Andhra Pradesh High Court - Amravati
Common Judgment vs Ajay Kumar on 27 December, 2022
BVLNC,J MACMA 3024 & 3059 of 2017
Page 1 of 35 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.3024 OF 2017 & 3059 OF 2017
COMMON JUDGMENT:
The appeal in MACMA No.3024/2017 is preferred by the
Appellant/claimant challenging the award dated 01.09.2017 passed in
M.V.O.P.No.89/2014 on the file of Motor Accidents Claims Tribunal-
cum-III Addl.District Judge, Ananthapuram, wherein the Tribunal
partly allowed the petition, awarded a compensation of Rs.16,48,000/-
with interest @ 7.5% p.a. from the date of petition to the date of
realisation to the petitioner for the injuries sustained by her in a motor
vehicle accident.
2. The appeal in MACMA No.3059/2017 is preferred by the
2nd respondent/Insurance Company, challenging the award dated
01.09.2017 passed in M.V.O.P.No.89/2014 on the file of Motor
Accidents Claims Tribunal-cum-III Addl.District Judge,
Ananthapuram, wherein the Tribunal partly allowed the petition,
awarded a compensation of Rs.16,48,000/- with interest @ 7.5% p.a.
from the date of petition, till the date of realisation to the petitioner, for
the injuries sustained by her in a motor vehicle accident.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 2 of 35 Dt: 27.12.2022
3. For the sake of convenience, the parties are arrayed as parties in
the lower Court.
4. As seen from the record, the claim petition was filed U/Ss. 140
and 166 of the Motor Vehicles Act, 1988 (for brevity "the Act") claiming
a compensation of Rs.25,00,000/- on account of the injuries sustained
by the petitioner, in a motor vehicle accident that occurred on
03.04.2012.
5. The facts show that on 03.04.2012 the petitioner Dr.C.
Kareemunnisa @ S.M. Karimunnisa was travelling in a car bearing No.
AP 02 AF 2313 along with her family members from Kamalapuram to
Nandyal after visiting the Mosque (Dhargh) at Kamalapuram, and
when they were proceeding near Chintakunta Chruvu Cross on
Kadapa - Kurnool road, NH-18, at about 03.00 p.m., the crime bus
bearing No. AP 05 TT 1999 driven in a rash and negligent manner by
its driver came in the opposite direction and dashed the car. Due to
the said impact, the petitioner sustained grievous injuries.
Immediately after the accident, the petitioner was shifted to
Government Hospital, Prodduturu, for treatment. Later she was shifted
to Aswani Super Speciality Hospital, Proddutur. Again she was shifted
to UDAI Hospitals at Hyderabad for better treatment. She stayed as in-
patient for a period of two months and received treatment. She
BVLNC,J MACMA 3024 & 3059 of 2017
Page 3 of 35 Dt: 27.12.2022
underwent operation and doctor inserted implants to the fracture. She
spent Rs.3,00,000/- towards medical expenses. The petitioner was
hale ad healthy and she was aged 26 years at the time of accident. She
was practicing as a private homoeopathy doctor at Nandyal and
earning Rs.25,000/- per month. On account of fractures in hip joint,
she is not able to squat, walk, stand freely and discharge her duties as
a medical practitioner. The Medical Board examined her and assessed
the disability at 55%, permanent in nature. On information, Duvvuru
Police registered a case in Cr.No.49/2012 for the offence punishable
U/Ss. 337, 338 and 304-A of Indian Penal Code against the driver of
the crime bus.
6. Before the Tribunal, the 2nd respondent/Insurance Company,
filed a written statement resisting, while traversing the material
averments with regard to proof of age, avocation, monthly earnings of
the petitioner, manner of accident, rash and negligence on the part of
the driver of the offending vehicle, and liability to pay compensation,
contended that there was a collision of the bus and the car, and
therefore, there was contributory negligence on part of the driver of the
car. The driver of the bus drove the bus very slowly in a careful
manner without any negligence, whereas the driver of car drove the
same in a rash and negligent manner and caused the accident. The
BVLNC,J MACMA 3024 & 3059 of 2017
Page 4 of 35 Dt: 27.12.2022
compensation claimed is excessive. The 2nd respondent also filed
additional counter, contending that the driver of the car bearing No. AP
02 AF 2313 was not holding a valid driving license at the time of the
accident.
7. The 4th respondent filed a counter denying material averments of
the petition, contended that the accident took place only due to the
rash and negligent driving of the driver of the crime bus bearing No. AP
05 TT 1999, and that there was neither rashness nor negligence on
part of the driver of the car bearing No.AP 02 AF 2313, as such, this
respondent is not liable to pay any compensation. The petitioner was
travelling as a passenger in the car on the date of the accident, and
that risk of passengers travelling in the car is not covered by the
insurance policy. The compensation claimed is highly excessive.
