K. Narasaiah vs M. Sreedhar Reddy and Others

B. Chandra Kumar, J.—Aggrieved by the award dated 31.08.2005 passed in OP No. 236 of 2004 by the Motor Accidents Claims Tribunal-cum-District Judge, Nellore, whereby and whereunder the Tribunal awarded compensation of Rs. 60,000/-, with interest at 7.5% p.a., from the date of petition till realization, out of the claim of Rs. 2,00,000/-, the claimant filed the present appeal seeking enhancement of compensation.

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. That on 12.04.2003 the claimant and others were engaged an Auto bearing No. AP 26U 8296 to go to Vavilla village from Atmakur and while they were returning from Vavilla village to Nellore it is alleged that the lorry bearing No. AP 26 U 7225 being driven by its driver in a rash and negligent manner came and dashed against the Auto near Inamadugu road centre at Kovur, as a result of which the claimant and others sustained injuries. The claimant was shifted to Government Hospital. It is the case of the claimant that in spite of treatment he became permanently disabled due to fracture of D8 and D9 vertebral of spine. It is also his case that he was aged about 32 years at the time of accident and he was working as toddy tapper and earning Rs. 6,500/- per month.

The first respondent-owner of the vehicle remained ex parte. The second respondent-Insurance Company filed counter and contested the matter on various grounds.

The Tribunal framed various issues.

On behalf of the claimant the claimant himself was examined as P.W. 1 and P.Ws. 2 and 3 were examined and Exs. A1 to A6 were marked. On behalf of the respondents none were examined but the copy of insurance policy was marked as Ex. B1.

On the issue of negligence the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry. The said finding is not in dispute in this appeal. On issue No. 2, the Tribunal came to the conclusion that the claimant is entitled to a sum of Rs. 30,000/- towards pain and suffering, Rs. 10,000/- towards medical expenses, Rs. 15,000/- towards disability and Rs. 5,000/- towards loss of earnings. Thus, in all, the Tribunal awarded Rs. 60,000/-.

The main contention of the learned counsel for the claimant is that after the accident the claimant is unable to do any work and there is total loss of earnings and the Tribunal has not considered the future loss of earnings and the functional disability sustained by the claimant. It is also his submission that the amounts awarded on other heads is also on lower side.

Learned counsel for the Insurance Company has supported the award and submitted that the Tribunal has correctly awarded the compensation and there are no reasons to interfere with the same.

The only point that arises for consideration is whether the claimant is entitled for any amount of compensation.

In case of injuries the nature of injuries and the after effects of the injuries should be taken into consideration. Whenever any injured has sustained permanent disability, the permanent disability sustained by the injured has to be assessed having regard to the nature of duties being done by the injured prior to the date of accident. In case of labourers, artisans or any other person, they have to do hard work by using both upper and lower limbs. If any one of such limb becomes useless or if the injured is not able to use even if one hand or one leg the labourers will not be in a position to do the labour work. In such cases normally there will be total loss of earnings. Except doing some work while sitting at home they cannot do any other work. Therefore, in all the cases where there is evidence to show that the injured sustained permanent disability, such loss of functional disability has to be assessed. In a case where a person can simply sit and do work in an office in front of a computer or any other job where he need not stand or need not do any work with his legs or can do work with one hand, in such cases the loss of earnings can be very less and only notional loss of earnings may have to be assessed. Everything depends upon the nature of work done by the injured prior to the accident.

In the instant case the claimant was working as toddy tapper. As a Toddy Tapper he has to climb the trees. Even one of the hands becomes ineffective he cannot work as a toddy tapper. As seen from the evidence let in, in this case the injured, who is examined as P.W. 1 has categorically deposed that after the accident he is unable to climb the trees to tap toddy. It is also his case that he is unable to attend his normal duties and he could not do any normal duties for about six (6) months. It is also his case that due to fracture to his spinal card he cannot walk properly and he is getting pain in his leg and his left hand is paralyzed and he became permanently disabled. Now it has to be seen whether the contention of the injured is supported by any medical evidence. P.W. 2 is the Doctor from Government Headquarters Hospital, Nellore. According to P.W. 2 the claimant was admitted in the hospital on 12.04.2003 and discharged on 14.05.2003. He examined the claimant in the Government Hospital and found the following injuries.

Multiple abrasions over the left side of face and chin.

5 x 1 centimeter lacerated injury over the left fore-head.

3 x 3 centimeter abrasion over the right hand.

Multiple abrasions over the chest.

Pain in the dorsal region of spine (noted by inpatient doctor/Ortho).

P.W. 2 opined that the injuries 1 to 4 are simple in nature and injury No. 5 is grievous one. According to P.W. 2, deformity of spine present both the lower limbs are normal, there is difficulty in lifting the left upper limb. He further opined that the claimant may find difficulty for prolonged standing and doing heavy work. The doctor assessed the disability at 20% of spine. P.W. 2 has categorically deposed that the claimant cannot climb toddy trees at present and in future. It is elicited in the cross-examination that the claimant was given free treatment in the Government Hospital. P.W. 2 denied the suggestion that the claimant can do any work as before. Ex. A3 is the wound certificate and Ex. A4 is the out-patient ticket issued by the Government Headquarters Hospital, Nellore, showing the date of admission and date of discharge. The case sheet is marked as Ex. A6. The nature of injuries sustained by the claimant, period of treatment and the operations conducted on him are noted in the case sheet. It is noted in the case sheet that the claimant complained a pain in dorsal spine and weakness of the left upper limbs. Thus, it appears that the evidence of the claimant is supported by the medical evidence. It is clear from the evidence that the claimant cannot do any hard work and cannot climb the trees though the disability to spine is estimated at 15 to 20%. Since according to P.W. 2 there is difficulty for prolonged standing and doing heavy work and there is difficulty in lifting the left upper limb, I am of the view that the total loss of earnings shall be estimated at 75% since it appears that the claimant cannot do any hard work and that he can do some work while in sitting position.

As far as earnings of the claimant is concerned, according to P.W. 1 he was earning Rs. 6,500/- per month. According to P.W. 3 the claimant was a member of toddy tappers society and earning Rs. 200/- to Rs. 300/- per day by way of toddy tapping. Having regard to the nature of job and having regard to the future prospects of his income I consider it just and reasonable to take his income at Rs. 4000/- per month. 75% of the same would come to Rs. 3000/- per month and annual loss of earnings would come to Rs. 36,000/-. If the same is multiplied with ''16'' the total loss of earnings would come to Rs. 5,76,000/-.

Having regard to the nature of injuries and disability sustained by the claimant, I consider it just and reasonable to award Rs. 10,000/- towards loss of amenities of life, Rs. 10,000/- towards loss of expectation of life, Rs. 10,000/- towards disability, discomfort and inconvenience, Rs. 3,000/- towards extra nourishment, Rs. 3,000/- towards attendant charges, Rs. 2,000/- towards transportation charges and Rs. 20,000/- towards pain and suffering. Thus, in all, the claimant is entitled to total compensation of Rs. 6,34,000/-.

In view of the judgment of the Apex Court reported in Rajesh and Others Vs. Rajbir Singh and Others, , irrespective of the amount claimed by the claimants towards compensation it is the duty of the Courts to award just and reasonable compensation. However, the claimants have to pay the deficit court fees.

Accordingly, the MACMA is allowed awarding total compensation of Rs. 6,34,000/-. The Tribunal awarded interest at 7.5% p.a., from the date of petition till realization and there is no need to disturb the same. However, the claimant is directed to pay deficit court fee before drafting the decree. In the circumstances, no costs.

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