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2023 DIGILAW 330 (AP)

Pentimani Ramana v. S. Sekhar

2023-02-07

T.MALLIKARJUNA RAO

body2023
JUDGMENT : T. MALLIKARJUNA RAO, J. 1. Aggrieved by the judgment and decree dated 03.12.2014 in M.V.O.P. No. 813 of 2012 passed by the Chairman, Motor Accidents Claims Tribunal-cum-District Judge, Vizianagaram (for short “the tribunal”) whereby the tribunal awarded compensation of Rs. 46,239/- with interest at 7.5% from the date of petition till realization against respondents 1 to 3 jointly and severally, the claimant has preferred the present appeal. 2. For convenience, the parties herein will be referred to as per their rankings in the M.V.O.P. 3. The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, for compensation of Rs. 3,00,000/- on account of the injuries sustained in a motor vehicle accident that occurred on 15.03.2012. 4. The claimant's case is that on 15.03.2012, at about 5.00 p.m. when the claimant and his relatives travelling from Peda Thadivada to Denkada, the first respondent drove his car bearing No. AP-37-C-7766 (hereinafter referred to as the “offending vehicle”) in rash and negligent manner and at high speed without blowing the horn, dashed the claimant's motorcycle. The claimant fell on the road and sustained injuries. Immediately, he was taken to the Government Headquarters Hospital, Vizianagaram, obtained treatment there till 25.03.2012, thereafter obtained treatment at Tirumala Nursing Home, Vizianagaram, as inpatient. The claimant's further case is that since he sustained injuries in the accident occurred due to the rash and negligent driving of the first respondent, claims compensation Rs. 3,00,000/- for the injuries sustained by him against the driver, owner, and insurer of the offending vehicle. 5. Respondents 1 and 2, offending vehicle’s driver and owner, have remained ex-parte. 6. The third respondent, the offending vehicle’s insurer, filed its counter, denying the allegations in the petition, inter-alia, contended that the accident not occurred due to the negligence of the first respondent and the second respondent violated the policy's terms and conditions, and hence it is not liable to pay any compensation. 7. Based on the pleadings, the tribunal framed relevant issues. To substantiate the claim, during the trial, on behalf of claimants, P.Ws. 1 and 2 were examined and were marked Exs.A.1 to A.9 and Ex.X.1. On behalf of the second respondent, no oral evidence was adduced, but the policy copy was marked under Ex.B.1. 8. 7. Based on the pleadings, the tribunal framed relevant issues. To substantiate the claim, during the trial, on behalf of claimants, P.Ws. 1 and 2 were examined and were marked Exs.A.1 to A.9 and Ex.X.1. On behalf of the second respondent, no oral evidence was adduced, but the policy copy was marked under Ex.B.1. 8. After appreciation of oral and documentary evidence, the tribunal held that the accident occurred due to the rash and negligent driving of the offending vehicle's driver and awarded compensation Rs. 46,239/- together with interest @ 7.5% p.a. from the date of petition till the date of realization. 9. I have heard the learned counsel representing both parties. 10. In the grounds of appeal, learned counsel for the appellant/claimant contended that the tribunal erred in not considering the disability suffered by the claimant, even though the Member, District Medical Board, issued the disability certificate to the claimant duly examining and so also did not award transportation charges, extra nourishment and loss of income. 11. Per contra, learned counsel appearing for the third respondent has supported the findings and observations of the tribunal. 12. Upon hearing the argument of both the learned counsel and having perused the record, the point that has arisen for consideration is whether the quantum of compensation awarded by the tribunal is just and reasonable? POINT: (a) The tribunal’s findings that the accident occurred on account of first respondent’s negligent driving and the claimant sustained injuries in the said accident are not disputed by filing a cross-appeal or cross-objection. Hence these findings have attained finality. (b) The tribunal’s finding that the policy marked under Ex.B.1 was in force; and that the third respondent is liable to indemnify the second respondent are also not disputed in this appeal. It is the evidence of PW-1 that he sustained simple and grievous injuries including a fracture of right tibia, immediately he was taken to the District Headquarters Hospital, Vizianagaram, where he obtained treatment till 25.03.2012, thereafter taken to Tirumala Nursing Home, where he obtained treatment as an inpatient from 25.03.2012, the operation was conducted on 26.03.2012, and was discharged on 23.04.2012. The tribunal considered the evidence of PW-1 regarding he sustained injuries and his evidence is not disputed by the respondents. To prove the nature of treatment undergone, the claimant adduced the evidence of Dr. The tribunal considered the evidence of PW-1 regarding he sustained injuries and his evidence is not disputed by the respondents. To prove the nature of treatment undergone, the claimant adduced the evidence of Dr. K.V. Murali Mohan, Civil Surgeon in Government Headquarters Hospital, Vizianagaram, as PW-2. According to his evidence, the claimant appeared before the District Medical Board on 21.06.2014 on seeing the latest X-ray and wound certificate. Upon clinical examination, the doctor opined that the claimant sustained a fracture of the right tibia, and implants were also present and thereby assessed disability at 20% partial and permanent and also testified that the claimant requires another operation to remove implants. He further testified that due to the disability, the claimant cannot climb trees as he did prior to the accident. In the cross-examination, PW-2 deposed that he did not treat the claimant previously. As seen from the record, the claimant did not choose to examine the doctor who treated him. (c) The tribunal observed that PW-2, a Member of the Medical Board issued Ex.A.7. In the absence of examination of the doctor who treated the claimant, the disability assessed by PW-2 cannot be taken into consideration. Considering the nature of the injuries sustained by the claimant, the tribunal awarded an amount of Rs. 46,239/-. The tribunal has not awarded compensation under the head disability only the ground that the doctor who treated the claimant was not examined. The tribunal has not given any reason as to why he did not consider the disability certificate issued by the doctor, who happened to be a Member of the Medical Board. (d) In Raj Kumar vs. Ajay Kumar, 2011 ACJ 1 the Apex Court, while dealing with the assessment of disability, held that: “6. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remaining life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident. However, he can perform some of them and is still able to engage in some gainful activities. Total permanent disability refers to a person's inability to perform any avocation or employment-related activities due to the accident. 7........... 8. Where the claimant suffers a permanent disability due to 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. In most cases, the percentage of economic loss, the loss of earning capacity arising from a permanent disability, will differ from the percentage of permanent disability. Therefore, the tribunal must first decide whether there is any permanent disability, if so, the extent of such permanent disability. This means that the tribunal should consider and decide concerning 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 concerning 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. If the tribunal concludes that there is no permanent disability, then there is no question of proceeding further and determining the loss of future earning capacity. But if the tribunal concludes that there is permanent disability, it will proceed to ascertain its extent. After the tribunal ascertains the actual extent of the permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 9........... 10........... 11........... 12........... 13. We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. 9........... 10........... 11........... 12........... 13. We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries) do not result in loss of earning capacity. (ii) The percentage of permanent disability concerning the person's whole body 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, based on 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 concerning the evidence in its 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.” (e) In A. Chalapathi vs. Satyanarayana N. Nuwal and Others, 2010 (4) ALD 217 this Court held that: “The evidence of qualified orthopaedic surgeon can be accepted unless the court finds evidence of the doctor not worthy of acceptance by giving cogent reasons. Opinion of a qualified doctor, that too the doctor who conducted surgery and treated patient, cannot be discredited.” (f) Following the principles of law laid down by the Apex Court and this Court, I deem it appropriate that the disability certificate, Ex.A.7, issued by the Member of the Medical Board can be considered. Furthermore, according to the evidence of PW-2, the claimant could not climb toddy trees, and could not attend the duties as he did prior to the accident, due to the disability. As such, this Court views that the claimant sustained partial permanent disability. It is the case of the claimant that he is a toddy tapper and used to earn Rs. 300/- per day. However, he has not placed any evidence to prove the actual earnings. In the absence of proof of the earnings, the Apex Court, in the case of Lakshmi Devi and Others vs. Mohammad Tabber, 2008 (12) SCC 165 held that, in today's world, even a common labour can earn Rs. 300/- per day. However, he has not placed any evidence to prove the actual earnings. In the absence of proof of the earnings, the Apex Court, in the case of Lakshmi Devi and Others vs. Mohammad Tabber, 2008 (12) SCC 165 held that, in today's world, even a common labour can earn Rs. 100/- per day. Following the principle laid down by the Apex Court, this court is inclined to consider the monthly earnings of the claimant at Rs. 3,000/-. Following the monthly earnings, 40% of the additional income should be the warrant towards future prospects in view of the principle laid down by the Karnataka High Court in Gopalappa vs. Kanduluru Sankara Reddy and Another, 2022 ACJ 1427 wherein it was held that: “......in view of the decision of the Apex Court in Pappu Deo Yadav vs. Naresh Kumar, 2020 ACJ 2695 (SC), the claimant is entitled to an addition of 40% of the assessed income towards prospects.” (g) Accordingly, this court assessed the monthly earnings, including the future prospectus, at Rs. 4,200/- (Rs. 3,200 + 1,200). PW-2 testified that the functional disability of the claimant was 20%. The claim petition mentions that the claimant was 20 years old, and the disability certificate, Ex.A.7, noted the claimant's age as 21 years. Therefore, this court considers the age of the claimant as mentioned in the disability certificate, Ex.A.7. The multiplier for the person age groups of 15 to 20 and 21 to 25 years is “18” as provided by the Apex Court in Sarala Verma vs. Delhi Transport Corporation, 2009 ACJ 1298 . Considering the evidence of PW-2, this court computed the loss of earnings due to the disability sustained by the claimant at Rs. 1,81,440/- (4,200 x 12 x 18 x 20%). (h) The compensation awarded by the tribunal under the other heads is not questioned by filing cross-appeal or cross-objections. On perusal of the documents relied on by the tribunal, this court views that the tribunal awarded just compensation Rs. 46,239/- under the other heads. As the tribunal not awarded under the head of disability, in view of the foregoing discussion, this court believes that the claimant is entitled to the compensation an amount of Rs. 1,81,440/- under the head of disability. In all, the claimant is entitled to an amount of Rs. 2,27,679/- (46,239 + 1,81,440). Accordingly, the point is ordered. 13. As the tribunal not awarded under the head of disability, in view of the foregoing discussion, this court believes that the claimant is entitled to the compensation an amount of Rs. 1,81,440/- under the head of disability. In all, the claimant is entitled to an amount of Rs. 2,27,679/- (46,239 + 1,81,440). Accordingly, the point is ordered. 13. In the result, the appeal is partly allowed without costs, enhancing the compensation amount from an amount of Rs. 46,236/- to an amount of Rs. 2,27,679/- (Rupees two lakhs, twenty seven thousand, six hundred and seventy nine only) with interest as awarded by the tribunal against the respondents. The respondents are directed to deposit the compensation amount, excluding the amount deposited if any, within two months from the date of receipt of a copy of this order. The claimant is permitted to withdraw the entire compensation amount on filing appropriate application before the tribunal. 14. Miscellaneous Petitions, if any, pending in this appeal shall stand closed.