8. Respondents No.1, 3, 5 and 6 remained exparte.
9. On the strength of the pleadings of both parties, the Tribunal
framed the following issues:
1. Whether the petitioner Chinnakunata Palli Kareemunnisa @
S.M.Karimunnisa received injuries in the motor vehicle accident
on 03.04.2012 at about 03.00 p.m. near Chintakunta Cheruvu
Cross, Chinthakunta village, Duvvuru Mandal, on Kadapa -
BVLNC,J MACMA 3024 & 3059 of 2017
Page 5 of 35 Dt: 27.12.2022
Kurnool NH-18 Road, due to rash and negligent driving of the
driver of the bus bearing No.AP 05 TT 1999?
2. Whether the petitioner is entitled to receive compensation? If
so, to what extent and from whom?
3. To what relief?
10. To substantiate their claim, the petitioner examined P.Ws-1 to 6
and got marked Exs.A-1 to A-13. Respondents No.2 and 4 did not
adduce any oral evidence, but the 2nd respondent got marked a copy of
the insurance policy as Ex.B-1 and 4th respondent got marked a copy
of the award in O.P.612/2012 as Ex.B-2 with consent.
11. The Tribunal, taking into consideration the evidence of P.Ws-1 to
6, coupled with Exs.A-1 to A-13, held that the accident took place due
to the rash and negligent driving of the driver of crime bus bearing No.
AP 05 TT 1999, and further, taking into consideration the evidence of
P.Ws-1 to 6, corroborated by Exs.A-1 to A-13, awarded a compensation
of Rs.16,48,000/- with interest @ 7.5% p.a. from the date of petition,
till the date of realisation with proportionate costs, against
respondents No.1, 2 and 5, by exonerating the liability against
respondents No.3, 4 and 6.
12. The contention of the appellant/claimant in MACMA
No.3024/2017 is that the claimant sustained grievous injuries in the
BVLNC,J MACMA 3024 & 3059 of 2017
Page 6 of 35 Dt: 27.12.2022
accident that occurred on 03.04.2012, and as a result, she took
treatment as in-patient for a period of two months, and underwent an
operation to set right the fracture suffered by her, and she incurred a
sum of Rs.3,00,000/- towards medical expenses, and at the time of
accident, she was aged 25 years, and practising as a Homeopathic
Doctor, and earning Rs.25,000/- per month, and therefore, she is
entitled to a loss of earnings during the period of treatment, and
further, she suffered permanent disability of 55% due to the fracture of
hip joint, and as a result, she is unable to squat, walk and stand
freely, and therefore, not able to discharge her duties as a doctor, and
she is entitled to Rs.17,80,000/- towards loss of future earnings on
account of permanent disability; and the Tribunal erred in applying
multiplier 17 instead of 18, and wrongly considered the disability at
40% instead of 55%, and the Tribunal also fixed the income at
Rs.15,000/- per month only instead of Rs.25,000/- keeping her at par
with the case of engineering student, though the appellant is a doctor,
and even that she was earning Rs.25,000/- per month at the time of
accident, and therefore, the Tribunal did not award just compensation
and awarded Rs.16,48,000/- only, against her claim at Rs.25,00,000/-
; The Tribunal awarded only Rs.3,00,000/- towards medical
expenditure instead of Rs.5,00,000/- incurred by the claimant, and
BVLNC,J MACMA 3024 & 3059 of 2017
Page 7 of 35 Dt: 27.12.2022
the Tribunal also failed to award future medical expenses for
replacement of hip, and therefore, the Tribunal failed to award just
compensation to the claimant.
13. The Insurance Company, which is an appellant in MACMA No.
3059/2017 contended that the order of the Tribunal is erroneous, and
the Tribunal failed to see that the accident occurred due to negligence
on both drivers but fastened liability only on the appellant, and the
Tribunal awarded a sum of Rs.16,48,000/-, though there is no income
proof produced by the claimant, and awarded interest at 7.5% p.a., is
excessive in the circumstances of the case.
14. In the light of the above rival contentions raised in both the
appeals, the points that would arise for consideration in both the
appeals are as under:
1. Whether the driver of the car also contributed to cause the
accident?
2. Whether the Tribunal did not award just compensation to the
claimant?
3. To what relief?
BVLNC,J MACMA 3024 & 3059 of 2017
Page 8 of 35 Dt: 27.12.2022
15. POINT No.1:
The case of the claimant is that on 03.04.2012 she along with
her family members are travelling in a car bearing No. AP 02 AF 2313
from Kamalapuram to Nandyal, and when the car reached
Chintakunta Cheruvu Cross on Kadapa - Kurnool NH 18 road, at
about 03.00 p.m., the crime vehicle i.e., bus bearing No.AP 05 TT 1999
was coming in the opposite direction in a negligent manner, dashed
the car, and as a result, the claimant sustained grievous injuries, and
was shifted to Government General Hospital, Prodduturu, for
treatment, and later to Aswini Super Speciality Hospital, Prodduturu,
and subsequently to UDAI Hospital at Hyderabad for better treatment.
