Andhra Pradesh High Court - Amravati

Pentimani Ramana vs S.Sekhar 2 Ors on 7 February, 2023

          HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                    M.A.C.M.A. No. 487 OF 2015

JUDGMENT:

1. Aggrieved by the judgment and decree dated 03.12.2014 in

M.V.O.P. No.813 of 2012 passed by the Chairman, Motor Accidents

Claims Tribunal-cum-District Judge, Vizianagaram (for short, "the

tribunal"), whereby the tribunal awarded compensation of

Rs.46,239/- with interest at 7.5% from the date of petition till reali-

zation against respondents 1 to 3 jointly and severally, the claimant

has preferred the present appeal.

2. For convenience, the parties herein will be referred to as per their

rankings in the M.V.O.P.

3. The claimant filed a petition under Section 166 of the Motor Vehi-

cles Act, 1988, for compensation of Rs.3,00,000/- on account of

the injuries sustained in a motor vehicle accident that occurred on

15.03.2012.

4. The claimant's case is that on 15.03.2012, at about 5.00 p.m.,

when the claimant and his relatives travelling from Peda Thadivada

to Denkada, the first respondent drove his car bearing No. AP 37 C

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7766 (hereinafter referred to as the "offending vehicle"), in rash and

negligent manner and at high speed without blowing the horn,

dashed the claimant's motorcycle. The claimant fell on the road and

sustained injuries. Immediately, he was taken to the Government

Headquarters Hospital, Vizianagaram, obtained treatment there till

25.03.2012, thereafter obtained treatment at Tirumala Nursing

Home, Vizianagaram, as inpatient. The claimant's further case is

that since he sustained injuries in the accident occurred due to the

rash and negligent driving of the first respondent, claims compen-

sation Rs.3,00,000/- for the injuries sustained by him against the

driver, owner, and insurer of the offending vehicle.

5. Respondents 1 and 2, offending vehicle's driver and owner, have

remained ex-parte.

6. The third respondent, the offending vehicle's insurer, filed its coun-

ter, denying the allegations in the petition, inter alia, contended

that the accident not occurred due to the negligence of the first re-

spondent and the second respondent violated the policy's terms

and conditions, and hence it is not liable to pay any compensation.

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7. Based on the pleadings, the tribunal framed relevant issues. To

substantiate the claim, during the trial, on behalf of claimants,

P.Ws. 1 and 2 were examined and were marked Exs. A.1 to A.9 and

Ex.X.1. On behalf of the second respondent, no oral evidence was

adduced, but the policy copy was marked under Ex.B.1.

8. After appreciation of oral and documentary evidence, the tribunal

held that the accident occurred due to the rash and negligent driv-

ing of the offending vehicle's driver and awarded compensation

Rs.46,239/- together with interest @ 7.5% p.a. from the date of pe-

tition till the date of realization.

9. I have heard the learned counsel representing both parties.

10. In the grounds of appeal, learned counsel for the appel-

lant/claimant contended that the tribunal erred in not considering

the disability suffered by the claimant, even though the Member,

District Medical Board, issued the disability certificate to the

claimant duly examining and so also did not award transportation

charges, extra nourishment and loss of income.

11. Per contra, learned counsel appearing for the third respondent has

supported the findings and observations of the tribunal.

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12. Upon hearing the argument of both the learned counsel and hav-

ing perused the record, the point that has arisen for consideration

is, Whether the quantum of compensation awarded by the tribu-

nal is just and reasonable?

POINT:

a. The tribunal's findings that the accident occurred on account of

first respondent's negligent driving and the claimant sustained in-

juries in the said accident are not disputed by filing a cross-appeal

or cross-objection. Hence these findings have attained finality.

b. The tribunal's finding that the policy marked under Ex.B.1 was in

force; and that the third respondent is liable to indemnify the sec-

ond respondent are also not disputed in this appeal. It is the evi-

dence of P.W.1 that he sustained simple and grievous injuries in-

cluding a fracture of right tibia, immediately he was taken to the

District Headquarters Hospital, Vizianagaram, where he obtained

treatment till 25.03.2012, thereafter taken to Tirumala Nursing

Home, where he obtained treatment as an inpatient from

25.03.2012, the operation was conducted on 26.03.2012, and was

discharged on 23.04.2012. The tribunal considered the evidence of

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P.W.1 regarding he sustained injuries and his evidence is not dis-

puted by the respondents. To prove the nature of treatment under-

gone, the claimant adduced the evidence of Dr. K.V.Murali Mohan,

Civil Surgeon in Government Headquarters Hospital, Vizianagaram,

as P.W.2. According to his evidence, the claimant appeared before

the District Medical Board on 21.06.2014 on seeing the latest X-ray

and wound certificate. Upon clinical examination, the doctor opined

that the claimant sustained a fracture of the right tibia, and im-

plants were also present and thereby assessed disability at 20%

partial and permanent and also testified that the claimant requires

another operation to remove implants. He further testified that due

to the disability, the claimant cannot climb trees as he did prior to

the accident. In the cross-examination, P.W.2 deposed that he did

not treat the claimant previously. As seen from the record, the

claimant did not choose to examine the doctor who treated him.

c. The tribunal observed that P.W.2, a Member of the Medical Board

issued Ex.A.7. In the absence of examination of the doctor who

treated the claimant, the disability assessed by P.W.2 cannot be

taken into consideration. Considering the nature of the injuries

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sustained by the claimant, the tribunal awarded an amount of

Rs.46,239/-. The tribunal has not awarded compensation under

the head disability only the ground that the doctor who treated the

claimant was not examined. The tribunal has not given any reason

as to why he did not consider the disability certificate issued by the

doctor, who happened to be a Member of the Medical Board.

d. In Raj Kumar Vs. Ajay Kumar1, the Apex Court, while dealing with

the assessment of disability, held that:

"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 re- fers 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 re- covery which is likely to remain for the remaining 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 in- ability to perform all the duties and bodily functions that he could perform before the accident. However, he can perform some of them and is still able to en-

gage in some gainful activities. Total permanent disability refers to a person's inability to perform

2011 ACJ Page 1

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any avocation or employment-related activities due to the accident.

