any medical expenditure. In this context, Ex.A5 discharge card would show that the claimant was treated as in- patient in Gandhi hospital, Secunderabad from 31.08.2007 to 21.09.2007 for fracture of right femur bone. As Gandhi hospital is a Government hospital, the treatment is expected to be free of cost which is not disputed by the appellant/claimant. However, his contention is that he spent about Rs.20,000/- for purchasing medicines etc., from medical shops and he could not preserve the bills. Since the treatment is free of cost and there is no proof of incurring any medical expenditure by way of purchase of medicines from the medical shops and no certification from Gandhi hospital authorities that for want of supply of medicines, the claimant had purchased medicines outside, no compensation can be awarded for the alleged medical expenditure.
9) Then coming to future medical expenditure, Ex.A5 discharge card and Ex.A6 X-Ray films would show that plates and screws were inserted in the fractured leg of the claimant during treatment. Now, the appellant/claimant claims that he needs removal of implants for which he has to incur a future medical expenditure of Rs.18,600/- as per Ex.A8 estimate issued by M/s Laxmi Venkateswara Ortho and Maternity Nursing Home, Sangareddy. The Tribunal rejected this claim on the ground that when the treatment was free in Gandhi hospital, the removal of implants can also be done free of cost in the same hospital. The submission of learned counsel for the appellant is that it would be convenient for the claimant to undergo implant removal surgery in his native district at Medak and the Tribunal could not have forced him to undergo surgery necessarily in Gandhi hospital. I find some force in this submission. As per the evidence of PW2, no doubt the claimant can go to Gandhi hospital for removal of implants but that is not mandatory and he can get it done in another hospital also. For removal of implants, he has to incur expenditure. As Ex.A8 is only an estimate, an amount of Rs.15,000/- which is considered as reasonable one is awarded towards future medical expenditure.
10) The next argument is that the Tribunal has not granted compensation for extra nourishment charges and transportation charges, though he incurred transportation charges for getting shifted from Medak district to Gandhi hospital for treatment and again back home. Similarly, he also incurred extra nourishment charges for recouping his health. Hence, he deserves compensation in this regard. A perusal of the award shows that the Tribunal though not granted medical expenditure, still granted compensation of Rs.5,000/- under the head incidental expenditure. Generally, the incidental expenditure includes attendant charges, extra nourishment charges and transportation charges etc. Considering the fact that the claimant underwent in-patient treatment in Gandhi Hospital for a considerable period from 31.08.2007 to 21.09.2007 and his possibility of incurring transportation, extra nourishment and attendant charges during the course of his treatment, the compensation awarded by the Tribunal is enhanced from Rs.5,000/- to Rs.15,000/- as the same is a meager one.
11) Then coming to the loss of earning power due to disability, the award shows that the Tribunal observed that PW2 exaggerated the disability and hence refused to accept 70% of disability as deposed by him. The Tribunal however observing that the claimant suffered some disability which would cause difficulty for him in carrying out his daily activities, granted Rs.5,000/- for the loss of future amenities of life.
In my view, the approach of the Tribunal is incorrect. The role of a Tribunal in assessing the compensation for a disability is well delineated in the decision reported in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited[3] “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) Thus, the duty is cast on the Tribunal to ascertain the extent of permanent disability and its affect over the earning capacity of the victim. However, in the instant case, having rejected the percentage of disability spoken by PW2 as exaggerated, the Tribunal has not tried to make a reasonable guess work in fixing the extent of physical and functional disability. On the other hand, it vaguely stated that the claimant suffered some disability and granted a lump sum amount of Rs.5,000/- for loss of amenities due to physical disability. It did not grant any compensation for loss of earning power on the ground that PW2 did not explain the relevancy of the disability to nature of his works. Since the nature of claimants works such as laundry business and cable operator business was already deposed, the Tribunal ought to have made a reasonable guess work as to the extent of the adverse impact that the disability would have on his activities and his earning and compensate him suitably. But the Tribunal did not do it. Hence, the compensation has to be assessed in this regard.
(b) PW2, an orthopedic surgeon, Mediciti Hospital, Medchal, who happened to examine the claimant, deposed that on clinical and radiological examination of the claimant he found that the fracture of right leg has united, but resulted in two inches shortening of right leg coupled with severe restriction of movement of right hip and thereby patient is having pain in walking for long distance, sitting and squatting. On those observations, PW2 assessed the disability of claimant as 70% partial permanent. The decisions cited by appellant would show that any qualified doctor even though he was not a treating doctor can assess the disability on clinical and radiological examination. The competency of PW2 was not challenged in the cross examination. So, PW2 can be accepted as a qualified doctor. Now regarding the percentage of disability spoken by him is concerned, he stated that he awarded 20% to shortening and 50% to severe restriction of the hip movement totaling 70%. Since both the shortcomings are related to one and the same organ i.e., right leg, the physical disability with reference to the entire body can be taken as 30%. So far as functional disability is concerned, as per PW2, the claimant faces difficulty in walking for long distance, sitting and squatting. Hence, his functional disability with reference to his laundry business and cable operator business can be accepted as 10%. For loss of amenities due to physical disability, the compensation awarded by Tribunal is considered low and hence enhanced from Rs.5,000/- to Rs.15,000/-.
(c) Then loss of earning power due to functional disability is concerned, having regard to the nature of his avocation, his monthly income is fixed at Rs.3,000/-. His annual income which will serve the purpose as multiplicand comes to Rs.36,000/- (Rs.3,000 x 12). The claimant though claims to be 25 years old has not produced any cogent record. So his age is taken as more than 30 years and 16 is accepted as multiplier. By multiplying his annual income with 16, we will arrive at his total earning at Rs.5,76,000/- (Rs.36,000 x 16). The disability being 10%, the aforesaid amount is reduced to that extent and a sum of Rs.57,600/- is awarded as compensation for loss of earning power due to disability.
(d) It may be noted that the Tribunal awarded Rs.25,000/- for pain and suffering. The claim petition being one under Section 163A of the Motor Vehicles Act, the compensation for pain and suffering due to grievous and non-grievous injuries cannot exceed Rs.6,000/-. So, the compensation under the said head is reduced to Rs.6,000/-. Thus the total compensation payable to the claimant under different heads can be stated as below:
(i) Pain and suffering - Rs.
6,000/-
(ii) Incidental expenditure towards extra nourishment, attendant charges and transportation -
Rs.15,000/-
(iii) Future Medical expenditure - Rs.15,000/-
(iv) Loss of amenities - Rs.15,000/-
(v) Loss of earning capacity - Rs.57,600/-
(vi) Loss of past earnings - Rs. 6,000/-
Total - Rs.1,14,600/-
So, the compensation is enhanced by Rs.73,600/- (Rs.1,14,600/- minus Rs.41,000/-)
12) In the result, this MACMA is partly allowed and ordered as follows:
(i) The compensation is enhanced by Rs.73,600/- with proportionate costs. The enhanced compensation amount shall carry interest at 7.5% per annum from the date of O.P, till the date of realization.
(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 order as to costs in the appeal.
As a sequel, miscellaneous petitions if any pending, shall stand closed.
JUSTICE U. DURGA PRASAD RAO Date: 05.06.2014
Note: L.R Copy to be marked: YES / NO
scs / ksm
[1] 2003 (4) ALD 183 (DB)
[2] 2007 (1) ALT 648
[3] (2011) 13 Supreme Court Cases 236