16. The contention of the insurer of the bus is that the accident
occurred due to the rash and negligent driving of the driver of the car,
and not due to the negligence of the driver of bus. It is pertinent to
note down that the insurer, the driver and owner of the car were also
impleaded as parties to the claim petition apart from the driver and
owner of the bus. Both drivers and both owners i.e., drivers of the car
and the bus remained exparte before the Tribunal. The other insurer
i.e., insurer of the car filed a counter contending that the accident
occurred due to the rash and negligent driving of the driver of the bus.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 9 of 35 Dt: 27.12.2022
17. It is an admitted fact that the police registered a case in Cr.No.
49/2012 of Duvvuru Police Station against the driver of the bus,
investigated into the crime and laid a police report (charge sheet)
against the driver of the bus, opining that he drove the bus negligently,
and therefore, the accident occurred. The claimant in support of her
evidence filed Ex.A-1 copy of FIR, Ex.A-3 copy of police report (charge
sheet). The insurer of the bus has cross-examined the claimant, but
did not elicit anything to say that the accident occurred due to the
negligence of the driver of the car i.e., to say that he also contributed
to the cause of accident. The insurer of the bus did not choose to
examine the driver of the bus to depose about the way in which the
accident occurred. In the absence of contra evidence, the evidence of
P.W-1, who is an injured and travelling in the car at the time of
accident, and also in view of Ex.A-3 police report (charge sheet) in the
case, which corroborates the testimony of the claimant, I do not find
any reason to disbelieve the evidence of the claimant. Therefore, the
contention of the Insurance Company that the accident occurred due
to the negligence of the driver of the car is not supported by any
evidence. The material on record establishes that the accident
occurred due to the rash and negligent driving of the driver of the bus.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 10 of 35 Dt: 27.12.2022
Accordingly, this point is answered against the insurer of the bus i.e.,
appellant in MACMA No.3059/2017.
18. POINT No.2:
The claimant has made claim under the following heads:
Sl.No. Description of the head Amount claimed in
Rs.
1 Pain and suffering 1,00,000-00
2 Mental agony and shock 20,000-00
3 Medical attendant and transportation 3,00,000-00
4 Loss of earnings due to permanent 17,80,000-00
disability and injuries
5 Future medical expenses 3,00,000-00
Total = 25,00,000-00
The Tribunal awarded the compensation as under:
Description of the head Amount awarded
Sl.No. in Rs.
1 Pain and suffering 30,000-00
2 Mental agony and shock 20,000-00
3 Medical expenses and transportation 3,04,000-00
4 Loss of earnings due to permanent 12,24,000-00
disability and injuries
5 Future medical expenses 20,000-00
BVLNC,J MACMA 3024 & 3059 of 2017
Page 11 of 35 Dt: 27.12.2022
6 Extra nourishment 20,000-00
7 Loss of earnings 15,000-00
Total = 16,48,000-00
19. The contention of the claimant is that she is a qualified
Homoeopathic Doctor, and is earning Rs.25,000/- per month at the
time of the accident. The claimant to prove that she is a qualified
Homoeopathic Doctor filed certain documents covered by Exs.A-11 to
A-13 on 01.03.2017. Ex.A-11 is copy of provisional decree certificate
issued by the Registrar, Rajiv Gandhi University of Health Sciences,
Karnataka, dated 23.02.2021. Ex.A-12 is convocation of Bachelor of
Homoeopathic Medicine and Surgery issued by Vice Chancellor, Rajiv
Gandhi University of Health Sciences, Karnataka, dated 29.03.2010
and Ex.A-3 is certificate of registration issued by Registrar, Andhra
Board for Homeopathy, Hyderabad, Andhra Pradesh dated 17.05.2010,
which shows that the claimant is a graduate in Homeopathic Medicine
and Surgery, and she was registered with Andhra Board for
Homeopathy, Hyderabad, Andhra Pradesh. The insurer did not choose
to cross-examine the claimant about these documents. Therefore, it is
established that the claimant is a qualified doctor in Homeopathic
Medicine on the date of the accident.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 12 of 35 Dt: 27.12.2022
20. The claimant in order to show that she was earning Rs.25,000/-
per month has examined P.W-6. The evidence of P.W-6 is that she is a
Gynaecologist, practising at Nandyal, and running a Nursing Home in
the name and style of Sri Venkateswara Nursing Home at Nandyal,
and the petitioner is working in her Nursing Home since 13 months
from 01.01.2011 to 30.01.2012, and she was paid a sum of
Rs.25,000/- per month as salary under Ex.A-9, issued on 02.07.2012,
and that the petitioner took leave for 2 ½ months for marriage
purpose, but after marriage, she met with the said road accident. In
the cross-examination she deposed that the claimant worked as a duty
doctor in the Nursing Home, and that she is maintaining attendance
register and except attendance register, there are no records about the
employment of the claimant. The Insurance Company did not elicit
anything to discredit her evidence.
21. The fact proved is that the claimant is a qualified Homeopathic
Doctor. The Tribunal considered her income at Rs.15,000/- per month
relying on the judgment of Hon'ble High Court, which is on the point of
income relating to an engineering student died in a motor accident.