7....

8. Where the claimant suffers a permanent disability due to injuries, the assessment of compensation under the head of loss of future earnings would de- pend 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 cases, the percentage of economic loss, the loss of earning ca- pacity arising from a permanent disability, will dif- fer from the percentage of permanent disabil- ity.Therefore, the tribunal must first decide whether there is any permanent disability, if so, the extent of such permanent disability. This means that the tri- bunal should consider and decide concerning the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or per- manent partial disablement, (iii) if the disablement percentage is expressed concerning 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 disa- bility, 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, it will proceed to ascertain its extent. Af- ter the tribunal ascertains the actual extent of the 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.

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10....

11....

12....

13. We may now summarize 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 concerning the person's whole body cannot be assumed to be the percentage of loss of earning capacity. To put it differ- ently, 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, based on evidence, concludes that the percentage of loss of earning capacity is the same as the 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 re- gard to the extent of permanent disability. The loss of earning capacity is something that will have to be as- sessed by the tribunal concerning the evidence in its entirety.

(iv) The same permanent Disability may result in dif- ferent percentages of loss of earning capacity in dif- ferent persons, depending upon the nature of profes- sion, occupation or job, age, education and other fac- tors."

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e. In A.Chalapathi Vs. Satyanarayana N.Nuwal and oth-

ers2 this Court held that,

"The evidence of qualified orthopaedic surgeon can be accepted unless the court finds evidence of the doctor not worthy of acceptance by giving cogent reasons. Opinion of a qualified doctor, that too the doctor who conducted surgery and treated patient, cannot be dis- credited."

f. Following the principles of law laid down by the Apex Court and

this Court, I deem it appropriate that the disability certificate,

Ex.A.7, issued by the Member of the Medical Board can be consid-

ered. Furthermore, according to the evidence of P.W.2, the claim-

ant could not climb toddy trees, and could not attend the duties as

he did prior to the accident, due to the disability. As such, this

Court views that the claimant sustained partial permanent disabil-

ity. It is the case of the claimant that he is a toddy tapper and used

to earn Rs.300/- per day. However, he has not placed any evidence

to prove the actual earnings. In the absence of proof of the earn-

ings, the Apex Court, in the case of Lakshmi Devi and others vs

2010 (4) ALD 217

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Mohammad Tabber3 held that, in today's world, even a common

labour can earn Rs.100/- per day. Following the principle laid

down by the Apex Court, this court is inclined to consider the

monthly earnings of the claimant at Rs.3,000/-. Following the

monthly earnings, 40% of the additional income should be the war-

rant towards future prospects in view of the principle laid down by

the Karnataka High Court in Gopalappa Vs. Kanduluru Sankara

Reddy and another4 wherein it was held that,

"...in view of the decision of the Apex Court in Pappu Deo Yadav vs Naresh Kumar, 2020 ACJ 2695 (S.C.), the claimant is entitled to an addition of 40% of the as- sessed income towards prospects."

g. Accordingly, this court assessed the monthly earnings, including

the future prospectus, at Rs. 4,200/- (Rs. 3,200 + 1,200). P.W.2

testified that the functional disability of the claimant was 20%. The

claim petition mentions that the claimant was 20 years old, and the

disability certificate, Ex.A.7, noted the claimant's age as 21 years.

Therefore, this court considers the age of the claimant as men-

tioned in the disability certificate, Ex.A.7. The multiplier for the

2008(12) SCC 165

2022 ACJ 1427

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person age groups of 15 to 20 and 21 to 25 years is "18," as provid-

ed by the Apex Court in Sarala Verma v. Delhi Transport Corpo-

ration 5 . Considering the evidence of P.W.2, this court computed

the loss of earnings due to the disability sustained by the claimant

at Rs. 1,81,440/- (4,200 x 12 x 18 x 20%).

h. The compensation awarded by the tribunal under the other heads

is not questioned by filing cross-appeal or cross-objections. On pe-

rusal of the documents relied on by the tribunal, this court views

that the tribunal awarded just compensation Rs.46,239/- under

the other heads. As the tribunal not awarded under the head of

disability, in view of the foregoing discussion, this court believes

that the claimant is entitled to the compensation an amount of

Rs.1,81,440/- under the head of disability. In all, the claimant is

entitled to an amount of Rs.2,27,679/- (46,239 + 1,81,440). Ac-

cordingly, the point is ordered.

13. In the result, the appeal is partly allowed without costs, enhancing

the compensation amount from an amount of Rs.46,236/- to an

amount of Rs.2,27,679/- (Rupees two lakhs, twenty seven thou-

2009 ACJ 1298

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sand, six hundred and seventy nine only) with interest as awarded

by the tribunal against the respondents. The respondents are di-

rected to deposit the compensation amount, excluding the amount

deposited if any, within two months from the date of receipt of a

copy of this order. The claimant is permitted to withdraw the entire

compensation amount on filing appropriate application before the

tribunal.