Andhra HC (Pre-Telangana)
S.Muralikrishnan @ Murali vs R.S.Siva Kumar And Another on 14 July, 2014
Author: B.Chandra Kumar
Bench: B.Chandra Kumar
THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.3249 of 2005 14-07-2014 S.Muralikrishnan @ MuraliAppellant R.S.Siva Kumar and anotherRespondents Counsel for the Petitioner:T.C.Krishnan Counsel for the Respondents: -- NA -- <Gist : >Head Note: ?Cases Referred: (2013) 9 SCC 54 THE HONBLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.3249 of 2005 JUDGMENT:
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Though notices were served on the respondents, there is no representation on their behalf.
Dissatisfied with the award of compensation of Rs.60,000/- for a total claim of Rs.2,00,000/- by order dated 05.08.2004 passed in M.V.O.P.No.138 of 2000 by the Motor Accidents Claims Tribunal cum District Judge, Chittoor (the Tribunal, for brevity), the claimant preferred this appeal seeking enhancement of compensation.
The appellant herein is the claimant and the respondents herein are the respondents before the Tribunal and for the sake of convenience, the parties will be hereinafter referred to as per their array before the Tribunal.
The brief facts of the case are as follows:-
On 06.08.1997, at about 10:30 PM, the claimant was proceeding in his oil tanker bearing registration No.PY-01-T- 2619 towards Madras side. When the said oil tanker reached near Arambakam Road of Anna Nagar, the offending lorry bearing registration No.TNM-4141, being driven by its driver in a rash and negligent manner and at high speed, came from opposite direction and dashed against the oil tanker. The claimant sustained multiple bleeding injuries and fractures and was shifted to Government General Hospital, Chennai, where he took treatment as in-patient from 06.08.1997 to 12.08.1997. Contending that he was aged about 30 years and working as a driver and was hale and healthy as on the date of accident; that the accident resulted in fracture of his left knee and injuries on his neck, head and other parts of the body and that he is not in a position to walk freely or bend his leg; that due to the accident, he became permanently disabled and thereby lost his earning capacity; and that he was earning Rs.3,500/- per month as on the date of accident, the claimant filed a claim petition before the Tribunal claiming a total compensation of Rs.2,00,000/-.
The first respondent owner of the oil tanker remained ex parte. The second respondent Insurance Company contested the matter and denied the material averments in the claim petition.
The Tribunal settled the following issues for trial:-
1. Whether the accident occurred was due to the rash and negligent driving of the driver of lorry PY-01-T-
2619 (oil tanker) and/or due to the rash and negligent driving of the driver of the lorry TNM- 4141?
2. Whether the petitioner is entitled to claim any compensation, if so, to what amount and from whom?
3. To what relief?
On behalf of the claimant, the claimant himself was examined as P.W.1 and one Dr.R.Shanmuga Sundaram was examined as P.W.2 and Exs.A.1 to A.8 were marked. On behalf of the respondents, no oral and documentary evidence has been adduced except marking the copy of the policy as Ex.B.1.
On the issue of negligence, the Tribunal, on appreciation of oral and documentary evidence available on record, came to the conclusion that the petitioner (claimant) himself is responsible for the accident, but however, the said finding is not in dispute in this appeal. On the issue of compensation, the Tribunal, by estimating the disability of the claimant at 15%, awarded an amount of Rs.5,000/- towards medicines and treatment, Rs.10,000/- towards pain and suffering, Rs.43,200/- towards present value of the future loss and Rs.1,800/- towards past loss. Thus, the Tribunal awarded a total compensation of Rs.60,000/- to the claimant. Dissatisfied with the same, the claimant preferred this appeal seeking enhancement of compensation.
The main submission of the learned counsel for the appellant is that P.W.1 (the claimant) himself had categorically deposed that he cannot drive heavy vehicles and he cannot squat or sit on the floor. Learned counsel further submitted that the medical record shows that there is mal-union of the fractured bones and the Tribunal ought to have believed the evidence of P.W.2 the doctor who issued the disability certificate to the claimant. It is further submitted that merely because P.W.2 the doctor who issued the disability certificate had not treated the claimant, his evidence cannot be simply brushed aside. Learned counsel further submitted that the claimant is working as a driver and in case of drivers, they will not be in a position to do the same work after any injury to their limbs and thus, there will be loss of earnings and the Tribunal has not properly assessed the loss of earnings in the present case.