The Tribunal fixed the income of the claimant at Rs.15,000/- per
month on the ground that P.W-6 in the cross-examination stated that
she worked as duty doctor, but not as a Homeopathic Doctor, ignoring
BVLNC,J MACMA 3024 & 3059 of 2017
Page 13 of 35 Dt: 27.12.2022
the fact that her evidence is with regard income i.e., the salary paid to
claimant at the time of accident. Therefore, the order of the Tribunal
fixing the income of the claimant, who is a qualified Homeopathic
Doctor at Rs.15,000/- per month, treating her case on par with a
student of III Year Engineering Computer Course erroneous. In the
light of evidence of P.W-1 and P.W-6 and Exs.A-11 to A-13, income of
the claimant has to be fixed at Rs.25,000/- per month
22. Next point is whether she is entitled to a compensation for loss
of earnings as claimed for physical disability. The case of the claimant
is that she sustained grievous injuries in the accident. Ex.A-3 is the
wound certificate. As per Ex.A-3 wound certificate issued by
A.P.Vaidya Vidhana Parishad, and when she was admitted in
Government General Hospital, Prodduturu, immediately after accident,
discloses that she sustained injuries as under:
1. Pain and tenderness over hip joint.
2. 1x1 cm. laceration over right eye brow.
23. The evidence of the claimant discloses that initially she was
admitted in Government General Hospital, Prodduturu, and later she
was shifted to Aswini Super Speciality Hospital at Prodduturu, and
later to UDAI Hospital at Hyderabad, for treatment and on account of
BVLNC,J MACMA 3024 & 3059 of 2017
Page 14 of 35 Dt: 27.12.2022
the injuries, she sustained commuted fracture acctabulum posterior
wall left hip with left foot drop and rhemotoid arthritic and injury over
right eye brow and she is unable to squat, walk, stand freely and she
cannot discharge her duties as a doctor and is completely depending
on others, and as per the disability certificate issued by Medical Board,
she suffered permanent disability at 55%, and therefore, she sustained
loss of future earnings on account of the disability.
24. The claimant in order to prove her case, has examined the
doctor, who treated her and also issued a disability certificate. P.W-2 is
a doctor from Government General Hospital, Ananthapuram, and
issued Ex.A-5 disability certificate on 05.06.2013. He deposed that due
to post traumatic sequale due to RTA on 03.04.2012 with communited
fracture central dislocation of left hip joint with foot drop left side and
taken treatment at UDAI Clinic, Hyderabad and undergone surgery,
and on examination, he found wounds healed, communited fracture
acetabulum left united with mal union with changes in the left hip
joint with secondary osteo arthritis of left hip joint present, and the
patient has got decreased range of movements of left hip joint in all
directions with wasting of muscles of left thigh, leg and foot with foot
drop. Limping present due to the above injury. She cannot sit in the
position of squatting and cross legging. She has difficulty for long
BVLNC,J MACMA 3024 & 3059 of 2017
Page 15 of 35 Dt: 27.12.2022
distance walking, prolonged periods of standing, climbing stairs, vice
versa and running. As per his estimation, she suffered 55% of
permanent disability and accordingly, he issued Ex.A-5 and in the
cross-examination of the Insurance Company, he deposed that the
disability was only for the limb. He admitted that the petitioner can
attend her day to day activities. Therefore, as per his evidence, inspite
of the above permanent disability to the limb, the claimant can attend
her day to day activities.
25. P.W-3 is a doctor from UDAI Clinic, Hyderabad. He deposed that
the claimant was admitted in the hospital on 04.04.2012 with history
of road traffic accident on 03.04.2012, and she sustained an injury to
left hip, and taken primary treatment at Proddutur, and the patient
suffered fracture of posterior wall of acetabulum with a central fracture
dislocation of the head of the femur of left hip, and also suffered left
foot drop because nerve injury. On the same day, a pintraction applied
through lower femur on 07.04.2012 open reduction, and internal
fixation of the fracture in the left acetabulum was done under general
anaesthesia. The patient was discharged after suture removal on
19.04.2012 and again was readmitted on 03.08.2012 with a first
discharge from the outer side of left thigh causing fever and itching
this time, and she was re-operated and wound thoroughly debrided
BVLNC,J MACMA 3024 & 3059 of 2017
Page 16 of 35 Dt: 27.12.2022
and washed, and subsequently, she was sent home back on
05.08.2012, and subsequently, she has taken treatment at Nandyal
and later at Ananthapuram, and she requires total hip replacement in
future, and that operation may cost Rs.2,00,000/-, and corresponding
wound certificate as Ex.A-3 and as per his evidence, the patient has
difficulty in squatting on the ground in Indian style, and she cannot
walk and run fast, and she may have residual pain and foot drop, and
Ex.A-6 is the discharge summary issued by their hospital and Ex.A-8
is X-rays belong to the patient.
