Ponnamalli Bhargav Kishore ... vs M. Venkatesulu, Chittoor Dist ...
2022 Latest Caselaw 8661 AP

BVLNC,J                                                 MACMA 3074 of 2016
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       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

                    M.A.C.M.A.No.3074 OF 2016

JUDGMENT:

This appeal is preferred by the petitioner/claimant,

challenging the award dated 09.08.2016 passed in

M.V.O.P.No.122/2012 on the file of Motor Accidents Claims Tribunal-

cum-VIII Addl.District Judge, Chittoor, wherein the Tribunal while

partly allowing the petition, awarded compensation of Rs.3,78,227/-

with interest @ 7.5% p.a., from the date of petition, till the date of

deposit, for the injuries sustained by the petitioner in a motor

accident.

2. For the sake of convenience, the parties are arrayed as parties in

the lower Court.

3. As seen from the record, originally the petitioners filed an

application U/s.166 of Motor Vehicles Act, 1988 (for brevity "the Act")

claiming compensation of Rs.15,00,000/- on account of the injuries

sustained by the petitioner in a motor vehicle accident that occurred

on 02/03.04.2011 at about 12.00 mid night.

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4. The facts show that on the intervening night of 02/03.04.2011

at about 12.00 mid night the petitioner and his father went to Chittoor

Town to purchase tablets for his mother. The petitioner was the pillion

rider and when they reached near VSR Engineering Works on Puttur-

Chittor road, a rally with scooters came from Chittoor Town in view of

the Indian Cricket Team having had won the world cup in a cricket

match and that the 1st respondent being the driver of the crime

vehicle, drove the same in a rash and negligent manner, and dashed

the two wheeler of the petitioner, and as a result, the petitioner fell

down and sustained injuries on his left eye, left hand, and he was

shifted to a Govt. Hospital, Chittoor, and from there he was shifted to

CMC Hospital, Vellore, and from there to MIOT Hospital, Chennai. The

petitioner incurred huge expenses towards treatment and medicines.

A case was registered in Cr.No.31/2011 by SHO, Traffic P.S., Chittoor

against the driver of the crime vehicle. Subsequently, another injured

Pavan Kumar died and the section of law was altered to 304-A and 338

of Indian Penal Code. Due to injuries, the petitioner became a

disabled person. Prior to the accident, the petitioner was hale and

healthy and due to the accident, he suffered with a severe pain.

5. Before the Tribunal, the 2nd respondent/Insurance Company

filed written statement resisting, while traversing the material BVLNC,J MACMA 3074 of 2016 Page 3 of 32 Dt: 11.11.2022

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, nature of injuries, alleged

permanent disability, medical expenditure, and liability to pay

compensation to the petitioner, and contended that the petitioner

fabricated the medical bills to claim compensation. The driver of the

crime vehicle had no valid driving license at the time of accident. The

claim of the petitioner is very high and excessive. The 1st

respondent/driver of crime vehicle remained exparte.

6. On the strength of the pleadings of both parties, the Tribunal

framed the following issues:

1. Whether the accident occurred due to the rash and negligent driving of the Bolero bearing No.AP 03 AN 0767?

2. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?

3. To what relief?

7. To substantiate their claim, the petitioner got examined P.Ws-1

to 4 and got marked Exs.A-1 to A-16 and Exs.X-1 and X-2. On behalf

of the 2nd respondent, no oral or documentary evidence was adduced.

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8. The Tribunal, taking into consideration the evidence of P.Ws-1 to

4, coupled with Exs.A-1 to A-16 and Exs.X-1 and X-2, held that the

accident took place due to the rash and negligent driving of the 1 st

respondent/driver of the Bolero bearing No.AP 03 AN 0767, and

further, taking into consideration of the evidence of P.Ws-1 to 4

corroborated by Exs.A-1 to A-16 and Exs.X-1 and X-2, awarded a sum

of Rs.3,78,227/- with interest @ 7.5% p.a. from the date of petition, till

the date of deposit.

10. The plea of the 2nd respondent/Insurance Company is that the

petitioner fabricated the medical bills to claim compensation. The

driver of the crime vehicle had no valid driving license at the time of

accident.

11. The Tribunal considered the evidence on record, and based on

the contentions of both parties, held that the accident occurred due to

the rash and negligent driving of the driver of the crime vehicle.

