Alluri Kotaiah vs V. Kasiviswanadham and Another

S. Dasaratharama Reddy, J.—The injured-claimant who is the appellant has filed this appeal against the order of the Motor Accidents Claims Tribunal, Guntur, seeking further compensation of Rs. 39,500/- in addition to Rs. 10,500/- awarded by the Tribunal., He claimed total compensation of Rs. 50,000/- comprising of Rs. 25,000/- towards loss of earning capacity; Rs. 15,000/- towards loss of future prospects; Rs. 2,500/- towards physical pain and suffering; Rs. 5,000/- towards loss of past earnings and Rs. 2,500/- towards medical expenses.

The case of the appellant who was working as a cleaner in the lorry bearing No. A.T.S.3281 is that in the early hours of 25th June, 1988, he received injuries on his fore-head and his left leg was fractured due to the rash and negligent driving of the driver of the lorry in which he was travelling. He claimed a total compensation of Rs. 50,000/-. The owner of the lorry remained ex parte in the Tribunal, while the insurance company with which the lorry was injured opposed the petition contending that there was no negligence on the part of the driver, and since the claimant is an unauthorised person travelling in the goods vehicle, the insurance company is not liable to pay the compensation. The Tribunal held that the accident took place on account of the rash and negligent driving of the driver of the lorry. Regarding quantum, the Tribunal awarded Rs. 500/- towards loss of past earnings and Rs. 10,000/- towards physical pain and suffering and loss of amenities of life, totalling Rs. 10,500/-. Even though the insurance company has taken plea in the written statement that the claim of the injured is not covered by the insurance policy, it took a different stand during the trial that the driver had no valid driving licence. The Tribunal rejected the contention and held that the insurance company is also liable to pay the compensation. Against this award, neither the owner nor the insurance company has preferred any appeal. In this appeal, the claimant is seeking further compensation of Rs. 39,500/-.

Loss of future earnings:- The claimant who was aged 22 years at the time of the accident and 23 years of age at the time of trial, was admitted in the Guntur Govt. Hospital on 25-6-88 for treatment of fracture of left femur. According to P.W.2 who is the Doctor, the injured was in the hospital till 4-9-88, was treated with pin traction, later operation was done for Intra medullary nailing and bone grafting was also done, still he was having nail inside and that another operation was required. According to the Doctor knee joint movements of the claimant are restricted and the claimant cannot walk long distances and cannot sit hours together. According to him, the physical impairment if 15% to 20%.

It is now settled that the percentage of physical impairment from the medical point of view is different from the percentage of disability from the point of view of the earning capacity of the injured. For example, the permanent physical impairment of a finger in case of a typist who has to use all his fingers, for the typing will result in 100% of loss of earnings even though the medical opinion is that the physical disability is only 10%. Similarly in cases of sportsmen, dancing artists, police and defence personnel who suffer injuries in their toes and legs, though the percentage of disability as per the medical opinion may be insignificant, the disability in the earning capacity will be nearby 100%. So also in case of an employee who works in the office at the desk, injury in his toes may not affect his normal working, though from the medical point, the extent of disability may be, say 10%.

This Court in G.V.S. Sesha Sai v. M. Siva Leela 1988 (1) ALT 14 held as follows:

"In my view, while medical opinion as to the percentage of disability is certainly relevant for consideration in compensation claims, the Court should not consider the medical evidence as totally binding on it. Experience has shown that sometimes the certificates relating to percentage of disability produced by the claimants are of exaggerated nature. Sometimes, even the doctors examined for the claimant give a certain higher percentage of disability from the medical point of view, though from the point of the Court, the disability may be of a lower degree or vice-versa....".

In Oriental Insurance Co. Ltd. Vs. Guru Charan Saren and Another, the Orissa High Court held that the disability qua the claimant''s employment under the owner is the only consideration to determine compensation and that the tort-feasor cannot oppose the claim on the ground that the injured can profitably engage himself in other avocation or profession for pursuit of which the disability may not come in the way. The High Court laid down the principle applying the guidelines laid down under the Workmen''s Compensation Act. Accordingly, in that case, it was held that a person employed as a coolie in a truck who could not walk without a stick as a result of the accident will be entitled to claim as a totally disabled person.

In Gujarat State Road Transport Corporation Vs. Balusinh Nathusinh Parmar and Another, the Gujarat High Court held that the percentage of disability qua the body as a whole need not be accepted as the disability qua earning capacity. In that case an young agriculturist was injured in his two fingers and though the medical opinion was that the physical disability was 10%, the Court held that from the, earning capacity the disability can be fixed at 33%.

In the instant case, the claimant is a cleaner and was aged 22 years. But for the disability he would have bettered his prospects by becoming a driver or getting any other skilled job. The Tribunal has committed an error in not awarding any amount under this head on the ground that the appellant can continue to work as a cleaner even with the disability. In the instant case, the disability in the income earning capacity can be fixed at 20%.

As regards the income, the appellant has deposed that he was appointed as a cleaner with a monthly salary of Rs. 500/- and earning earlier Rs. 10 to Rs. 15 per day. But the Tribunal has fixed the income of appellant at Rs. 200/- p.m. relying on the evidence of Doctor, who was examined as P.W.2, that according to the case sheet the occupation of the appellant was shown as coolie with income of Rs. 200/- p.m. The Doctor has further clarified in the re-examination that he could not say whether the entries in the case sheet regarding the avocation and income of the claimant are entered after ascertaining from him or not and that the entries were not written by him and were entered by student nurses. There is nothing elicited in the cross-examination of the appellant to prove that the injured was not a cleaner, but only a coolie. If he is a cleaner, his income can easily be fixed at Rs. 500/- per month. Taking 20% as percentage of disability, the loss of income of the appellant will be Rs. 100/- per month and the multiplicand will be Rs. 1,200/-. As the claimant was 23 years of age at the time of trial, the relevant multiplier will be 18 as per the table given in Bhaghawan Das''s case (1987 (2) ALT 158) which was approved by Division Bench in Nirmala''s case (1989 A.C.J. 715). Thus, the claimant is entitled to Rs. 21,600/-towards pecuniary damages for present value of loss of future earnings.

Regarding the past earnings, as the monthly income of the claimant is to be taken at Rs. 500/-, the claimant will be entitled to an amount of Rs. 1,125/- in addition to Rs. 500/- granted by the Tribunal taking the income at the rate of Rs. 200/- per month. Though the claimant was not charged for medical expenses by the Government Hospital, he would have incurred some miscellaneous expenses during his 2 1/2 months stay in the hospital which can be estimated at Rs. 500/-.

Thus, in all, the appellant will be entitled to a total compensation of Rs. 33,725/- comprising of Rs. 10,000/- towards loss of pain and suffering already granted by the Tribunal; Rs. 21,600/- towards pecuniary damages for present value of loss of future earnings; Rs. 1,625 /- towards loss of past earnings including Rs. 500/- a warded by the Tribunal and Rs. 500/- towards miscellaneous expenses. Accordingly, the appeal is allowed to the extent indicated above with costs and dismissed for the balance with costs. The appellant will also be entitled to interest on this enhanced amount at the rate of 12% p.a. from the date of petition till the date of payment.