K. Ganesan vs A.P.S.R.T.C.

B. Chandra Kumar, J.—This appeal is filed by the claimant, being aggrieved by the award dated 18.10.2004 passed in OP No. 97 of 2001 by the Motor Accidents Claims Tribunal-cum-V Additional District Judge, Tirupati, whereby and whereunder the Tribunal awarded compensation of Rs. 50,000/- out of the total claim of Rs. 3,00,000/-.

The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience.

The brief facts of the case are as follows:

"On 02.06.2000 at about 7 p.m. near Dharma Reddy fields, Pichatur on Pichatur-Nagalapuram road, while the claimant was proceeding on his bicycle, the driver of APSRTC bus bearing No. AP 10 Z 7131 drove it in a rash and negligent manner at high speed and dashed against the bicycle of the claimant, as a result of which he sustained injuries including fracture of right knee. It is also his case that he is aged about 30 years at the time of accident and earning Rs. 80/- per day by doing coolie work. He further contended that he had taken a long treatment. But however, he became permanently disabled and not in a position to stand and not able to do any hard work and lost his income. He had taken treatment at Ramachandra Hospital, Kodur, Chennai and spent Rs. 1 lakh towards medical expenses."

Respondent filed counter and denied the averments of the claimant.

The Tribunal framed the following issues.

"1. Whether the petitioner is entitled for compensation? If so, to what amount?

To what relief?"

On behalf of the claimant, the claimant himself was examined as P.W. 1, one Dr. M. Vamseedhar Reddy was examined as P.W. 2 and Exs. A1 to A11 were marked. On behalf of the respondent, none were examined and no documents were marked.

On issue No. 1, the Tribunal found that the accident occurred due to the rash and negligent driving of the driver of the jeep and this finding is not in dispute. On issue No. 2, the Tribunal has taken the income of the claimant at Rs. 50/- per day and awarded Rs. 10,000/- towards pain and suffering, Rs. 30,000/- towards medical expenses, extra nourishment and attendant charges, Rs. 7,500/- towards loss of earnings for the period of treatment and Rs. 2,500/- towards transport charges. Thus, in all awarded Rs. 50,000/- with interest at 9% p.a. from the date of petition till day of payment.

The main contention of the learned counsel for the appellant is that the Tribunal has not assessed the functional disability of the claimant and also his income. It is also his submission that the Tribunal ought not to have disbelieved the evidence of P.W. 2 and disability certificate issued by P.W. 2.

Learned counsel for the respondent submits that the claimant has not obtained disability certificate from the competent Medical Board and therefore the Tribunal rightly discarded the document i.e., disability certificate issued by P.W. 2.

It is obligatory on the part of the Tribunal to assess the entire evidence in proper perspective. The entire oral and documentary evidence i.e., wound certificates, X-rays, Discharge summary, has to be taken into consideration by the Tribunal. Whenever any certificate is issued by any doctor, it has to be seen whether the doctor has examined the medical record, x-rays and assessed the disability or not. Wherever the Tribunal or the opposite party entertains a doubt with regard to the percentage of disability or the functional disability of any injured person, the insurance company or APSRTC have to take steps to see that the injured is sent to competent medical board for assessing the disability. The Tribunal may suo moto refer the injured to the competent medical board. The Tribunal can summon the records from the hospitals. When it is obligatory on the part of the Tribunal to award just and reasonable compensation, it is the duty to collect necessary evidence and then assess whether the injured has sustained disability or not. The photos in this case filed by the claimant clearly indicate that he had sustained 30% disability and he came to the Court hall with crutches. Still if the Tribunal entertains a doubt, it ought to have sent the claimant to the medical board to ascertain the percentage of disability sustained by the claimant. Ignoring any evidence or not taking into consideration the medical evidence, particularly issued by a competent doctor, who is an orthopaedic surgeon is not proper. The Tribunal should make all efforts to decide the percentage of disability and also functional disability. The functional disability has to be decided basing upon the nature of job, nature of work done by the injured prior to the date of accident. An agriculturist or a coolie or a village artisan, or any other person who has to use his limbs, cannot earn anything even if his one of the limb lower or upper become useless. The Tribunal/Court should be alive to the agony of the injured.