12. The Tribunal after considering the evidence of P.Ws-1 to 4

coupled with Exs.A-1 to A-16 and Exs.X-1 and X-2, awarded an

amount of Rs.2,78,227/- towards medicines and treatment;

Rs.10,000/- towards transportation; Rs.10,000/- towards extra

nourishment; Rs.5,000/- towards damages and clothes and articles;

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Rs.75,000/- towards pain and suffering for three grievous injuries;

total Rs.3,78,227/- to the petitioner.

13. The contention of the appellant/claimant is that he made a

claim for Rs.15,00,000/- towards compensation for the injuries

suffered by him in the accident, but the Tribunal erroneously awarded

a sum of Rs.3,78,227/- only, and that the Tribunal failed to appreciate

that the petitioner was earning Rs.15,000/- per month on the date of

accident, but the Tribunal failed to appreciate the evidence of doctors

examined by the claimant regarding the treatment provided to him

from the date of accident, till September for a period of six months,

and thereafter also, and the Tribunal did not award any amount

towards loss of earnings during the period of treatment, and the

Tribunal failed to appreciate the bills produced by the claimant

towards expenditure incurred for the treatment and awarded only part

of the amount, and the Tribunal failed to appreciate that the claimant

suffered partial permanent disability on account of the injuries, and

that he underwent major operation, bone grafting and did not award

any amount towards loss of future earnings, and therefore, the

amount awarded by the Tribunal is very low and not a just

compensation in the circumstances of the case.

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14. The learned counsel for the appellant/claimant vehemently

argued that though the evidence on record shows that the appellant

has taken treatment, and could not do any work for a period of six

months from the date of accident i.e., 02.04.2011 till the end of

September, 2011 in CMC Hospital, Vellore and Vijaya Hospital,

Chennai, the Tribunal did not grant any amount towards loss of

earnings during the period of treatment. He further strenuously

contended that the Tribunal did not appreciate Ex.A-12 disability

certificate issued by P.W-4 an Orthopaedic Surgeon are shows that the

appellant suffered partial permanent disability of 40% on account of

the injury sustained by him in the accident to the limbs, which is

preventing the appellant from doing the work, which he was doing

earlier to the date of accident, and the Tribunal ought to have granted

compensation for loss of future earnings on account of partial

permanent disability, and the rejection of evidence of P.W-4 and Ex.A-

12 by the Tribunal was not based on sound reasons, and the

Insurance Company did not adduce any contra evidence, and in that

view of the matter, the appellant is entitled to compensation towards

loss of future earnings on account of the partial permanent disability

as per Ex.A-12 certificate issued by P.W-4. He further submitted that

the Tribunal failed to consider the medical bills produced by the BVLNC,J MACMA 3074 of 2016 Page 7 of 32 Dt: 11.11.2022

claimant properly and examined P.W-2 and P.W-3 to prove the same,

and therefore, the claimant is entitled to the amount covered by the

said medical bills under Ex.A-6, Ex.A-7 & Ex.A-9 issued by CMC

Hospital, Vellore, MIOT Hospital, Chennai and Vijaya Hospital,

Chennai, and the claimant is also entitled to a compensation towards

transport charges and attendant charges as covered by Ex.A-10 and

Ex.A-11 produced by the claimant.

15. The learned counsel for appellant in support of his arguments

that the disability certificate issued by a private doctor also can be

considered, relied upon the following judgments:

1. In the case of Charan Singh Vs. G.Vittal Reddy and others in LPA No.261 of 201 of High Court of Andhra Pradesh.

2. In the case of Syed Saleem Vs. Abdul Shukur and others in CMA Nos.164, 1257 & 1281 of 2000 of High Court of A.P.

3. In the case of the Branch Manager, Oriental Insurance Company Limited Vs. Durgam Hussainaiah in CMA No.284 of 2004 of High Court of Andhra Pradesh.

4. In the case of A.Shyam Sunder Reddy Vs. Arun Kumar Goyal in MACMA No.1526/2007 & 2644/2014 of High Court of Telangana.

