Andhra Pradesh High Court - Amravati
Common Judgment vs Ajay Kumar on 27 December, 2022
BVLNC,J MACMA 3024 & 3059 of 2017
Page 1 of 35 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.3024 OF 2017 & 3059 OF 2017
COMMON JUDGMENT:
The appeal in MACMA No.3024/2017 is preferred by the Appellant/claimant challenging the award dated 01.09.2017 passed in M.V.O.P.No.89/2014 on the file of Motor Accidents Claims Tribunal- cum-III Addl.District Judge, Ananthapuram, wherein the Tribunal partly allowed the petition, awarded a compensation of Rs.16,48,000/- with interest @ 7.5% p.a. from the date of petition to the date of realisation to the petitioner for the injuries sustained by her in a motor vehicle accident.
2. The appeal in MACMA No.3059/2017 is preferred by the 2nd respondent/Insurance Company, challenging the award dated 01.09.2017 passed in M.V.O.P.No.89/2014 on the file of Motor Accidents Claims Tribunal-cum-III Addl.District Judge, Ananthapuram, wherein the Tribunal partly allowed the petition, awarded a compensation of Rs.16,48,000/- with interest @ 7.5% p.a. from the date of petition, till the date of realisation to the petitioner, for the injuries sustained by her in a motor vehicle accident.
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3. For the sake of convenience, the parties are arrayed as parties in the lower Court.
4. As seen from the record, the claim petition was filed U/Ss. 140 and 166 of the Motor Vehicles Act, 1988 (for brevity "the Act") claiming a compensation of Rs.25,00,000/- on account of the injuries sustained by the petitioner, in a motor vehicle accident that occurred on 03.04.2012.
5. The facts show that on 03.04.2012 the petitioner Dr.C. Kareemunnisa @ S.M. Karimunnisa was travelling in a car bearing No. AP 02 AF 2313 along with her family members from Kamalapuram to Nandyal after visiting the Mosque (Dhargh) at Kamalapuram, and when they were proceeding near Chintakunta Chruvu Cross on Kadapa - Kurnool road, NH-18, at about 03.00 p.m., the crime bus bearing No. AP 05 TT 1999 driven in a rash and negligent manner by its driver came in the opposite direction and dashed the car. Due to the said impact, the petitioner sustained grievous injuries. Immediately after the accident, the petitioner was shifted to Government Hospital, Prodduturu, for treatment. Later she was shifted to Aswani Super Speciality Hospital, Proddutur. Again she was shifted to UDAI Hospitals at Hyderabad for better treatment. She stayed as in- patient for a period of two months and received treatment. She BVLNC,J MACMA 3024 & 3059 of 2017 Page 3 of 35 Dt: 27.12.2022 underwent operation and doctor inserted implants to the fracture. She spent Rs.3,00,000/- towards medical expenses. The petitioner was hale ad healthy and she was aged 26 years at the time of accident. She was practicing as a private homoeopathy doctor at Nandyal and earning Rs.25,000/- per month. On account of fractures in hip joint, she is not able to squat, walk, stand freely and discharge her duties as a medical practitioner. The Medical Board examined her and assessed the disability at 55%, permanent in nature. On information, Duvvuru Police registered a case in Cr.No.49/2012 for the offence punishable U/Ss. 337, 338 and 304-A of Indian Penal Code against the driver of the crime bus.
6. Before the Tribunal, the 2nd respondent/Insurance Company, filed a written statement resisting, while traversing the material averments with regard to proof of age, avocation, monthly earnings of the petitioner, manner of accident, rash and negligence on the part of the driver of the offending vehicle, and liability to pay compensation, contended that there was a collision of the bus and the car, and therefore, there was contributory negligence on part of the driver of the car. The driver of the bus drove the bus very slowly in a careful manner without any negligence, whereas the driver of car drove the same in a rash and negligent manner and caused the accident. The BVLNC,J MACMA 3024 & 3059 of 2017 Page 4 of 35 Dt: 27.12.2022 compensation claimed is excessive. The 2nd respondent also filed additional counter, contending that the driver of the car bearing No. AP 02 AF 2313 was not holding a valid driving license at the time of the accident.
7. The 4th respondent filed a counter denying material averments of the petition, contended that the accident took place only due to the rash and negligent driving of the driver of the crime bus bearing No. AP 05 TT 1999, and that there was neither rashness nor negligence on part of the driver of the car bearing No.AP 02 AF 2313, as such, this respondent is not liable to pay any compensation. The petitioner was travelling as a passenger in the car on the date of the accident, and that risk of passengers travelling in the car is not covered by the insurance policy. The compensation claimed is highly excessive.