26. In the cross-examination of insurer/4th respondent, adopted by
the 2nd respondent, he deposed that the patient did not come to their
hospital for follow up treatment after 05.08.2012, and the patient was
doing well at the time of discharge and in the cross-examination, it
was also elicited Ex.A-7 is part and parcel of UDAI Clinic covered by
Ex.A-7.
27. P.W-4 is the in charge of UDAI Hospital Pharmacy. The claimant
examined him to prove Ex.A-7 medical bills. As per his evidence,
Ex.A-7 medical bills were issued by their hospital. It is pertinent to
note down that the insurer himself elicited in the cross-examination of
P.W-3 that Ex.A-7 was issued by Arya Pharmacy, which is part and
parcel of Udai Hospital. The same was corroborated by P.W-4.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 17 of 35 Dt: 27.12.2022
28. P.W-5 is the Physiotherapist. As per his evidence, he treated the
petitioner from 08.05.2012 to 08.04.2013, and he received
Rs.49,500/- from the petitioner for the physiotherapist to the
petitioner covered by Ex.A-7 bills, and in the cross-examination, he
deposed that he is not maintaining any books of accounts, and he is
practising as Physiotherapist basing on his provisional degree. He
denied the suggestion of the Insurance Companies that he issued
Ex.A-7 bill only to help the claimant.
29. The above evidence of the claimant and the doctors examined by
the claimant, establish that she has suffered fracture to her left hip
due to the accident occurred on 03.04.2012, and she was operated for
the same at UDAI Hospital, Hyderabad. On account of the said
fracture to hip and operation, she suffered certain disabilities i.e., she
cannot walk and run fast, she is facing difficulty in squatting on the
ground in Indian style and she will have residual pain on foot drop.
The evidence of the doctor, who issued the permanent disability
certificate, corroborated the same apart from the evidence of the
doctor, who treated her. The physical disability to her limb was
assessed under Ex.A-6 is 55%. The doctor, who issued the same
admitted that she can attend her normal activities inspite of that
disability. Admittedly, the claimant is working as Homeopathic Doctor.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 18 of 35 Dt: 27.12.2022
It is not her evidence that on account of the injury sustained in the
accident, she is not able to attend or perform duties as a Homeopathic
Doctor. She might be suffering pain due to standing, while attending
duty as doctor. It is not her case that she has lost the employment on
account of the disability to the limb or she was asked to work in a
lower rank post, and therefore, she sustained loss of earnings, and
that she is unable to get any new employment with higher emoluments
on account of the physical disability.
30. The Tribunal though observed that she did not state anything
about functional disability, assessed the same at 40% without
assigning any reason. In para 35 of the order of the Tribunal, it was
held that 'there is a difference between medical disability and
functional disability, and the evidence of P.W-2 does not show due to
disability the work of the patient will be totally lost; On the other hand,
evidence of P.W-2 is very clear that patient can attend her normal
duties; So, the disability is fixed at 40%'. The Tribunal accordingly
calculated the loss of earnings and arrived the loss of earnings at
Rs.12,24,000/-.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 19 of 35 Dt: 27.12.2022
31. The Tribunal in its order failed to fallow the principles laid down
by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar
and another1, held in paragraphs 4 to 13 as under:
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The object
of awarding damages is to make good the loss suffered as a
result of wrong done as far as money can do so, in a fair,
reasonable and equitable manner. The court or tribunal shall have
to assess the damages objectively and exclude from consideration
any speculation or fancy, though some conjecture with reference
to the nature of disability and its consequences, is inevitable. A
person is not only to be compensated for the physical injury, but
also for the loss which he suffered as a result of such injury. This
means that he is to be compensated for his inability to lead a full
life, his inability to enjoy those normal amenities which he would
have enjoyed but for the injuries, and his inability to earn as
much as he used to earn or could have earned. (See C. K.
Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D.
Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and
Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal
injury cases are the following:
2011 (1) SCC 343
BVLNC,J MACMA 3024 & 3059 of 2017
Page 20 of 35 Dt: 27.12.2022
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In
routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of injury,
where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life. Assessment of pecuniary damages
under item (i) and under item (ii)(a) do not pose much difficulty as
BVLNC,J MACMA 3024 & 3059 of 2017
Page 21 of 35 Dt: 27.12.2022
they involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the head of future
medical expenses - item (iii) -- depends upon specific medical
evidence regarding need for further treatment and cost thereof.
Assessment of non-pecuniary damages - items (iv), (v) and (vi) --
involves determination of lump sum amounts with reference to
circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant and the
effect thereof on the future life of the claimant. Decision of this
Court and High Courts contain necessary guidelines for award
under these heads, if necessary. What usually poses some
difficulty is the assessment of the loss of future earnings on
account of permanent disability - item (ii)(a). We are concerned
with that assessment in this case. Assessment of future loss of
earnings due to permanent disability
6. Disability refers to any restriction or lack of ability to perform
an activity in the manner considered normal for a human-being.