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16. The learned counsel for the respondent/Insurance Company

opposed the contention of the appellant on the ground that the

evidence of P.W-2 and P.W-3 doctors, who treated the claimant in CMC

Hospital, Vellore and Vijaya Hospital, Chennai, respectively as claimed

by the appellant would go against the evidence of P.W-4, who issued

the disability certificate after three years of the accident, and after

filing of the case by the claimant for compensation was only obtained

for the sake of compensation, and the evidence of P.W-2 and P.W-3

doctors examined by the petitioner, is against the contention of the

petitioner, and therefore, the Insurance Company need not adduce any

contra evidence, as in the cross-examination of P.W-2 and P.W-3 as

well as P.W-4, the Insurance Company is able to show that the

claimant did not suffer any disability and he cannot attend the work as

he was doing prior to the date of accident, and therefore, there is no

functional disability suffered by the claimant, and as such, he is not

entitled to any compensation towards loss of future earnings on

account of physical disability. The Hon'ble Apex Court in the case of

Rajkumar Vs. Ajay Kumar and another has dealt the issue of

deciding physical disability and the certificates issued by private

doctors in detail, and in view of the principles laid down by the Hon'ble

Apex Court in the said judgment, the judgments relied by the learned BVLNC,J MACMA 3074 of 2016 Page 9 of 32 Dt: 11.11.2022

counsel for the appellant/claimant will not help the case of the

appellant.

17. In the light of above rival contentions, the points for

consideration are:

1. Whether the Tribunal erred in not accepting the evidence of the appellant, P.W-4 doctor, who issued Ex.A-12 disability certificate? If so, whether the appellant is entitled to compensation towards loss of future earnings on account of disability?

2. Whether the claimant is entitled to compensation towards loss of earnings during the period of treatment? If so, what is the quantum to be awarded?

3. Whether the claimant is entitled to the medical expenditure as claimed by him?

4. Whether the claimant is entitled to the amounts towards compensation under other heads as claimed by him?

18. POINT No.1: The accident in the case occurred on 02.04.2011.

The claim petition was filed in November, 2011. It is the case of the

petitioner that he has taken treatment in CMC Hospital, Vellore, and

Vijaya Hospital, Chennai, and as per his case, he has taken treatment

in the said hospitals for nearly six months from the date of accident,

till September, 2011.

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19. The appellant/claimant in the claim petition, at column No.10 to

13 mentioned that he received fracture injury to left leg, injury on left

eye and left hand, and he was treated in Government Hospital,

Chittoor, CMS Hospital, Vellore, MIOT Hospital, Chennai, and Vijaya

Hospital, Chennai, for five months and in the column relating to

disability for work if any caused, he mentioned it as 'permanent

disability', and in page 5 of the claim petition, he is suffering from

severe pain and unable to walk and his both bones were severely

fractured, and muscles with skin were damaged, and he sustained

damage to his bright future and career, and that he lost income, and

he is unfit for the post of Soldier in Indian Defence Services

20. The appellant/claimant in his evidence, in the chief-examination

affidavit, stated that he studied Intermediate, and joined in Renault

Nissan Car Manufacturing Company at Chennai and drawing a salary

of Rs.15,000/- per month, and he filed application to join engineering

course, and interested to join in Defence Service, and he went to CRPF

Centre, Avadi, Chennai for selections for the post of Central Industrial

Security Force Constable, and he appeared for all the tests, and on the

said night, he met with the accident, and in that accident, his left leg

was damaged, and therefore, he lost the opportunity.

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21. The Appellant/claimant in order to establish his case that he is

working in Renault Nissan Car Manufacturing Company at Chennai,

did not produce any proof, nor examined any official of the company.

He did not produce any evidence about the salary paid to him by the

said car manufacturing company. The appellant did not produce any

evidence that he has appeared for CISF Constable post.

22. The appellant in the cross-examination admitted that the CMS

Hospital, Vellore, and Vijaya Hospital, Chennai have not issued any

disability certificate, and he did not ask them for disability certificate.

He did not give any reasons for not taking disability certificates from

the said two super speciality hospitals, though, he underwent

treatment in the said hospitals in the year 2011.