8. Respondents No.1, 3, 5 and 6 remained exparte.
9. On the strength of the pleadings of both parties, the Tribunal framed the following issues:
1. Whether the petitioner Chinnakunata Palli Kareemunnisa @ S.M.Karimunnisa received injuries in the motor vehicle accident on 03.04.2012 at about 03.00 p.m. near Chintakunta Cheruvu Cross, Chinthakunta village, Duvvuru Mandal, on Kadapa -
BVLNC,J MACMA 3024 & 3059 of 2017 Page 5 of 35 Dt: 27.12.2022 Kurnool NH-18 Road, due to rash and negligent driving of the driver of the bus bearing No.AP 05 TT 1999?
2. Whether the petitioner is entitled to receive compensation? If so, to what extent and from whom?
3. To what relief?
10. To substantiate their claim, the petitioner examined P.Ws-1 to 6 and got marked Exs.A-1 to A-13. Respondents No.2 and 4 did not adduce any oral evidence, but the 2nd respondent got marked a copy of the insurance policy as Ex.B-1 and 4th respondent got marked a copy of the award in O.P.612/2012 as Ex.B-2 with consent.
11. The Tribunal, taking into consideration the evidence of P.Ws-1 to 6, coupled with Exs.A-1 to A-13, held that the accident took place due to the rash and negligent driving of the driver of crime bus bearing No. AP 05 TT 1999, and further, taking into consideration the evidence of P.Ws-1 to 6, corroborated by Exs.A-1 to A-13, awarded a compensation of Rs.16,48,000/- with interest @ 7.5% p.a. from the date of petition, till the date of realisation with proportionate costs, against respondents No.1, 2 and 5, by exonerating the liability against respondents No.3, 4 and 6.
12. The contention of the appellant/claimant in MACMA No.3024/2017 is that the claimant sustained grievous injuries in the BVLNC,J MACMA 3024 & 3059 of 2017 Page 6 of 35 Dt: 27.12.2022 accident that occurred on 03.04.2012, and as a result, she took treatment as in-patient for a period of two months, and underwent an operation to set right the fracture suffered by her, and she incurred a sum of Rs.3,00,000/- towards medical expenses, and at the time of accident, she was aged 25 years, and practising as a Homeopathic Doctor, and earning Rs.25,000/- per month, and therefore, she is entitled to a loss of earnings during the period of treatment, and further, she suffered permanent disability of 55% due to the fracture of hip joint, and as a result, she is unable to squat, walk and stand freely, and therefore, not able to discharge her duties as a doctor, and she is entitled to Rs.17,80,000/- towards loss of future earnings on account of permanent disability; and the Tribunal erred in applying multiplier 17 instead of 18, and wrongly considered the disability at 40% instead of 55%, and the Tribunal also fixed the income at Rs.15,000/- per month only instead of Rs.25,000/- keeping her at par with the case of engineering student, though the appellant is a doctor, and even that she was earning Rs.25,000/- per month at the time of accident, and therefore, the Tribunal did not award just compensation and awarded Rs.16,48,000/- only, against her claim at Rs.25,00,000/- ; The Tribunal awarded only Rs.3,00,000/- towards medical expenditure instead of Rs.5,00,000/- incurred by the claimant, and BVLNC,J MACMA 3024 & 3059 of 2017 Page 7 of 35 Dt: 27.12.2022 the Tribunal also failed to award future medical expenses for replacement of hip, and therefore, the Tribunal failed to award just compensation to the claimant.
13. The Insurance Company, which is an appellant in MACMA No. 3059/2017 contended that the order of the Tribunal is erroneous, and the Tribunal failed to see that the accident occurred due to negligence on both drivers but fastened liability only on the appellant, and the Tribunal awarded a sum of Rs.16,48,000/-, though there is no income proof produced by the claimant, and awarded interest at 7.5% p.a., is excessive in the circumstances of the case.
