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2006 DIGILAW 29 (AP)

P. Ramu v. P. Siva Prasad

2006-01-05

G.CHANDRAIAH

body2006
( 1 ) HEARD the counsel for the petitioner. There is no representation on behalf of the respondents. ( 2 ) NOT being satisfied with the compensation awarded by the Motor accidents Claims Tribunal, Vizianagaram in M. O. P. No. 29/1999, the claimant preferred this appeal. ( 3 ) THE brief facts of the case are that the claimant was aged 30 years and earning an amount of Rs. 80/- per day by working as labourer for loading and unloading works. On 5. 6. 1998 the claimant attended to his duties on the lorry bearing No. AP 31 V 658 and after unloading the stick at Visakhapatnam, was returning back to get another load from Nandigam and that when the lorry reached near Zoo park, due to rash and negligent driving of the driver of the lorry, it hit a tractor stationed on the left side of the road and as a result, the claimant sustained fracture of both the bones of right arm, 6th rib and grievous injury on stomach and other injuries. Immediately, he was taken to the K. G. Hospital, for treatment. The doctors found fracture of both bones of right arm and on the 6th rib and grave injury to the stomach. The claimant underwent treatment in the Hospital and later he took treatment in a private nursing home in Vizianagaram. After discharge, the doctor advised him further treatment and extra nourishment. Alleging that after the accident, the claimant was unable to work and earn anything, he filed claim petition claiming an amount of rs. 2,00,000/ -. ( 4 ) THE driver and owner of the lorry remained ex parte and the insurer, which is the Oriental Insurance Company Limited, filed counter and denied the allegations of the petitioner with regard to rash and negligent driving by the driver and also earnings of the petitioner and the quantum of compensation. ( 5 ) BASED on the above pleadings, the trial court framed the following issues for consideration:1. Whether the accident occurred due to rash and negligent driving of the accident vehicle, as alleged in the O. P. ? 2. Whether R. 1, R. 2 and R. 3 or any of them, are liable to pay any compensation, interest and costs to the petitioner, and if so, to what amount? 3. To what relief? Whether the accident occurred due to rash and negligent driving of the accident vehicle, as alleged in the O. P. ? 2. Whether R. 1, R. 2 and R. 3 or any of them, are liable to pay any compensation, interest and costs to the petitioner, and if so, to what amount? 3. To what relief? ( 6 ) IN support of the case of the claimant, he examined himself as P. W. 1 and also examined the doctors P. Ws. 2 and 3 and got marked Exs. A-1 to A-10 and Ex. X-1 was marked. On behalf of the contesting respondent, no oral evidence was adduced and only Ex. B-1 copy of insurance policy was marked. ( 7 ) THE Tribunal below after considering the entire evidence, both oral and documentary, on record held that the accident occurred due to rash and negligent driving of the driver. Considering the evidence of the doctor P. W. 2 who treated the claimant, the Tribunal assessed the disability at 35 per cent, as partial and permanent and as there are two grievous and one simple injury, granted an amount of Rs. 32000/- i. e. , at the rate of Rs. 15,000/- for two grievous injuries and Rs. 2,000/- for one simple injury. The Tribunal below also granted an amount of Rs. 5,000/- towards treatment and medicines and Rs. 4,000/- towards pain and suffering. ( 8 ) THE learned counsel appearing for the claimant/appellant submitted that because of the accident, the claimant sustained fracture of both bones of right arm and on the thigh and grave injury to the stomach and thus the claimant is unable to work and earn anything and his family is dependant on him. She stated that the court below awarded meager amount of Rs. 32,000/- for injuries and nine thousand for medicines and pain and suffering. Therefore, she sought for enhancement. ( 9 ) IN order to consider the above contention, it is necessary to look into the evidence on record. The claimant was examined as P. W. 1. The case of the claimant is that he suffered fracture of right forearm, 6th rib and grievous injury to stomach and other injuries. In his evidence he deposed that he used to earn Rs. 80/- per day as labourer, but after the accident, he is not able to do any work and that he spent Rs. The case of the claimant is that he suffered fracture of right forearm, 6th rib and grievous injury to stomach and other injuries. In his evidence he deposed that he used to earn Rs. 80/- per day as labourer, but after the accident, he is not able to do any work and that he spent Rs. 30,000/- for treatment, medicines and extra nourishment and, therefore, claimed an amount of Rs. 2,00,000/ -. He stated that two operations were conducted on right hand, right thigh and right side rib. In the cross-examination, he stated that he did not file documents to show that he took treatment in K. G. Hospital and in Dr. Reddy Nursing Home. ( 10 ) P. W. 2 is the doctor who treated the claimant. He deposed that on 5. 6. 1998 the claimant was admitted in K. G. H. Hospital for treatment of fracture of 6th rib on right side, fracture of right arm both bones and that the petitioner was given treatment like wound debridment and manipulation of fore arm. He stated that crutches were applied on 20. 