Permanent disability refers to the residuary incapacity or loss of
use of some part of the body, found existing at the end of the
period of treatment and recuperation, after achieving the
maximum bodily improvement or recovery which is likely to
remain for the remainder life of the injured. Temporary disability
refers to the incapacity or loss of use of some part of the body on
account of the injury, which will cease to exist at the end of the
period of treatment and recuperation. Permanent disability can be
either partial or total. Partial permanent disability refers to a
person's inability to perform all the duties and bodily functions
that he could perform before the accident, though he is able to
BVLNC,J MACMA 3024 & 3059 of 2017
Page 22 of 35 Dt: 27.12.2022
perform some of them and is still able to engage in some gainful
activity. Total permanent disability refers to a person's inability to
perform any avocation or employment related activities as a result
of the accident. The permanent disabilities that may arise from
motor accidents injuries, are of a much wider range when
compared to the physical disabilities which are enumerated in the
Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1995 (`Disabilities Act' for short). But if
any of the disabilities enumerated in section 2(i) of the Disabilities
Act are the result of injuries sustained in a motor accident, they
can be permanent disabilities for the purpose of claiming
compensation.
7. The percentage of permanent disability is expressed by the
Doctors with reference to the whole body, or more often than not,
with reference to a particular limb. When a disability certificate
states that the injured has suffered permanent disability to an
extent of 45% of the left lower limb, it is not the same as 45%
permanent disability with reference to the whole body. The extent
of disability of a limb (or part of the body) expressed in terms of a
percentage of the total functions of that limb, obviously cannot be
assumed to be the extent of disability of the whole body. If there
is 60% permanent disability of the right hand and 80% permanent
disability of left leg, it does not mean that the extent of permanent
disability with reference to the whole body is 140% (that is 80%
plus 60%). If different parts of the body have suffered different
percentages of disabilities, the sum total thereof expressed in
terms of the permanent disability with reference to the whole
body, cannot obviously exceed 100%.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 23 of 35 Dt: 27.12.2022
8. Where the claimant suffers a permanent disability as a result of
injuries, the assessment of compensation under the head of loss
of future earnings, would depend upon the effect and impact of
such permanent disability on his earning capacity. The Tribunal
should not mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of earning
capacity. In most of the cases, the percentage of economic loss,
that is, percentage of loss of earning capacity, arising from a
permanent disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume that in all
cases, a particular extent (percentage) of permanent disability
would result in a corresponding loss of earning capacity, and
consequently, if the evidence produced show 45% as the
permanent disability, will hold that there is 45% loss of future
earning capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent (percentage)
of permanent disability will result in award of either too low or too
high a compensation. What requires to be assessed by the
Tribunal is the effect of the permanently disability on the earning
capacity of the injured; and after assessing the loss of earning
capacity in terms of a percentage of the income, it has to be
quantified in terns of money, to arrive at the future loss of
earnings (by applying the standard multiplier method used to
determine loss of dependency). We may however note that in
some cases, on appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of earning capacity as a
result of the permanent disability, is approximately the same as
the percentage of permanent disability in which case, of course,
BVLNC,J MACMA 3024 & 3059 of 2017
Page 24 of 35 Dt: 27.12.2022
the Tribunal will adopt the said percentage for determination of
compensation (see for example, the decisions of this court in
Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10)
SCALE 298 and Yadava Kumar v. D.M., National Insurance Co.
Ltd. - 2010 (8) SCALE 567).
9. 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.
10. Ascertainment of the effect of the permanent disability on the
actual earning capacity involves three steps. The Tribunal has to
first ascertain what activities the claimant could carry on in spite
of the permanent disability and what he could not do as a result
BVLNC,J MACMA 3024 & 3059 of 2017
Page 25 of 35 Dt: 27.12.2022
of the permanent ability (this is also relevant for awarding
compensation under the head of loss of amenities of life). The
second step is to ascertain his avocation, profession and nature of
work before the accident, as also his age. The third step is to find
out whether (i) the claimant is totally disabled from earning any
kind of livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on the activities
and functions, which he was earlier carrying on, or (iii) whether he
was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or lesser
scale of activities and functions so that he continues to earn or
can continue to earn his livelihood. For example, if the left hand of
a claimant is amputated, the permanent physical or functional
disablement may be assessed around 60%. If the claimant was a
driver or a carpenter, the actual loss of earning capacity may
virtually be hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a clerk in
government service, the loss of his left hand may not result in loss
of employment and he may still be continued as a clerk as he
could perform his clerical functions; and in that event the loss of
earning capacity will not be 100% as in the case of a driver or
carpenter, nor 60% which is the actual physical disability, but far
less. In fact, there may not be any need to award any
compensation under the head of `loss of future earnings', if the
claimant continues in government service, though he may be
awarded compensation under the head of loss of amenities as a
consequence of losing his hand. Sometimes the injured claimant
may be continued in service, but may not found suitable for
BVLNC,J MACMA 3024 & 3059 of 2017
Page 26 of 35 Dt: 27.12.2022
discharging the duties attached to the post or job which he was
earlier holding, on account of his disability, and may therefore be
shifted to some other suitable but lesser post with lesser
emoluments, in which case there should be a limited award under
the head of loss of future earning capacity, taking note of the
reduced earning capacity. It may be noted that when
compensation is awarded by treating the loss of future earning
capacity as 100% (or even anything more than 50%), the need to
award compensation separately under the head of loss of
amenities or loss of expectation of life may disappear and as a
result, only a token or nominal amount may have to be awarded
under the head of loss of amenities or loss of expectation of life, as
otherwise there may be a duplication in the award of
compensation. Be that as it may.