As seen from the record, the accident occurred on 16.08.1997. According to the claimant, he became unconscious and he received number of injuries. Then he was shifted to Government General Hopsital, Chennai. The further case of the claimant is that he was treated as In-patient in the said hospital for 22 days. The claimant further deposed that after discharge from the General Hospital, Chennai, he took treatment at Vellore. His specific case is that after the accident, he is not able to work as driver due to fracture of his left leg. The only suggestion given to this witness is that Ex.A.7 is fabricated. The claimant filed Ex.A.5 Discharge Summary along with the X- Ray and it is issued by the Government General Hospital, Chennai. This shows that the claimant sustained communated Tibia upper 1/4th (L). He was admitted in hospital on 06.08.1997 and was discharged on 12.08.1997. Closed Reduction was done and AK Slab applied. The position of the claimant was found to be satisfactory at the time of discharge. However, he was advised to take follow up treatment. Admittedly, it is a communated fracture. In case of communated fracture, it will be difficult for proper union of bones since the bones will become pieces.
Ex.A.7 is the certificate issued by Dr.Shanmuga Sundaram, who is examined as P.W.2. According to him, P.W.1 sustained shortening of leg by 3 centimetres and there is severe restriction of his knee joint movement. Thus, according to P.W.2, the claimant cannot squat or sit and cannot bend his knees. P.W.2 assessed the total disability at 35%. In the cross- examination, it is elicited that P.W.2 had not treated the claimant. It is not necessary that the doctor who treated the claimant alone should issue the disability certificate. As far as the disability is concerned, it has to be seen whether there was proper assessment of the disability or not. If X-Rays are taken and the present position is examined, then the doctor will be in a position to properly assess the disability. Of course, it is always better if the injured gets a certificate from the competent Medical Board. The Tribunal disbelieved the evidence of P.W.2, mainly the ground that he had not treated the claimant. However, the Tribunal itself assessed the disability basing on the record placed before it and took the disability at 15%. Even if disability is 15% or 20%, the aspect as to how the physical disability results in functional disability assumes importance. It all depends upon the profession of the injured. If the injured is doing some sedentary type of job, probably there may not be any actual loss of earnings even if there is some disability to one of his lower limbs. But in case of a labourer or a carpenter or a farmer or a driver or a cleaner, such person has to use both his hands and both his legs while working and if such a person is unable to use his limbs, it will affect his nature of job and normally such people will not be engaged for such professions. Since a driver has to use both his legs and hands while performing his duty, I am of the considered view that the loss of earnings should be taken at 50%.
Admittedly, the accident occurred in the year 1997. According to P.W.1, he was earning Rs.2,500/- per month besides batta. In the circumstances, I consider it just and reasonable to take the income of P.W.1 at Rs.3,000/- per month. If 50% is added towards addition of income as per the judgment of the Apex Court in the case between Rajesh Vs. Rajbir Singh , the total monthly income would come to Rs.4,500/- per month. As mentioned supra, if the disability is taken at 50%, the loss of earnings would come to Rs.2,250/- per month and Rs.27,000/- per annum. The appropriate multiplier applicable to the age of the claimant is 15. Thus, the total loss of earnings would come to Rs.4,05,000/-. It appears that due to the accident, the claimant could not do any work at least for a period of three months. Therefore, an amount of Rs.9,000/- is awarded towards loss of earnings during the period of treatment. Besides the above, I consider it just and reasonable to award an amount of Rs.10,000/- towards pain and suffering, Rs.5,000/- towards medical expenses, Rs.3,000/- towards transportation charges, Rs.2,000/- towards attendant charges, Rs.15,000/- towards loss of expectation of life, Rs.10,000/- towards loss of amenities of life and Rs.15,000/- towards disability and discomfort.
Thus, the claimant is entitled to a total compensation of Rs.4,74,000/- (Rupees four lakhs seventy four thousand only) (Rs.4,05,000/- + Rs.9,000/- + Rs.10,000/- + Rs.5,000/- + Rs.3,000/- + Rs.2,000/- + Rs.15,000/- + Rs.10,000/- + Rs.15,000/-). The Tribunal awarded interest of 9% per annum which appears to be just and reasonable in the facts and circumstances of the case.
It is settled law that irrespective of the amount claimed by the claimants, the Courts may award compensation which appears to be just and reasonable in the facts and circumstances of the case. Since the compensation now awarded is more than the compensation claimed by the claimant, the claimant is directed to pay the deficit Court fee before obtaining the decree.
The appeal is, accordingly, allowed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this appeal, shall stand closed.
_______________________ Justice B.Chandra Kumar 14th July, 2014