K. Vinodh Babu vs Abdul Gani and Others

B. Chandra Kumar, J.—Aggrieved by the award dated 09.09.2005 passed in MVOP No. 235 of 1999 by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Chittoor, whereby and whereunder the Tribunal granted compensation of Rs. 50,000/- out of the claim of Rs. 4,00,000/-, 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 06.03.1999 at about 7.30 P.M. the claimant was proceeding on a cycle. At that time the offending lorry bearing No. AP 21V 0319 being driven by its driver in a rash and negligent manner came at high speed and dashed against the cycle near K.G. Sathram village on Chittoor-Bangarupalem road. The claimant fell down and sustained injuries including head injury. He was shifted to Government Hospital, Chittoor and subsequently he had taken treatment in a private nursing home. The case of the claimant is that he was aged about 22 years at the time of accident and working as sales representative and earning Rs. 2500/- per month. The further case of the claimant is that after the accident he was removed from the job and he is not doing any job. It is also his case that there is loss of memory and therefore he is unable to continue his education. He was studying B.Sc and had discontinued his education. It is also his case that he is unable to walk properly and getting swelling in his right knee if he walks for a short distance. It is also his case that he had incurred Rs. 30,000/- towards medical expenses.

The respondents 1 and 3, the owners of the offending vehicle remained ex parte. The second respondent-Insurance Company contested the matter on various grounds and denied the material averments made by the claimant particularly the disability sustained by him.

The Tribunal framed the following issues.

Whether the accident was caused due to the rash and negligent driving of the driver of the lorry bearing No. AP 21-V-0319?

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

On behalf of the claimant, the claimant himself was examined as P.W. 1 and the Doctors were examined as PWs. 2 to 5 and Exs. A1 to A13 were marked. On behalf of the respondents none were examined but the copy of insurance policy was marked as Ex. B1 and Exs. X1 to X3 were also marked.

On issue No. 1, the Tribunal came to a conclusion that the accident occurred due to negligence of the lorry driver and this finding is not in dispute. On issue No. 2, the Tribunal came to the conclusion that there is discrepancy with regard to percentage of disability sustained by the claimant and therefore the Tribunal awarded Rs. 20,000/- towards pain and suffering for one grievous injury and Rs. 10,000/- towards pain and suffering for four simple injuries, Rs. 10,000/- for 10% disability, extra nourishment, attendant charges, medical bills and transport bills and Rs. 10,000/- towards loss of past and future earnings, thus, the Tribunal awarded total compensation of Rs. 50,000/-.

In case of injuries, the Tribunals have to assess the nature of injuries, period of treatment, place of injuries and the after effects of the injuries. The Tribunals should consider whether the injured would be in a position to lead normal life, whether he would be in a position to do the work which he was doing previously, how the disability affects the functional disability and thereby loss of earnings, how it affects his daily life and movement in the society, future prospects of marriage, future medical expenses etc. Thus, the Tribunals should consider whether there is any loss of amenities of life and whether the injuries would result in loss of expectation of life. All relevant factors have to be taken into consideration for the purpose of awarding just and reasonable compensation. In fact it is the duty of the Tribunals to award just and reasonable compensation. In all cases where the parties are unable to produce the documents and the Tribunals feel that certain documents have to be summoned from the hospital the Tribunals should take initiative and summon the documents from the concerned hospitals and even where a Doctor is not able to give proper evidence with regard to disability resulting in functional disability and thereby loss of earnings, the Tribunals should elicit necessary information from the concerned Doctors. May be for various reasons the claimants due to illiteracy, ignorance and inexperience may not be in a position to adduce necessary and required information though their life has been shattered as a result of the accident.

The Apex Court in a decision reported in Ramchandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited 2011 (6) ALD 75 (SC), observed as follows.

"What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation............."

Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

(i) whether the disablement is permanent or temporary;

(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

(iii) if the disablement percentage is expressed with reference to 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.

