* THE HON’BLE SRI JUSTICE U. DURGA PRASAD RAO
+ M.A.C.M.A No.556 of 2010
%07.11.2014
Between:
Thota Balreddy @ Balaiah Appellant AND Managing Director, APSRTC, Musheerabad, Hyderabad, Rep. by its Regional Manager, Medak District. …. Respondent ! Counsel for Appellant : Sri P. Sriharinath ^ Counsel for Respondent : Sri N. Vasudeva Reddy < Gist:
> Head Note:
? Cases referred:
1. (2011) 1 SCC 343 = (2011) 1 SCC (Cri) 1161
2. AIR 2012 Supreme Court 544
3. (2013) 8 Supreme Court Cases 389
4. (2010) 10 SCC 341 = (2010) 3 SCC (Cri) 1285 THE HONOURABLE SRI JUSTICE U.DURGA PRASAD RAO
M.A.C.M.A. No.556 of 2010
JUDGMENT:
Aggrieved by the Award dated 12.11.2009 in OP No.155 of 2008 passed by the Chairman, M.A.C.T-cum-Principal District Judge, Medak at Sangareddy (for short “the Tribunal”), the claimant preferred the instant MACMA.
2 a) On factual side, on 05.12.2007, when the claimant and his relative—Akula Durgaiah were returning to Banjerupally village after attending the marriage at Patancheru on Hero Honda Motorcycle bearing No.AP 28J 2566 at about 12.20 hours in the night time, when they reached in front of Rane Breakliners Factory on Rajiv Rahadari Road in the limits of Pregnapur village, one RTC bus bearing No.AP 10 Z 54 belonging to Korutla depot came in opposite direction being driven by its driver in a rash and negligent manner and dashed the motorcycle. Due to which the claimant and pillion rider fell down and sustained grievous injuries and immediately they were shifted to Gandhi Hospital, Secunderabad for treatment. On these pleas, the claimant filed O.P.No.155 of 2008 against the respondent/APSRTC and claimed Rs.4,00,000/- as compensation.
b) Respondent/Corporation filed its counter and denied all the material averments made in the claim petition and urged to put the claimant in strict proof of the same. It contended that there was no rashness or negligence on the part of bus driver. It also contended that the claim is highly excessive and exorbitant and thus prayed to dismiss the petition.
c) During trial PWs.1 and 2 were examined and Exs.A1 to A10 were marked on behalf of claimant. RW1 was examined on behalf of Respondent.
d) The Tribunal on appreciation of both oral and documentary evidence, has awarded a sum of Rs.77,175/- with costs and interest at 7.5% p.a under different heads as follows:
Pain and suffering Rs. 30,000-00 Medical expenditure Rs. 22,175-00 Past and future loss of earnings Rs. 25,000-00 Total Rs. 77,175-00 Hence, the appeal by claimant.
3) The parties in the appeal are referred as they stood before the Tribunal.
4) Heard arguments of Sri P.Sriharinath, learned Counsel for appellant/ claimant and Sri N.Vasudeva Reddy, learned Standing Counsel for APSRTC/respondent.
5) Impugning the award, learned counsel for appellant mainly argued that though the claimant suffered partial permanent disability in the left part of his body due to hemiplegia, the Tribunal grossly erred in appreciating the oral and documentary evidence and consequently not accepting his disability on the sole ground that the claimant failed to examine the doctor of the Medical Board which issued Ex.A.10— disability certificate. Learned counsel vehemently argued that though the claimant failed to examine the doctor from Medical Board, still he examined PW.2—the doctor who treated him and who deposed that the claimant suffered 50% partial permanent disability. Therefore, the Tribunal ought to have considered the evidence of PW.2 and ought to have accepted the disability. He relied upon the following decisions in respect of appreciation of the medical evidence for fixing the disability:
1. Raj Kumar vs. Ajay Kumar and another
2. D. Sampath vs. United India Insurance Co. Ltd. and another
3. Rekha Jain vs. National Insurance Company Limited and others
4. Yadava Kumar vs. Divisional Manager, National Insurance Company Limited and another.
He thus prayed to allow the appeal and award compensation for disability of the claimant.
6 ) Per contra, while supporting the award learned counsel for respondent/APSRTC argued that except filing Ex.A.10—disability certificate purported to be issued by Medical Board, the claimant has not taken steps to examine any of the doctors from the Medical Board in proof of Ex.A.10 and the Tribunal rightly rejected Ex.A.10 and therefore, there is no need to revise the compensation. He thus prayed to dismiss the appeal.
7) In the light of 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?”
8) POINT: The accident, involvement of APSRTC bus bearing No.AP 11 Z 54 and motorcycle of the claimant and claimant suffering injuries are not in dispute. The main grievance of the claimant is that the Tribunal failed to accept the partial permanent disability suffered by him by rejecting the oral and documentary evidence placed by him. The submission of learned counsel for appellant is that though the claimant could not examine the doctor of the Medical Board which issued Ex.A.10—disability certificate, still he could examine PW.2— the doctor who treated him and who also deposed about his disability. He argued that PW.2—a competent Neuro Surgeon who treated for the head injury and fracture of right femur of the claimant clearly deposed that the claimant suffered left hemiplegia (left side
paralysis) which is 50% and therefore, though the Tribunal disinclined to accept Ex.A.10 for want of proper proof, still the Tribunal had no reason to disbelieve the evidence of a competent doctor. However, the Tribunal rejected the evidence of PW.2 also without any reason and as a result did not consider the disability of the claimant and not granted any compensation.