11. The Tribunal should not be a silent spectator when medical
evidence is tendered in regard to the injuries and their effect, in
particular the extent of permanent disability. Sections 168 and
169 of the Act make it evident that the Tribunal does not function
as a neutral umpire as in a civil suit, but as an active explorer and
seeker of truth who is required to `hold an enquiry into the claim'
for determining the `just compensation'. The Tribunal should
therefore take an active role to ascertain the true and correct
position so that it can assess the `just compensation'. While
dealing with personal injury cases, the Tribunal should preferably
equip itself with a Medical Dictionary and a Handbook for
evaluation of permanent physical impairment (for example the
Manual for Evaluation of Permanent Physical Impairment for
Orthopedic Surgeons, prepared by American Academy of
BVLNC,J MACMA 3024 & 3059 of 2017
Page 27 of 35 Dt: 27.12.2022
Orthopedic Surgeons or its Indian equivalent or other authorized
texts) for understanding the medical evidence and assessing the
physical and functional disability. The Tribunal may also keep in
view the first schedule to the Workmen's Compensation Act, 1923
which gives some indication about the extent of permanent
disability in different types of injuries, in the case of workmen. If a
Doctor giving evidence uses technical medical terms, the Tribunal
should instruct him to state in addition, in simple non-medical
terms, the nature and the effect of the injury. If a doctor gives
evidence about the percentage of permanent disability, the
Tribunal has to seek clarification as to whether such percentage of
disability is the functional disability with reference to the whole
body or whether it is only with reference to a limb. If the
percentage of permanent disability is stated with reference to a
limb, the Tribunal will have to seek the doctor's opinion as to
whether it is possible to deduce the corresponding functional
permanent disability with reference to the whole body and if so
the percentage.
12. The Tribunal should also act with caution, if it proposed to
accept the expert evidence of doctors who did not treat the injured
but who give `ready to use' disability certificates, without proper
medical assessment. There are several instances of unscrupulous
doctors who without treating the injured, readily giving liberal
disability certificates to help the claimants. But where the
disability certificates are given by duly constituted Medical
Boards, they may be accepted subject to evidence regarding the
genuineness of such certificates. The Tribunal may invariably
make it a point to require the evidence of the Doctor who treated
BVLNC,J MACMA 3024 & 3059 of 2017
Page 28 of 35 Dt: 27.12.2022
the injured or who assessed the permanent disability. Mere
production of a disability certificate or Discharge Certificate will
not be proof of the extent of disability stated therein unless the
Doctor who treated the claimant or who medically examined and
assessed the extent of disability of claimant, is tendered for cross-
examination with reference to the certificate. 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 Medical Board for assessment of the
disability.
13. We may now summarise the principles discussed above :
(i) All injuries (or permanent disabilities arising from injuries), do
not result in loss of earning 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 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 the extent of permanent
disability. The loss of earning capacity is something that will have
BVLNC,J MACMA 3024 & 3059 of 2017
Page 29 of 35 Dt: 27.12.2022
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."
32. In light of the above principles laid down by the Hon'ble Apex
Court, the case of the claimant has to be considered with reference to
the injuries sustained by her in the accident, and the functional
disability suffered by her due to permanent disability caused to her left
hip and foot drop suffered by her, whether she cannot attend her
normal duties as a Homeopathic Doctor due to that functional
disability. Evidence produced by her established that she can attend
to normal duties. There is no evidence to show that she sustained loss
of employment or earnings due to alleged physical disability.
33. But, it is proved that she cannot walk, run fast, squat as she
was doing earlier, and she would suffer residual pain due to foot drop,
and further she requires a complete replacement of hip in future.
Therefore, she will face discomfort throughout her life and certainly
lose certain amenities in life when compared with her peers. Therefore,
her case would fall under the head loss of amenities. She is definitely
BVLNC,J MACMA 3024 & 3059 of 2017
Page 30 of 35 Dt: 27.12.2022
entitled to compensation under the head loss of amenities, instead of
loss of future earnings, on account of permanent disability may be
awarded compensation under the loss of amenities. The Hon'ble apex
Court in Rajkumar's case held that "......In fact, there may not be any
need to award any compensation under the head of `loss of future
earnings', if the claimant continues in government service, though he
may be awarded compensation under the head of loss of amenities as a
consequence of losing his hand....." .
