Head Note : Persons of disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995 -Section 47 Judgment : 1. Claimant is the appellant herein. Not being satisfied with the award dated 19.04.2004 made in O.P.No.1290 of 1999 on the file of the Motor Accidents Claims Tribunal, R.R. District at L.B.Nagar, whereunder an amount of Rs.4,67,859/-was awarded towards compensation out of the total claim of Rs.11,82,000/-on account of the injuries sustained by him in a road accident, filed the present appeal. For the sake of convenience, the parties to this appeal are referred to as they are arrayed in the O.P. 2. The facts, in brief, that led to the filing of the present appeal are as follows: The petitioner was working as driver in APSRTC. On 29.04.1998 at about 4.00 PM, while he was proceeding on the bus bearing No.A.P.9 Z 7191 from Hyderabad to Narsaraopet, at Malkapur village limits near Maisamma temple, a lorry bearing No.MH 04 H 5939 (Tanker) came in opposite direction, driven in a rash and negligent manner and dashed the RTC bus driven by the petitioner due to which the petitioner received injuries on his both legs, fractures to fingers, fingers of right leg were removed and also injuries on chest and head. It is stated that due to the accident, the petitioner did not attend duties for about 13 months totally and partly for four to five months. Immediately after the accident, he was taken to RTC hospital at Tarnaka and from there he was shifted to Gandhi Hospital. In respect of the said accident, a case in Cr.No.48 of 1998 was registered against the driver of the tanker. Ex.A.1 is the FIR. The police, after completion of investigation, a filed charge sheet, which is marked as Ex.A.2. According to the petitioner, he was removed from service because of the injuries sustained by him in the accident. 3. The petitioner filed OP showing the owner of the tanker as first respondent and the insurance company as second respondent. The first respondent remained ex parte both before the Tribunal and also in this appeal. The second respondent – insurance company filed counter denying the manner in which the accident took place. 3. The petitioner filed OP showing the owner of the tanker as first respondent and the insurance company as second respondent. The first respondent remained ex parte both before the Tribunal and also in this appeal. The second respondent – insurance company filed counter denying the manner in which the accident took place. According to them, there is no proof with regard to the age, occupation and income of the petitioner and also with regard to the injuries received by the petitioner in the said accident. It is further stated in the counter that the driver of the tanker was not responsible for the said accident and it was the petitioner alone who was responsible for the said accident. 4. Basing on the above pleadings, the Tribunal framed the following issues for trial: 1. Whether the petitioner is entitled for any compensation and interest, if any, and, if so to what amount and at what rate and for what period? 2. Whether the R.1 and R.2 are liable to pay any part of monies covered by issue No.1 supra? 3. To what relief? 5. During the course of evidence, the petitioner examined himself as P.W.1 and he also got examined a Senior Assistant in Narsaraopet Bus Depot as P.W.2 and the doctor who treated him as P W.3. He got marked Exs.A.1 to A.17. On behalf of the respondents no evidence either oral or documentary was adduced. 6. It may be noted here that initially the claim was made only for Rs.2.00 lakhs. But after completion of the evidence, the petitioner filed a petition seeking enhancement of the claim from Rs.2.00 lakhs to Rs.11,82,000/-. 7. The Tribunal, on consideration of both the oral and documentary evidence available on record, came to the conclusion that the accident occurred only due to the rash and negligent driving of the driver of the tanker. The said finding has become final since the same was not challenged by the insurance company. Hence it is established that the accident occurred due to the rash and negligent driving of the driver of the oil tanker. 8. The said finding has become final since the same was not challenged by the insurance company. Hence it is established that the accident occurred due to the rash and negligent driving of the driver of the oil tanker. 8. In so far as the second issue is concerned, the Tribunal, after considering the evidence of PWs.2 and 3 came to the conclusion that the claimant has spent Rs.50,000/-towards medical treatment as he sustained 45% disability and taking the income of the petitioner as Rs.4,185/-per month, and by applying multiplier 15, awarded Rs.3,07,120/-towards loss of earning. Apart from that the Tribunal also awarded a sum of Rs.7,963-80 towards medical bills, Rs.20,000/-towards extra nourishment and attendant charges and Rs.20,000/-towards pain and suffering. Thus the Tribunal awarded a total sum of Rs.4,67,859/-to the petitioner towards compensation with interest @ 9% p.a from the date of petition till the date of deposit by the respondents jointly and severally. As stated supra, not being satisfied with the amount awarded, the present appeal has been filed. 