14. In the light of the above rival contentions raised in both the appeals, the points that would arise for consideration in both the appeals are as under:
1. Whether the driver of the car also contributed to cause the accident?
2. Whether the Tribunal did not award just compensation to the claimant?
3. To what relief?
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15. POINT No.1:
The case of the claimant is that on 03.04.2012 she along with her family members are travelling in a car bearing No. AP 02 AF 2313 from Kamalapuram to Nandyal, and when the car reached Chintakunta Cheruvu Cross on Kadapa - Kurnool NH 18 road, at about 03.00 p.m., the crime vehicle i.e., bus bearing No.AP 05 TT 1999 was coming in the opposite direction in a negligent manner, dashed the car, and as a result, the claimant sustained grievous injuries, and was shifted to Government General Hospital, Prodduturu, for treatment, and later to Aswini Super Speciality Hospital, Prodduturu, and subsequently to UDAI Hospital at Hyderabad for better treatment.
16. The contention of the insurer of the bus is that the accident occurred due to the rash and negligent driving of the driver of the car, and not due to the negligence of the driver of bus. It is pertinent to note down that the insurer, the driver and owner of the car were also impleaded as parties to the claim petition apart from the driver and owner of the bus. Both drivers and both owners i.e., drivers of the car and the bus remained exparte before the Tribunal. The other insurer i.e., insurer of the car filed a counter contending that the accident occurred due to the rash and negligent driving of the driver of the bus.
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17. It is an admitted fact that the police registered a case in Cr.No. 49/2012 of Duvvuru Police Station against the driver of the bus, investigated into the crime and laid a police report (charge sheet) against the driver of the bus, opining that he drove the bus negligently, and therefore, the accident occurred. The claimant in support of her evidence filed Ex.A-1 copy of FIR, Ex.A-3 copy of police report (charge sheet). The insurer of the bus has cross-examined the claimant, but did not elicit anything to say that the accident occurred due to the negligence of the driver of the car i.e., to say that he also contributed to the cause of accident. The insurer of the bus did not choose to examine the driver of the bus to depose about the way in which the accident occurred. In the absence of contra evidence, the evidence of P.W-1, who is an injured and travelling in the car at the time of accident, and also in view of Ex.A-3 police report (charge sheet) in the case, which corroborates the testimony of the claimant, I do not find any reason to disbelieve the evidence of the claimant. Therefore, the contention of the Insurance Company that the accident occurred due to the negligence of the driver of the car is not supported by any evidence. The material on record establishes that the accident occurred due to the rash and negligent driving of the driver of the bus.
BVLNC,J MACMA 3024 & 3059 of 2017 Page 10 of 35 Dt: 27.12.2022 Accordingly, this point is answered against the insurer of the bus i.e., appellant in MACMA No.3059/2017.
18. POINT No.2:
The claimant has made claim under the following heads: Sl.No. Description of the head Amount claimed in Rs.
1 Pain and suffering 1,00,000-00 2 Mental agony and shock 20,000-00 3 Medical attendant and transportation 3,00,000-00 4 Loss of earnings due to permanent 17,80,000-00 disability and injuries 5 Future medical expenses 3,00,000-00 Total = 25,00,000-00 The Tribunal awarded the compensation as under:
Description of the head Amount awarded
Sl.No. in Rs.
1 Pain and suffering 30,000-00
2 Mental agony and shock 20,000-00
3 Medical expenses and transportation 3,04,000-00
4 Loss of earnings due to permanent 12,24,000-00
disability and injuries
5 Future medical expenses 20,000-00
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6 Extra nourishment 20,000-00
7 Loss of earnings 15,000-00
Total = 16,48,000-00
19. The contention of the claimant is that she is a qualified Homoeopathic Doctor, and is earning Rs.25,000/- per month at the time of the accident. The claimant to prove that she is a qualified Homoeopathic Doctor filed certain documents covered by Exs.A-11 to A-13 on 01.03.2017. Ex.A-11 is copy of provisional decree certificate issued by the Registrar, Rajiv Gandhi University of Health Sciences, Karnataka, dated 23.02.2021. Ex.A-12 is convocation of Bachelor of Homoeopathic Medicine and Surgery issued by Vice Chancellor, Rajiv Gandhi University of Health Sciences, Karnataka, dated 29.03.2010 and Ex.A-3 is certificate of registration issued by Registrar, Andhra Board for Homeopathy, Hyderabad, Andhra Pradesh dated 17.05.2010, which shows that the claimant is a graduate in Homeopathic Medicine and Surgery, and she was registered with Andhra Board for Homeopathy, Hyderabad, Andhra Pradesh. The insurer did not choose to cross-examine the claimant about these documents. Therefore, it is established that the claimant is a qualified doctor in Homeopathic Medicine on the date of the accident.