a) On a perusal of the evidence on record, the award and citations placed before this Court by the appellant, I find force in his argument. Ex.A.3—wound certificate issued by the Medical Officer would show that the claimant suffered two grievous injuries: 1) Head injury with left hemiplegia 2) Fracture of right femur. Then it appears, the claimant took treatment in SKS Neuro Polytrauma Hospital, Kacheguda, Hyderabad from 06.12.2007 to 19.12.2007. Ex.A.6—discharge summary shows that sofaras brain is concerned, the claimant suffered non haemorrhagic contusions fronto-temporo-parietal regions and also Pneumocephali, Sub-arachnoid bleeding, for which he was treated. Besides, his fractured right femur was operated open and Interlocking nailing was done on 15.12.2007. This aspect was deposed by PW.2—Dr. T.V. Srinivas, Neuro Surgeon in SKS Hospital. He deposed that the claimant is having left hemiplegia (left side paralysis) and he is not able to walk without support and his position is unlikely to improve and that he suffered partial permanent disability of about 50%. He denied the suggestion in the cross- examination that the claimant has not suffered any disability and that he can attend his works without any support. He denied the further suggestion that the claimant has not taken treatment in their Hospital and Ex.A.6 was a false certificate. Then Ex.A.10 is the disability certificate issued by the District Medical Board, Medak wherein it is mentioned that the claimant suffered 50% left hemiplegia. Admittedly, no doctor from the Medical Board was examined.
The above is the oral and documentary evidence produced regarding the injuries and treatment underwent by the claimant.
b) The award would show that the Tribunal rejected Ex.A.10 on the ground that doctor from the Medical Board was not examined and that there was a discrepancy with regard to the percentage of disability in figures and words. The Tribunal has not assigned any reasons for not considering the evidence of PW.2. Thus ultimately, the Tribunal did not consider the disability of the claimant. In my considered view, the approach of the Tribunal is not correct in view of the decision of Apex Court in Raj Kumar’s case (1 supra). In this decision, the Apex Court exhaustively dealt with how to appreciate medical evidence in determining the disability of a victim in a motor accident. Incidentally, the Apex Court also discussed about the authenticity of the disability certified by the competent doctor who treated the victim. The Apex Court summarised its principles as follows:
“Para 19: We may now summarise the principles discussed above:
i. All injuries (or permanent disabilities arising from injuries), do not result in loss of earnings capacity.
ii. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as percentage of permanent disability).
iii. The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
iv. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”
9) Thus a perusal of the above principles would show that a doctor who treated the victim is competent to depose and issue the disability certificate but it relates to physical disability only. Therefore, the Courts need not discard the disability certificates issued by the doctors on the ground that they were not issued by Medical Boards. Ofcourse, concerned doctor should be a competent doctor and he should be examined in the Court. Basing on the disability spoken by such a doctor, the Court should evaluate the percentage of functional disability with reference to the nature of profession, occupation, age, education and etc., factors relating to the victim and then assess the compensation.
a) In the instant case, the Tribunal for want of proof rejected Ex.A.10 —disability certificate and to that extent it may be right but the Tribunal has not assigned any reason for discarding the evidence of PW.2 who is a competent Neuro Surgeon Consultant and who treated the claimant in his Hospital. Therefore, the Tribunal was not right in rejecting his evidence. His evidence would show that the claimant suffered 50% partial permanent disability due to left hemiplegia (left side paralysis). As laid down in the above decision, it is only a physical disability with reference to whole body. Now we have to assess the resultant functional disability.
b) As per the pleadings and evidence of PW.1, he was an agricultural labourer prior to the accident. The physical disability deposed by Doctor would certainly effect his earning capacity to his disadvantage. He may not attend hard agricultural labour works and he can attend only light works to eak-out his livelihood. So considering all these, I tend to fix his functional disability at 20%. Compensation is concerned, the Tribunal fixed his notional monthly income as Rs.3000/- which I agree. His annual income comes to Rs.36,000/- (Rs.3,000/- x 12). The claimant was aged about 28 years and so multiplier of ‘15’ is selected. By multiplying his annual income with ‘15’, we will arrive at his total earnings which comes to Rs.5,40,000/- (Rs.36,000/- x 15). Since his functional disability is 20%, aforesaid amount is reduced to that extent, which comes to Rs.1,08,000/- (Rs.5,40,000/- x 20%) and the same is awarded as compensation for loss of earning power due to disability. Thus the total compensation payable to the claimant is detailed as below:
Loss of earning power due to disability Rs.1,08,000-00 Pain and suffering Rs. 30,000-00 Medical expenditure Rs. 22,175-00 Past and future loss of earnings Rs. 25,000-00 Total Rs. 1,85,175-00 So, the compensation is enhanced by Rs.1,08,000/- (Rs.1,85,175 minus Rs.77,175/-).
10) In the result, this MACMA is partly allowed and ordered as follows:
a. The compensation is enhanced by Rs.1,08,000/- with proportionate costs. The enhanced compensation amount shall carry interest at the rate of 7.5% p.a from the date of O.P till the date of realization.
b. The respondent/APSRTC is directed to deposit the compensation amount within two months from the date of this judgment, failing which execution can be taken out against it.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
U.DURGA PRASAD RAO, J Date: 07.11.2014
Note: L.R. Copy to be marked: Yes/No
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