9. The main contention of the learned counsel for the petitioner is that the petitioner suffered 100% disability and he was removed from service as he was unfit to hold the post of driver which he was holding at the time of accident. According to him, the amount awarded towards loss of earning and pain and suffering is very less and hence seeks enhancement of the same. 10. On the other hand, the learned counsel for the insurance company contended that the Tribunal has considered all the aspects and has dealt with the evidence extensively and came to a right conclusion which does not call for any interference from this Court. According to him, the petitioner himself resigned from service to avail the benefits and thereafter filed the present application. 11. I have perused the evidence of P.Ws.1 to 3. P.W.1 in his deposition stated that immediately after the accident he was taken to the RTC hospital and from there he was referred to Gandhi hospital. He was treated there in two spells. In the first spell he was treated as an inpatient for two months, during which time, an operation was conducted for both his legs and rods were inserted in both legs. He was treated there in two spells. In the first spell he was treated as an inpatient for two months, during which time, an operation was conducted for both his legs and rods were inserted in both legs. After two months he was admitted in Gandhi hospital and he was treated as inpatient for one month, in that spell his left leg was again operated and bone grafting was done. The right leg toe was amputated and second toe was partially amputated. According to him, after the operation he again joined in RTC and worked for some time. Thereafter he was sent to medical board where he was found unfit to do the duty of a driver. According to him he was paid Rs.40,000/-and was discharged from the job. 12. P.W.2 is the Senior Assistant in Narsaraopet depot. According to him, the petitioner was unfit to do any other job in the organisation. According to him no application was given by P.W.1 for alternate post and normally no alternate post will be given. 13. P.W.3 is the doctor who treated P.W.1. According to him, he examined P.W.1 on 23.10.2003 at which time, he found mal-united fractures to both bones of left leg with ½ inch shortening, restricting movement of left ankle and loss of right big toe was also noticed. He further deposed that there is a restriction of movement in right ankle. According to him the disability to both limbs is 45%, which is partial and permanent in nature. He further deposed that P.W.1 cannot walk on his own. According to him, with the said disability P.W.1 cannot drive the vehicle. Though he has not treated P.W.1, but basing on the observations made by him, he issued Ex.A.6 handicap certificate. He further deposed that P.W.1 can do bench work. 14. The main ground urged by the learned counsel for the petitioner is with regard to loss of earnings. According to him, in view of Exs.A.12 to A.16 the disability suffered by P.W.1 is to be taken as 100% total disability. Ex.A.12 is the certificate issued by the RTC hospital at Tarnaka declaring the petitioner as unfit for doing the job, Ex.A.13 is the another certificate which was also issued by the RTC hospital at Tarnaka which speaks of the petitioner being unfit to do the job. Ex.A.12 is the certificate issued by the RTC hospital at Tarnaka declaring the petitioner as unfit for doing the job, Ex.A.13 is the another certificate which was also issued by the RTC hospital at Tarnaka which speaks of the petitioner being unfit to do the job. Ex.A.15 is the X-Ray report showing healed fracture in the lower halves of both bones of the left leg with internal fixation. In view of the evidence of P.W.3 and Exs.A.12 to A.15, the learned counsel for the appellant contended that the disability suffered by the appellant – P.W.1 is to be taken at 100% and not 45%. 15. The question that arises for consideration is whether the petitioner himself submitted his resignation or whether the RTC authorities removed him from service due to his disability. Ex.A.6, which is the order passed by the depot manager on 13.09.2000 on the application filed by the petitioner. Though a copy of the application made by the petitioner is not marked, but the contents of the application said to have been made by the petitioner have been extracted in Ex.A.6, which reads as follows: “Sri P.Venkateswarlu, driver of Narsaraopet depot has submitted a representation vide reference 4th cited, requesting the undersigned to retire him from service on Medical Grounds and also stated that he is not going to prefer any appeal to the Medical Board and he would not proceed to any Court of law regarding his medical unfitness.” 