Jambapuram Sudharshan Reddy vs The A.P.S.R.T.C.

B. Chandra Kumar, J.—Dissatisfied with the award of compensation of Rs. 85,000/- out of the total claim of Rs. 4,00,000/- by order dated 22.12.2005 passed in M.V.O.P. No. 240 of 2003 by the Motor Accidents Claims Tribunal cum District Judge, Cuddapah, (the Tribunal, for brevity), the claimant preferred this appeal.

The appellant herein is the claimant and the respondent herein is the respondent before the Tribunal and for the sake of convenience, the parties will be hereinafter referred to as per their array before the Tribunal.

The brief facts of the case are as follows:-

On 20.05.2002, at about 04:00 PM, the claimant along with some others boarded an auto bearing registration No. AP-04-T-6573 at Chennur Bus Stop in Cuddapah town to go to Yerramachupalli village. When the said auto reached the railway bridge at Ramachandrapuram on Cuddapah Pulivendula main road, the offending bus belonging to the respondent corporation, being driven by its driver in a rash and negligent manner and at high speed, came from Pulivendula side and dashed against the auto, as a result of which, the auto turned turtle. The claimant sustained fracture injuries to his left leg and other grievous injuries. He was immediately shifted to Government Hospital, Cuddapah and from there he was shifted to Vijaya Hospital, Chennai, for better treatment, wherein, he was treated as in-patient for one month. Contending that he was a student studying MBA II Year at MGR College, Chennai and due to the accident he lost education and not attending college and that he incurred Rs. 1,75,000/- towards medical expenses besides other expenses for his treatment and in spite of taking treatment and undergoing operations, there is still abnormality in his left leg, the claimant filed a claim petition before the Tribunal claiming a total compensation of Rs. 4,00,000/-.

The respondent corporation contested the matter and filed written statement denying the material averments contained in the claim petition.

The Tribunal settled the following issues for trial:-

Whether the petitioner sustained injuries in motor vehicle accident on 20.05.2002 due to rash and negligent driving of respondents APSRTC bus bearing No. AP-11-Z-579 by its driver?

Whether the petitioner is entitled for compensation, and if so, to what amount?

To what relief?

On behalf of the claimant, the claimant himself was examined as P.W. 1 and one Dr. G. Venkata Subbaiah was examined as P.W. 2 and Exs. A.1 to A.7 were marked. On behalf of the respondents, no oral and documentary evidence has been adduced.

On the issue of negligence, the Tribunal, on appreciation of oral and documentary evidence available on record, came to the conclusion that accident occurred due to the rash and negligent driving of the driver of the offending bus belonging to the respondent corporation and the said finding is not in dispute in this appeal. On the issue of compensation, the Tribunal, on appreciation of evidence, awarded an amount of Rs. 15,000/- towards pain and suffering, Rs. 25,000/- towards medical expenses, transportation charges and attendant charges, Rs. 25,000/- towards injuries and Rs. 20,000/- towards loss of pleasure of life due to accident. Thus, the Tribunal awarded a total compensation of Rs. 85,000/- to the claimant. Dissatisfied with the same, the claimant is before this Court as appellant.

The main contention of the learned counsel for the appellant/claimant is that no amount was awarded by the Tribunal under the head Loss of earnings though the claimant sustained permanent disability. It is further submitted that on other heads also, meagre amounts have been awarded by the Tribunal.

On the other hand, learned standing counsel for the Insurance Company submitted that the Tribunal had appreciated the evidence on record in proper perspective and passed as reasoned award and there is nothing to interfere with the same.

The only point that arises for consideration in this appeal is whether the claimant is entitled for enhancement of compensation?

As seen from the evidence let in, the claimant sustained fractures in his left leg and other injuries. He was shifted to Government Hospital, Kadapa and from there he was shifted to Vijaya Hospital, Chennai. According to the claimant, he underwent treatment as In-patient for one month. It is also his case that in spite of taking treatment, there is no complete recovery and even as on the date of giving evidence, he was taking treatment. His further case is that he had spent about Rs. 1,75,000/- towards medical expenses and transportation charges. The claimants further case is that he was operated and he has to undergo another operation for removal of rods from his leg. The claimants specific case is that he is limping and getting pain while walking.

P.W. 2 is the doctor who treated the claimant. According to P.W. 2, he examined the claimant on 22.08.2005 and found deformity and palpation on the left leg. According to P.W. 2, the claimant would get pain while walking, standing and climbing stairs. He has also noticed inch shortening of the left leg and limping. According to P.W. 2, the claimant will have difficulty while squatting and there is weakness of left leg. X-Rays were taken which shows non-united fracture of Tibia and Fibula. Thus, the doctor estimated the disability at 38%. Of course, P.W. 2 admitted that he has not treated the claimant at any time and he is not a member of the Medical Board.