In this case on hand, the claimant has submitted several documents. Ex. A5 is the x-ray report. It clearly shows the fractured injuries. He has also filed x-ray film report of the right knee showing that the fractured wounds are not properly united. He also filed several medical bills showing total expenses and the medical bills incurred at the time of operation. Ex. A8 shows that on 28.07.2000 when the claimant again went to the hospital for further treatment, the doctors have categorically noted that there is abnormal mobility and tenderness at the fracture place. Thus, there is restriction of movement of right knee. The discharge summary issued by Sri Ramachandra Hospital, Porur, Chennai, also reveals that the claimant was treated and operation was also conducted for the fracture injuries. It clearly shows that there is shortening of 7 cms. of right leg. Thus, as seen from the documents marked before the Tribunal and the medical records of Sri Ramachandra Hospital, Porur, Chennai, it is clear that the opinion of P.W. 2 is based on the medical report, x-rays. The doctor categorically mentioned in Ex. A4 that the claimant has inability to squat for Indian toilet and he cannot walk for long distance without support and that there is swelling over supercandular area. When there is a clear evidence to show that there is mal union of fractured bones, the Tribunal ought to have believed the evidence of P.W. 2. In the circumstances, the disability of the claimant as deposed by P.W. 2 is taken at 30%. Since the claimant is a coolie, with this kind of disability he cannot work as a coolie. So functional disability and thereby loss of earnings can be taken atleast 50%.

As far as the income of the claimant is concerned, he has categorically deposed that he was working as a coolie and earning Rs. 80/- per day. Therefore, income of the claimant has taken as Rs. 80/- per day and Rs. 2400/- per month and if 50% of loss of earnings are taken, the same comes to Rs. 1200/- per month and Rs. 14,400/- per annum. The same is multiplied with ''17'', the loss of earnings would come to Rs. 2,44,800/-. The claimant is also entitled to a sum of Rs. 14,400/- towards loss of earnings for a period of six months. The Tribunal awarded Rs. 30,000/- towards medical expenses, the same appears to be reasonable. But, however, the Tribunal stated that Rs. 30,000/- includes extra nourishment and attendant charges. But having regard to the period of treatment, I am of the view that additional amounts have to be awarded towards extra nourishment and attendant charges. Accordingly, an amount of Rs. 5000/- towards extra nourishment and Rs. 5000/- towards attendant charges is awarded. The Tribunal awarded Rs. 10,000/- towards pain and suffering, having regard to the nature of injuries and the disability and pain while working, I am of the view that the claimant is entitled to Rs. 20,000/- towards pain and suffering, Rs. 5,000/- towards loss of amenities of life, Rs. 5,000/- towards loss of expectation of life and Rs. 10,000/- towards continuing disability discomfort. Thus, the total amount awarded comes to Rs. 3,39,200/-. The Tribunal awarded interest at 9% p.a. which appears to be just and reasonable and cannot be interfered with.

In Sri Laxman @ Laxman Mourya Vs. Divisional Manager, Oritl. Ins. Company Ltd. and Another, , and in Rajesh and Others Vs. Rajbir Singh and Others, , wherein the Apex Court categorically held that the Courts have to award just and reasonable compensation irrespective of the total amount claimed by the claimants, but they have to pay the court fees. In the circumstances, I hold that even though the claimants claimed lesser amount they can be awarded the amount which appears to be just and reasonable compensation. However, the claimants are directed to pay the deficit court fees on the amount now awarded before drafting the decree.

Accordingly, the MACMA is partly allowed awarding the compensation of Rs. 3,39,200/-. The enhanced compensation shall carry interest at 7.5% p.a. However, in the circumstances, no costs.

As a sequel, the miscellaneous petitions, if any, pending in this appeal shall stand closed.