16. Basing on the said letter given by the petitioner himself, he was retired from service of the corporation on medical grounds with effect from 13.09.2000 in terms of REg.No.6 (A) (4) of APSRTC Employees (Service) Regulations, 1964. Now, the petitioner goes back on the said letter and tries to contend that he was removed from service on medical grounds. In Ex.A.12 and A.13 it was categorically mentioned that P.W.1 is unfit to work as driver of category-I. But there is no mention that P.W.1 cannot do any job. The evidence of P.W.3 shows that P.W.1 can do bench work. It is pertinent to mention here that under Section 47 of the Persons of disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, a Corporation like RTC will provide an alternate job to the employees who are medically invalidated to perform a particular job. As the petitioner opted for retirement, no alternate job is provided. It is pertinent to mention here that under Section 47 of the Persons of disabilities (Equal opportunities, Protection of Rights and Full Participation) Act, 1995, a Corporation like RTC will provide an alternate job to the employees who are medically invalidated to perform a particular job. As the petitioner opted for retirement, no alternate job is provided. Even the petitioner did not question his removal from the job. It may also be noted that entry in service register, which was marked as Ex.A.9 also indicates that he was retired from service. 17. As seen from the record, the petitioner worked for a short spell in of April, May and June 1999 and again attended duties from July 1999 to June 2000 and finally on 13.09.2000 he was retired from service on medical grounds. The record further reveals that he was paid salary to the said months on the basis of attendance on the number of days he worked deducting leave etc. Therefore, it is clear from the record that from April 1999 to September 2000 he worked as driver and also drew salary for the said months. When such is the position, the contention of the learned counsel for the petitioner that the petitioner was invalidated on medical grounds only cannot stand to the test of scrutiny. 18. Coming to the aspect of extent of disability, P.W.3 is the doctor who examined P.W.1 on 23.10.2003 and issued Ex.A.16. Nothing is suggested to P.W.3 with regard to claimant sustaining 100% permanent disability. His evidence discloses that the claimant / petitioner sustained 45% disability which is partial and permanent. The Supreme Court in Raj Kumar Vs. Ajay Kumar and another ( 2011 ACJ 1 = 2011 (1) SCC 343 )while dealing with the aspect of disability held as follows: “The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more than often not, with reference to a particular limb. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be extent of disability of the whole body. Where the claimant suffers permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. Where the claimant suffers permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the effect of permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings. 12. Thus, it is clear that the percentage of disability assessed by the doctor cannot be taken as the loss of earning capacity and the loss of earning capacity has to be assessed taking into consideration the nature of work and the affect of injuries on the working capacity of a person. This Court had an occasion to consider a similar case in between C.N.Somasekhar Reddy Vs. M/s. I.D.L. Chemicals Ltd, (supra), in which the principles for determination of amount of compensation have been discussed at length. It is further observed that what is to be assessed is whether the injured is in a position to do the same work which he was doing at the time of accident and what is the percentage of disability sustained by him i.e. his physical disability and functional disability. Functional disability has to be assessed considering the nature of work he was previously doing. It was further observed that the loss of earning capacity has to be determined considering the nature of work which he was doing at the time of accident. Therefore, even if the disability was not 100%, loss of earning capacity and functional capacity may be 100%.” The Supreme Court in the case cited above, summarised the principle of grant of compensation in case of injured / victim in road accident as follows: i. All injuries (or permanent disability arising from injuries), do not resulting loss of earning capacity. ii. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. ii. The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). iii. The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. iv. The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 19. The doctor examined P.W.1 subsequently deposed that P.W.1 sustained 45% partial permanent disability. Basing on the material available and after examining P.W.1, the doctor who is examined as P.W.3 gave Ex.A.16 disability certificate wherein the doctor found that the disability to both limbs is to an extent of 45%. 20. Thus, the material on record establishes that the petitioner/claimant after discharge from the hospital, joined the duty and performed the duties of a driver for a considerable time before making an application for retirement. It cannot be said that he was incapacitated to the duties which he was doing prior to the incident. Therefore, the assessment made by the Tribunal with regard to the disability at 45% cannot be said to be without any basis. 21. The next question which arises for consideration is with regard to loss of earning capacity, which has to be assessed from the material available on record. The petitioner was aged 38 years on the date of accident, applying the ratio laid down in SarlaVerma v. Delhi Transport Corporation (2009) 6 SCC 121), the multiplicand which has to be applied for calculating the loss of future earning is 15 and not 13.59 as applied by the Tribunal. So if multiplier 15 is applied, the loss of future earning would be Rs.4,185 X 12 X 15 X 45/100 = Rs.3,38,985/-. 22. So if multiplier 15 is applied, the loss of future earning would be Rs.4,185 X 12 X 15 X 45/100 = Rs.3,38,985/-. 22. The learned counsel for the petitioner argued that the amount awarded under general damages i.e. with regard to pain and suffering is very less. According to him, the Tribunal awarded only a sum of Rs.20,000/-, which is very less compared to the suffering which the petitioner has undergone. The evidence on record shows that the petitioner has undergone operations in two spells. According to him, bone grafting was done and so also bones were tied with the help of steel plates. His right big toe was amputated and another toe was amputated by half inch. He could not attend duties for nearly 14 months and the physically handicapped certificate issued by the doctor shows that his right leg was shortened by half inch. In that view of the matter, I feel that the amount awarded towards pain and suffering is less. Considering the circumstances of the case and in view of the fact that he took retirement from service, I feel that a further sum of Rs.20,000/-may be awarded towards pain and suffering. 23. The Tribunal observed that “the petitioner was in hospital for two spells because of the injuries sustained by him and in those two spells, he must have spent lot of amount for his treatment”. Having said so, the Tribunal has awarded only Rs.7,964/-towards medical bills since the petitioner did not produce all the bills before the Court. The Tribunal also observed that since the petitioner took treatment in government hospital, the expenditure would be very less. But as could be seen from the record, in the first instance, the petitioner was in hospital from 29.04.1998 to 12.06.1998 and was discharged on 26.06.1998. Again he admitted in hospital on 04.12.1998 and an operation was conducted on 11.12.1998. Thereafter he was discharged on 25.12.1998. During the period from 26.6.1998 to 04.12.1998, the petitioner was taking treatment by staying in his house and he was also bed ridden. I feel that though the petitioner took treatment in government hospital, he would have incurred some expenditure towards purchase of medicines as he continued to take treatment after discharge. Thereafter he was discharged on 25.12.1998. During the period from 26.6.1998 to 04.12.1998, the petitioner was taking treatment by staying in his house and he was also bed ridden. I feel that though the petitioner took treatment in government hospital, he would have incurred some expenditure towards purchase of medicines as he continued to take treatment after discharge. It is true that the petitioner has not produced all the bills in respect of the expenditure incurred by him towards purchase of medicines, but the fact remains that he did not attend duties and he was taking treatment by staying in his house. So I feel it appropriate to award another sum of Rs.5,000/-towards purchase of medicines. 24. Thus the petitioner is entitled to a further compensation of Rs.30,000/-(towards loss of earning) + Rs.20,000/-(towards pain and suffering) + Rs.5,000/-(towards medical bills). The amounts awarded by the Tribunal under other counts remain undisturbed. 25. In the result, the appeal is allowed in part by modifying the award to the extent indicated above. The enhanced amount will carry an interest of 6% p.a. from the date of filing of the petition till deposit is made in Court. The other claim remained unaltered. No order as to costs.