23. It is pertinent to note down that Ex.A-12 certificate was issued

by one Mr.Dr.R.Sahnmuga Sundaram/P.W-4 on 23.09.2014. It is also

pertinent to note down that the appellant filed the claim petition in the

year 2011. The petitioner filed his chief-examination affidavit on

26.06.2014. Therefore, it is very clear that Ex.A-12 came into

existence subsequent to the chief-examination affidavit filed by the

appellant in the Tribunal. The appellant in the cross-examination

deposed that he went to Dr.R.Shanmuga Sundaram in the year 2011

and on the same day, he issued disability certificate, and though he BVLNC,J MACMA 3074 of 2016 Page 12 of 32 Dt: 11.11.2022

obtained certificate in the year 2011, he has not filed the same till

27.01.2016.

24. The appellant examined Dr.R.Shanmuga Sundaram as P.W-4.

In the chief-examination, he stated that on 23.09.2014 he examined

P.W-1 and issued Ex.A-12 certificate upon verification of discharge

summary of CMC Hospital, Vellore, and Vijaya Hospital, Chennai and

X-rays produced by the appellant, and he found the disability suffered

by the appellant is at 40%, which is partial permanent disability in

nature. In the cross-examination, he deposed that he did not mention

the age of the injuries in Ex.A-12, and that the injuries referred by him

were caused by the accident, and he did not mention the date of

discharge summary of CMC Hospital, Velore, and Vijaya Hospital,

Chennai, and he did not mention about the date of X-rays verified by

him, and he admitted that in the certificate, he has not mentioned the

serial number of the register. He also admitted that as per MCI

guidelines, he has to maintain register while issuing certificate, and he

shall mention the serial number in the register of certificate.

25. The above facts and circumstances elicited by the Insurance

Company in the cross-examination of P.W-1 and P.W-4 lead to an

inference that Ex.A-12 came into existence after the evidence of the

appellant for the best reasons known to the appellant and P.W-4.

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26.    P.W-2 is Dr.Alfred Cyril Roy from CMC Hospital, Vellore.           He

deposed that due to the injured he may not do heavy works like

running, jogging, jumping etc., which he was able to do before the

injury, and he is unable to sit on Indian toilet to attend nature calls,

and as per his evidence, the appellant has suffered open type B3 bone

fractures left leg, degloving injury of about 20 cm x 8 cm. over the left

leg, extending from medical therd of the leg to the medial aspect of left

foot, laceration left forearm, laceration over left face lateral to the left

eye and head injury, and emergency operation was conducted to fix

the rotation flop cover of the left leg on 04.04.2011 and another

operation was conducted on 06.04.2011 debridement and skin

grafting, and then he was discharged on 29.04.2011.

27. P.W-3 is Dr.C.Rajasekhara Reddy of Vijaya Hospital, Chennai.

As per his evidence, appellant was admitted in their hospital on

11.07.2011, and he was diagnosed with comminuted fracture both

bones left leg, and the patient underwent bone grafting to the left leg

on 13.07.2011, and he was discharged on 18.07.2011, and patient

was again admitted in their hospital on 26.09.2011 and underwent

external legator removal on 26.09.2011, and later P.O.P. was applied

on 28.09.2011, and he was discharged in 29.09.2011, and patient had

difficulty in squatting, and to use Indian toilet, and patient cannot do BVLNC,J MACMA 3074 of 2016 Page 14 of 32 Dt: 11.11.2022

athletic level of activities and participation in sports and games

because of the injury, and he had permanent disfiguration to his left

leg due to the injury, and it may require plastic surgery in future. In

the cross-examination, he deposed that the injuries will not cause any

difficulty for the petitioner in attending normal work.

28. Therefore, the above evidence of both doctors, who attended the

appellant in CMS Hospital, Vellore, and Vijaya Hospital, Chennai,

respectively shows that on account of the injuries sustained by the

appellant, he cannot do athletic level of activities and participation in

sports and games, and he is having difficulty in using Indian toilets,

but their evidence shows that the injuries will not cause any difficulty

for the petitioner in attending normal work.

29. As per the case of the petitioner, he was working in car

manufacturing company at the time of accident. No evidence is

forthcoming from the appellant that he is unable to attend the same

work due to the injuries sustained by him, or that he was asked to do

work in a lower cadre, and that thereby, he suffered loss of earnings,

on account of the injuries sustained by him in the said accident.

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30. The Hon'ble Apex Court in Raj Kumar Vs. Ajay Kumar and

another1 held in paragraphs 4 to 13 as follows:

"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
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       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 3074 of 2016 Page 17 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 18 of 32 Dt: 11.11.2022

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%.