Sri T.C. Krishnan, learned counsel for the claimant, has relied on a decision reported in Rekha Jain Vs. National Insurance Company Ltd. and Others, , wherein it was observed as follows.

"It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages."

So, what is required is the Tribunals and Courts should not forget that the injured is not only compensated for the physical injury suffered by him but he should be properly and adequately compensated for the loss which he suffers and for the difficulties which he faces as a result of injuries.

Now it has to be seen whether there is any corroborating evidence to the evidence of P.W. 1. P.W. 2 is the Doctor who is working as a Neuro Surgeon in SVRR Hospital, Tirupati. It is not a private hospital and it is run by the Tirumala Tirupati Devasthanams. P.W. 2 has issued disability certificate estimating the disability at 25% permanent disability. According to P.W. 2 the claimant sustained head injury with lacerations on both sides of the head. It is his further evidence that due to head injury suffered by the claimant he will have the following disabilities. (1) Post Traumatic headache, (2) post traumatic vertigo, (3) defective memory and (4) inability to concentrate and remember his studies. The injuries are also resulted in a scar on right and left parietal regions. P.W. 3 is another doctor who issued the wound certificate Ex. X1. Ex. X2 police intimation register is marked in his evidence. P.W. 4 is an Orthopedic surgeon. According to him there is limitation of movement of knee joint beyond 90 degrees changes in the particular area of the knee gap and also femur. He assessed the disability at 20%. Ex. A6 is the disability certificate issued by P.W. 4. P.W. 5 is another doctor from S.V. Medical College, Tirupati who is initially noted the injuries. The Tribunal failed to consider the medical evidence on record. The Tribunal also failed to consider that the disability spoken by P.W. 2 is with reference to head injury resulting in neurological treatment. The disability spoken by P.W. 4 is with regard to fracture to knee joint. It is quite clear from the evidence adduced that the claimant sustained permanent disability and he will not be in a position to continue his studies and he may have constant headache and loss of memory in future. Therefore, he will not be in a position to do the work as he was doing previously. Though the disability is said to be 25% but if we consider the functional disability resulting in loss of earnings it may be more than 50%, therefore loss of earnings are taken at 50%.

According to the claimant he was earning Rs. 2500/- per month and there is nothing to disbelieve his evidence and he was only 22 years old. He was working as a sales representative while pursuing his studies and therefore having regard to the future prospects of increase in his income, I consider it just and reasonable to take the income of the claimant at Rs. 4,000/- per month because an illiterate can earn about Rs. 120/- to Rs. 150/- per day. Accordingly, 50% of loss of earnings is estimated at Rs. 2000/- per month and annual loss of earnings would be at Rs. 24,000/-. If the same is multiplied with ''18'' the loss of earnings would come to Rs. 4,32,000/-. The Tribunal awarded Rs. 5,000/- towards transportation charges, Rs. 15,000/- towards medical expenses and Rs. 30,000/- towards pain and suffering and there is no need to disturb the same. In the circumstances of the case, I also consider it just and reasonable to award Rs. 20,000/- towards loss of amenities of life, Rs. 20,000/- towards loss of marriage prospects, Rs. 25,000/- towards discomfort and inconvenience, Rs. 10,000/- towards loss of expectation of life, Rs. 3,000/- towards attendant charges, Rs. 5,000/- towards extra nourishment and Rs. 10,000/- towards loss of earnings for the period of treatment. Thus, in all the claimant is entitled to Rs. 5,75,000/-.

It is settled law that the Courts have to award just and reasonable compensation irrespective of the amount claimed by the claimants. In view of the settled legal position I hold that the claimant is entitled to the amount which has been determined by this Court. However, the claimant has to pay the deficit court fee before drafting the decree.

Accordingly, the MACMA is allowed granting compensation of Rs. 5,75,000/-. The rate of interest shall be at 7.5% p.a., from the date of petition till realization. The claimant is directed to pay deficit court fee before drafting the decree. However, in the circumstances, no costs.

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