6. 1998. He further deposed that promotion and supinition is grossly restricted and right fore-arm disorganized and disfigurement was present. He stated that the petitioner cannot lift heavy weights and cannot do hard work with his right upper rib and that there was weakness of the grip present. He assessed the disability at 35 per cent as partial and permanent. In the cross-examination, he stated that even if the plates are removed, the petitioner cannot perform his duties like normal persons. He opinioned that the injuries 1 and 2 are grievous in nature and that the third injury is simple in nature. ( 11 ) FROM the evidence of P. Ws. 1 and 2 it is clear that the claimant sustained two grievous and one simple injury and further as per the evidence of the doctor the movements of right fore arm is grossly restricted and there is disfigurement. Further the doctor deposed that the petitioner cannot lift heavy weights and cannot do hard work with his right upper rib and that there is weakness of the grip present. In the cross-examination he deposed that even if plates are removed, the claimant cannot perform his duties. Further the doctor deposed that the petitioner cannot lift heavy weights and cannot do hard work with his right upper rib and that there is weakness of the grip present. In the cross-examination he deposed that even if plates are removed, the claimant cannot perform his duties. ( 12 ) THE evidence of the doctor clearly shows that the petitioner cannot lift heavy weights and cannot do hard work with his right upper rib and that even if the plates are removed, the petitioner cannot perform his duties like normal persons. From the impugned award it is clear that the evidence of the doctor was not properly appreciated by the Tribunal below while assessing the disability. The evidence of the doctor is that the claimant cannot lift heavy weights and perform duties like normal person and there is also disfigurement to his right fore-arm. The insurance company did not lead any rebuttal evidence. Admittedly the claimant was working as labourer for loading and unloading work, which invariably involves lifting of heavy weights. Therefore, in my considered view, the assessment of disability in respect of his earning capacity shall be fixed at 100 per cent. The Tribunal below without noticing this aspect has granted compensation only for the injuries. A learned single Judge of this court in the decision reported in M. NAGARAJU v. SHAIK MAHABBOB SAB considering various judgment of this Court as well as Apex Court framed certain guidelines under which the compensation can be awarded in case of injury claims. The learned single Judge held that the said guidelines are only illustrative. They are extracted as under for better appreciation:1. Shock, pain, suffering and loss of amenities of life due to discomfort, etc; 2. The injury itself with or without disability whether partial, full, temporary or permanent; 3. Medical and incidental expenses; 4. Any other expenses in relation to such event either for a known period or during the whole span of the life of the victim 5. loss of earning capacity; 6. loss of future income 7. Social disability due to disfigurement of a portion or a limb or the whole body; 8. loss of prospects of status, employment, avocation and any other individual or group prosperity in life including social, political, economic and cultural matters; 9. shortened expectation of life; 10. Loss of property due to the accident; 11. Any other pecuniary loss. Social disability due to disfigurement of a portion or a limb or the whole body; 8. loss of prospects of status, employment, avocation and any other individual or group prosperity in life including social, political, economic and cultural matters; 9. shortened expectation of life; 10. Loss of property due to the accident; 11. Any other pecuniary loss. ( 13 ) AS already discussed, from the evidence of doctor as P. W. 2 it is clear that the claimant cannot lift heavy weight and perform duties as normal person. From the evidence of P. Ws. 1 and 2 it could be seen that the claimant was working as labour for loading and unloading works and earning an amount of Rs. 80/- per day. Because of the accident, as per the evidence of the doctor, he cannot lift heavy weights. Therefore, in my considered view, following the judgment of the learned single Judge of this court cited supra, I feel it appropriate to grant an amount of Rs. 1,00,000/- towards loss of earning capacity and future income of the claimant. Since there is no evidence with regard to other aspects, the compensation under the heads specified in the above guidelines framed by the leaned single Judge (1 supra) cannot be granted. ( 14 ) IN view of the above, the claimant is granted Rs. 1,00,000. 00 towards loss of earning capacity and future income of the claimant, in addition to the amount granted by the court below i. e. , Rs. 32,000. 00 towards injuries; Rs. 5,000. 00 towards treatment of medicines and Rs. 4,000. 00 towards pain and suffering. Thus, the claimant is granted an amount of Rs. 1,41,000. 00- as compensation with interest at the rate of 7. 5 per cent from the date of the petition till realization. The enhanced amount shall be paid to the claimant. The impugned award is allowed to the extent indicated above. In the circumstances of the case, there shall be no order as to costs.