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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 3074 of 2016 Page 20 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 21 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 22 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 23 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 24 of 32 Dt: 11.11.2022

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 3074 of 2016 Page 25 of 32 Dt: 11.11.2022

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."

31. In the light of above principles laid down by the Hon'ble Apex

Court, the evidence of P.W-4 and Ex.A-12 will not help the case of the

appellant, as the evidence of the appellant and P.W-4 shows that

Ex.A-12 came into existence, subsequent to the evidence of appellant

for the reasons best known to the appellant and P.W-4. More so, in

the light of evidence of P.W-2 and P.W-3, who deposed that the

appellant could do normal activities, other than athletic level of

activities and participation in sports and games and having

inconvenience in squatting and sitting on Indian toilet. Under the said

circumstances, there is no evidence before the Court to show that the

appellant has suffered functional disability with reference to body or

limb, and as a result, he suffered loss of earnings. In that view of the

matter, the rulings relied by the learned counsel for the appellant,

have no application to the facts of the case on hand, as Ex.A-12 in the

case is doubtful, in view of the evidence of the appellant as well as BVLNC,J MACMA 3074 of 2016 Page 26 of 32 Dt: 11.11.2022

P.W-4. Accordingly, I hold this point against the appellant that he is

not entitled to any compensation towards loss of future earnings.

32. POINT No.2: The evidence of the appellant, P.W-2 and P.W-3,

and the documents produced by him issued by the said hospitals show

that the appellant underwent treatment in the said hospitals for nearly

six months from the date of accident, till September 2011. Therefore,

he is entitled to compensation towards loss of earnings during the

period of treatment.

33. The contention of the appellant is that he was working in car

manufacturing company at Chennai, and earning Rs.15,000/- per

month, but he did not adduce any evidence to prove the same. The

accident occurred in the year 2011. In that view of the matter, his

income can be considered at Rs.150/- per day and Rs.150 x 30 =

Rs.4,500/= per month. Therefore, he is entitled at Rs.4,500 x 6 =

Rs.27,000/- towards loss of earnings during the period of treatment,

apart from the compensation awarded by the Tribunal. Accordingly, I

hold this point in favour of the appellant that he is entitled to

Rs.27,000/- towards loss of earnings during the period of treatment, in

addition to the compensation awarded by the Tribunal.

 BVLNC,J                                           MACMA 3074 of 2016
Page 27 of 32                                      Dt: 11.11.2022




34.    POINT No.3:    The Tribunal granted a sum of Rs.2,78,227/-

towards medical expenditure and treatment.       The contention of the

appellant is that he has incurred Rs.4,50,200.94 paise towards

medical expenditure, and the same is proved by bills produced by him.

The claimant produced Ex.A-6, Ex.A-7 and Ex.A-9 bills issued by CMS

Hospital, Vellore, MIOT Hospital, Chennai, and Vijaya Hospital,

Chennai, for a sum of Rs.2,01,987/-, Rs.2,900/- and Rs.1,79,318/-

respectively. P.W-3 in his evidence deposed that Ex.A-9 bills were

issued by their hospital. Nothing was elicited in the cross-examination

of the Insurance Company to prove that the amount covered by Ex.A-9

bills was not incurred by the appellant.

35. P.W-3 in his evidence deposed that Ex.A-9 is the bills issued by

their hospital for the treatment taken by the patient in their hospital.

The total amount covered by Ex.A-9 bills is Rs.1,79,318 paise as per

evidence of the appellant. The Tribunal in its order considered only

Ex.A-6 and Ex.A-7 bills and awarded a sum of Rs.2,78,227/-, though

referred Ex.A-9 medical bills issued by Vijaya Hospital, Chennai. In

the said circumstances, the appellant is entitled to amount covered by

Ex.A-9 medical bills also, as they are proved by the claimant through

the evidence of P.W-3. Hence, the claimant is entitled to a sum of

Rs.1,79,318/-, apart from Rs.2,78,227/- awarded by the Tribunal BVLNC,J MACMA 3074 of 2016 Page 28 of 32 Dt: 11.11.2022

under the head medical expenditure and treatment. Accordingly, I

hold this point in favour of the appellant that he is entitled to

Rs.1,79,318/- towards medical expenditure and treatment, in addition

to Rs.2,78,227/- already awarded by the Tribunal.