34. The tribunal has lost sight of this aspect. Considering that
claimant is at a young age, her profession as a doctor, other facts and
circumstances discussed regarding her functional disability in
walking, squatting, foot drop and limping, and also considering the
fact that she has to lead her life with these inconveniences and short
comings rest of her life, this court deems it fit to award a sum of
Rs.10,00,000/-(Ten Lakhs) to her under the head loss of amenities,
instead of loss of future earnings due to physical disability.
35. The evidence on record discussed above shows that she was
admitted in the hospital as in-patient in April 2012 and later again in
the month of August, 2012, considering these facts, she is entitled to a
compensation for loss of earnings during the period of treatment for a
period of 6 months, at the rate of Rs.25,000 x 6 = Rs.1,50,000/-.
BVLNC,J MACMA 3024 & 3059 of 2017
Page 31 of 35 Dt: 27.12.2022
36. The claimant made a claim for Rs.3,00,000/- towards
transportation and attendant charges, apart from Rs.3,00,000/-
towards medical expenses. As already stated supra, the petitioner
examined the doctor who treated her and as well as in charge of the
pharmacy of UDAI Hospital to prove Ex.A-7 medical bills, and also
examined the Physiotherapist, who gave physiotherapy treatment to
her to set right the fracture suffered by her. The claimant is entitled to
Rs.3,00,000/- towards medical expenses, transportation and
attendant charges covered by Ex.A-7. As per the evidence of P.W-3,
she needs another operation for replacement of hip, which may require
a sum of Rs.2,00,000/-. Therefore, this amount can be awarded to the
claimant towards future medical expenses, in addition to
Rs.3,00,000/- awarded towards medical expenses.
37. The claimant can be awarded a sum of Rs.1,50,000/- towards
pain, suffering and trauma for the injuries sustained by her in the
accident, and for corresponding operations underwent by her.
38. The Tribunal awarded interest at 7.5% p.a. from the date of
petition, till the date of realisation. I do not find any ground to interfere
with the rate of interest awarded by the Tribunal at 7.5% p.a., from the
date of petition, till the date of realisation, in view of the Apex Court
BVLNC,J MACMA 3024 & 3059 of 2017
Page 32 of 35 Dt: 27.12.2022
judgement in National Insurance Company Limited Vs. Mannat
Johal2.
39. Therefore, the total amount of compensation entitled by the
claimant/petitioner under the following heads would be as under:
Sl.No. Description of the head Amount awarded
in Rs.
1 Pain, suffering and trauma 1,50,000-00
2 Loss of earnings during the period of 1,50,000-00
treatment for 6 months.
3 Medical expenses, transportation and 3,00,000-00
attendant charges
4 Future medical expenses 2,00,000-00
5 Loss of amenities 10,00,000-00
Total = 18,00,000-00
Thus, the amount entitled by the claimant towards just compensation
is Rs.18,00,000/-. The Tribunal awarded Rs.16,48,000/- only.
Therefore, the order of the Tribunal is liable to be modified partly.
Accordingly, this point is answered.
2019 ACJ 1849 (SC)
BVLNC,J MACMA 3024 & 3059 of 2017
Page 33 of 35 Dt: 27.12.2022
40. POINT No.3: To what relief?
In the light of findings on points No.1 and 2, I am of the
considered opinion that it is a fit case to modify partly the order
passed by the Tribunal.
41. In the result, the appeal in MACMA No.3024/2017 filed by the
claimant is partly allowed, by modifying the award dated 01.09.2017
passed in M.V.O.P.No.89/2014 on the file of Motor Accidents Claims
Tribunal-cum-III Addl. District Judge, Ananthapuram. It is held that
the appellant/claimant is entitled to a compensation of Rs.18,00,000/-
(Rupees Eighteen Lakhs only), instead of Rs.16,48,000/-, with interest
@ 7.5% p.a. from the date of petition till the date of realisation, against
the respondents 1, 2 and 5 only with joint and several liability.
Respondents 3, 4 and 6 are exonerated from the liability. There shall
be no order as to costs.
42. Consequently, the appeal in MACMA No.3059/2017 filed by the
2nd respondent/Insurance Company is dismissed. There shall be no
order as to costs.
43. The 2nd respondent/Insurance Company is directed to the
deposit the compensation amount of Rs.18,00,000/- (Rupees Eighteen
Lakhs only) awarded in MACMA No.3024/2017 along with accrued
BVLNC,J MACMA 3024 & 3059 of 2017
Page 34 of 35 Dt: 27.12.2022
interest thereon, within one month from the date of judgment. The
amount already deposited, be deducted from the amount to be
deposited. On such deposit, the Appellant/claimant is permitted to
withdraw Rs.18,00,000/- (Rupees Eighteen Lakhs only) along with the
accrued interest thereon.
As a sequel, miscellaneous applications pending, if any, shall
stand closed.
_________________________________
B.V.L.N.CHAKRAVARTHI, J
27.12.2022
psk
BVLNC,J MACMA 3024 & 3059 of 2017
Page 35 of 35 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.3024 & 3059 OF 2017
27th December, 2022
psk