It may not be possible for all the injured persons to examine the same doctor who treated them or who conducted operations. The possibility of the doctors leaving the said hospital or even leaving the country cannot be ruled out. Where the same doctor who treated him is not available, it will be difficult for the claimant to examine such doctor. Moreover, in few cases where the claimant had taken treatment at a distant place like Chennai, Bangalore etc., it may be difficult for such injured person to go to such a distant place only for the purpose of securing the presence of the doctor during trial. What is required is the Courts have to examine the evidence of the doctor and the medical records. The Courts must examine on what basis the doctor has issued the disability certificate. If in a particular case the doctor has examined all the relevant medical records and obtained X-Rays and assessed the disability, then the evidence of such doctor need not be disbelieved. The Courts should examine whether the percentage of physical disability or the functional disability assessed by the doctor has any corroborative evidence or not. If there is corroborative evidence such as X-Rays, discharge summaries or other reports of the hospital, then basing on such records, the Courts have to come to the conclusion that the opinion given by the doctor has some basis. In a case where the doctor had issued the disability certificate without obtaining X-Rays and without examination of medical records, then the Courts should be slow in accepting the evidence of such doctors. Anyhow, the Tribunal would get an opportunity to see the claimant in person. When the injured claimant is in witness box, the Court must observe him carefully or if necessary, make him to walk and then note down in his deposition, the infirmity disability of the injured as observed by the Court. In a case where it appears to the Tribunal that the claimant has sustained disability and that he cannot walk or cannot perform his normal duties but there is no supporting medical evidence, in such circumstances, the Tribunal should suo motu refer such injured to the Medical Board for assessing the percentage of disability. All efforts have to be made for the purpose of assessing the correct disability resulting in functional disability. Nobody should be under the impression that it is only for the claimant to adduce necessary evidence and to produce the medical record in support of his case. There are several claimants who are innocent and ignorant and who have no proper legal assistance. It is most unfortunate that at the time of filing of claim petitions, the concerned advocates are not taking proper care to collect all the medical records and to see that proper disability certificate is filed. If there is any difficulty to summon the documents from the concerned hospitals, the claimants can approach the Tribunal and file necessary applications to summon such records. There is human tragedy in every accident and it is most unfortunate that the families may lose the earning member who otherwise would have taken care of them. In case of injured who sustained disability, he cannot lead a normal life. In some cases, it may be difficult for them to go to other places or in some cases it may be difficult to attend to their normal day to day activities. Therefore, the Tribunal should observe how the life of such a person has become miserable and how all his future hopes and aspirations have been battered and shattered. The Tribunal should be alive to the human misery that resulted due to the accidents. Still in many places, road conditions are not good and there is no proper maintenance of the vehicles. Though several vehicles have been emitting carbon dioxide and adding to the pollution, no effective measures have been taken. Therefore, while deciding the issue of negligence also, the Tribunals should have concern to the ground realities. Of course, many people have no respect for the road rules which is also a factor contributing for the accidents.

Coming to the facts of the case, Ex. A.2 is the wound certificate which shows that the X-Ray revealed fracture of tibia and fibula. Ex. A.7 is the disability certificate showing that the claimant will have difficulty while walking, standing and climbing stairs and there is inch shortening of his left leg. It also shows that the claimant will have limping due to muscle weakness in left leg and he will have difficulty for proper squatting.

Another issue is the physical disability resulting in functional disability. All physical disabilities may not result in functional disability. The functional disability has to be decided basing on the nature of job being done by the injured. In case of a labourer or a village artisan or any person who has to do hard labour, he cannot do any work if one of his limbs becomes useless. Even if a person is getting pain in his legs or in his hands, he may not be in a position to do the work while standing or which require use of his hands. But a person who is doing sedentary type of job in a company or in a Government office, even if there is some disability to any of his legs, it may not effect his actual earning capacity. Of course, he may have some difficulty to go to some other place or some other office or undertake journey which may indirectly effect his earnings. In such cases, the notional loss of earnings have to be assessed. Therefore, what is required to be seen is how the nature of injuries and the after-effects of the injuries sustained by the injured effects his earnings and the work which he was previously doing.

In the instant case, the claimants case is that he was a student studying MBA II year in MGR College, Chennai. Since he has already completed graduation and was doing MBA, he can secure a sedentary type of job. Therefore, the physical disability sustained by him may not directly affect his earnings and may continue to earn as usual. However, he may have some difficulty while moving from one place to another place or from one city to another city and, therefore, notional loss of earnings has to be assessed.

In the circumstances, I consider it just and reasonable to take the disability sustained by the claimant at 10%. The claimant was only a student studying MBA II year. Therefore, the notional income of the claimant can be taken at Rs. 12,000/- per month. As stated supra, if 10% disability is taken, the loss of earnings would come to Rs. 1,200/- per month and Rs. 14,400/- per annum. The appropriate multiplier applicable to the age of the claimant is 18. Thus, the total loss of earnings would come to Rs. 2,59,200/- (Rs. 14,400/- x 18). The claimant had produced medical bills to a tune of Rs. 1,46,000/- and the same is hereby awarded to the claimant. I also consider it just and reasonable to award Rs. 10,000/- towards transportation charges, Rs. 15,000/- towards pain and suffering, Rs. 10,000/- towards loss of expectation of life, Rs. 10,000/- towards continuing disability, inconvenience and discomfort and Rs. 5,000/- towards attendant charges. The claimant filed Ex. A.6 Medical estimation certificate showing that he may require another Rs. 52,000/- towards future medical expenses, but however, I consider it just and reasonable to award Rs. 20,000/- towards future medical expenses.

Thus, the claimant is entitled for a total compensation of Rs. 4,75,200/- (Rupees four lakhs seventy five thousand and two hundred only) (Rs. 2,59,200/-+ Rs. 1,46,000/-+ Rs. 10,000/-+ Rs. 15,000/-+ Rs. 10,000/-+ Rs. 10,000/-+ Rs. 5,000/-+ Rs. 20,000/-). The compensation now awarded shall carry interest at the rate of 9% per annum from the date of petition till the date of realization.

It is settled law that irrespective of amount claimed by the claimant, the Courts may award compensation which appears to be just and reasonable in the facts and circumstances of the case. Since the amount now awarded is more than the total claim of the claimant, the claimant is directed to pay the deficit Court fee before obtaining the decree.

The award of the Tribunal is modified as above and the appeal is, accordingly, allowed. There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this appeal, shall stand closed.