36. POINT No.4: As per judgment of the Hon'ble Apex Court in the

case of Raj Kumar Vs. Ajay Kumar and another, in the case of

injuries, compensation can be awarded for the loss of amenities

(and/or loss of prospects of marriage) covered by the main head non-

pecuniary damages (general damages). In the case on hand, the

evidence of P.W-2 and P.W-3 shows that on account of the injuries

sustained by the appellant/claimant, he is facing inconvenience, and

he cannot squat, and he cannot sit on Indian toilet to attend nature

call, and further, he cannot do athletic level activities like participation

in sports and games. Considering the said circumstances,

compensation can be awarded under the head of loss of amenities.

The Tribunal did not award any amount under the said head. The

appellant is aged about 19 years at the time of accident. As per

evidence of P.W-2, the appellant sustained open type B3 both bone

fractures left leg, and he underwent debridement and skin grafting. As

per evidence of P.W-3, the appellant had permanent disfigurations to

his left leg due to injury sustained in the said accident, and it may BVLNC,J MACMA 3074 of 2016 Page 29 of 32 Dt: 11.11.2022

require plastic surgery in future. Therefore, in my considered opinion,

a sum of Rs.3,00,000/- (Rupees Three Lakhs) can be awarded to the

appellant under the head loss of amenities, in addition to the

compensation awarded by the Tribunal. Accordingly, I hold this point

in favour of the appellant that he is entitled to Rs.3,00,000/- (Rupees

Three Lakhs) under the head loss of amenities, in addition to the

compensation awarded by the Tribunal.

37. The Tribunal awarded interest at 7.5% p.a. from the date of

petition, till the date of deposit. 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 deposit.

38. In the light of above discussion, I am awarding a sum of

Rs.27,000/- towards loss of earnings during the period of treatment,

Rs.1,79,318/- towards medical expenditure and treatment in addition

to Rs.2,78,227/- already awarded by the Tribunal, and Rs.3,00,000/-

(Rupees Three Lakhs) under the head of loss of amenities. Therefore, the

total amount of compensation awarded in the appeal comes to

(Rs.27,000 + 1,79,318 + 3,00,000) Rs.5,06,318/-, in addition to

Rs.3,78,227/- compensation awarded by the Tribunal. Hence, the total

amount of compensation entitled by the claimant is (Rs.5,06,318 + BVLNC,J MACMA 3074 of 2016 Page 30 of 32 Dt: 11.11.2022

3,78,227) Rs.8,84,545/(Rupees eight lakhs eighty four thousand five

hundred and forty five only). The record reveals that the petitioner

obtained court fee exemption certificate from District Legal Services

Authority, Chittoor on 01.11.2022. Therefore, the petitioner has to

pay the required court fee under Rule 475(2) of A.P.M.V.Rules, 1989.

39. In the result, the appeal is partly allowed, the impugned order is

set aside, and it is held that the appellant/claimant is entitled to a

total compensation of Rs.8,84,545/-/(Rupees eight lakhs eighty four

thousand five hundred and forty five only) with interest @ 7.5% p.a.,

from the date of petition, till the date of deposit. There shall be no

order as to costs. The petitioner has to pay the required court fee

under Rule 475(2) of A.P.M.V.Rules, 1989.

40. The 2nd respondent/Insurance Company is directed to the

deposit the compensation amount of Rs.8,84,545/- with accrued

interest thereon, within one month from the date of judgment. In the

event of 2nd respondent/Insurance Company deposited some amount

already, the said amount has to be excluded, and the balance amount

shall be deposited within one month from the date of judgment.

On such deposit, the appellant/claimant is permitted to withdraw the

said compensation amount with accrued interest thereon.

The appellant/claimant is directed to pay the required court fee before BVLNC,J MACMA 3074 of 2016 Page 31 of 32 Dt: 11.11.2022

the Tribunal, as per Rule 475 (2) of A.P.M.V.Rules 1989, within one

month from the date of receipt of certified copy of judgment.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

__________________________________ B.V.L.N.CHAKRAVARTHI, J.

11.11.2022

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 BVLNC,J                                  MACMA 3074 of 2016
Page 32 of 32                             Dt: 11.11.2022




       HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI




                M.A.C.M.A.No.3074 OF 2016




                   11th November, 2022
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