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20. The claimant in order to show that she was earning Rs.25,000/-
per month has examined P.W-6. The evidence of P.W-6 is that she is a Gynaecologist, practising at Nandyal, and running a Nursing Home in the name and style of Sri Venkateswara Nursing Home at Nandyal, and the petitioner is working in her Nursing Home since 13 months from 01.01.2011 to 30.01.2012, and she was paid a sum of Rs.25,000/- per month as salary under Ex.A-9, issued on 02.07.2012, and that the petitioner took leave for 2 ½ months for marriage purpose, but after marriage, she met with the said road accident. In the cross-examination she deposed that the claimant worked as a duty doctor in the Nursing Home, and that she is maintaining attendance register and except attendance register, there are no records about the employment of the claimant. The Insurance Company did not elicit anything to discredit her evidence.
21. The fact proved is that the claimant is a qualified Homeopathic Doctor. The Tribunal considered her income at Rs.15,000/- per month relying on the judgment of Hon'ble High Court, which is on the point of income relating to an engineering student died in a motor accident. The Tribunal fixed the income of the claimant at Rs.15,000/- per month on the ground that P.W-6 in the cross-examination stated that she worked as duty doctor, but not as a Homeopathic Doctor, ignoring BVLNC,J MACMA 3024 & 3059 of 2017 Page 13 of 35 Dt: 27.12.2022 the fact that her evidence is with regard income i.e., the salary paid to claimant at the time of accident. Therefore, the order of the Tribunal fixing the income of the claimant, who is a qualified Homeopathic Doctor at Rs.15,000/- per month, treating her case on par with a student of III Year Engineering Computer Course erroneous. In the light of evidence of P.W-1 and P.W-6 and Exs.A-11 to A-13, income of the claimant has to be fixed at Rs.25,000/- per month
22. Next point is whether she is entitled to a compensation for loss of earnings as claimed for physical disability. The case of the claimant is that she sustained grievous injuries in the accident. Ex.A-3 is the wound certificate. As per Ex.A-3 wound certificate issued by A.P.Vaidya Vidhana Parishad, and when she was admitted in Government General Hospital, Prodduturu, immediately after accident, discloses that she sustained injuries as under:
1. Pain and tenderness over hip joint.
2. 1x1 cm. laceration over right eye brow.
23. The evidence of the claimant discloses that initially she was admitted in Government General Hospital, Prodduturu, and later she was shifted to Aswini Super Speciality Hospital at Prodduturu, and later to UDAI Hospital at Hyderabad, for treatment and on account of BVLNC,J MACMA 3024 & 3059 of 2017 Page 14 of 35 Dt: 27.12.2022 the injuries, she sustained commuted fracture acctabulum posterior wall left hip with left foot drop and rhemotoid arthritic and injury over right eye brow and she is unable to squat, walk, stand freely and she cannot discharge her duties as a doctor and is completely depending on others, and as per the disability certificate issued by Medical Board, she suffered permanent disability at 55%, and therefore, she sustained loss of future earnings on account of the disability.
24. The claimant in order to prove her case, has examined the doctor, who treated her and also issued a disability certificate. P.W-2 is a doctor from Government General Hospital, Ananthapuram, and issued Ex.A-5 disability certificate on 05.06.2013. He deposed that due to post traumatic sequale due to RTA on 03.04.2012 with communited fracture central dislocation of left hip joint with foot drop left side and taken treatment at UDAI Clinic, Hyderabad and undergone surgery, and on examination, he found wounds healed, communited fracture acetabulum left united with mal union with changes in the left hip joint with secondary osteo arthritis of left hip joint present, and the patient has got decreased range of movements of left hip joint in all directions with wasting of muscles of left thigh, leg and foot with foot drop. Limping present due to the above injury. She cannot sit in the position of squatting and cross legging. She has difficulty for long BVLNC,J MACMA 3024 & 3059 of 2017 Page 15 of 35 Dt: 27.12.2022 distance walking, prolonged periods of standing, climbing stairs, vice versa and running. As per his estimation, she suffered 55% of permanent disability and accordingly, he issued Ex.A-5 and in the cross-examination of the Insurance Company, he deposed that the disability was only for the limb. He admitted that the petitioner can attend her day to day activities. Therefore, as per his evidence, inspite of the above permanent disability to the limb, the claimant can attend her day to day activities.
25. P.W-3 is a doctor from UDAI Clinic, Hyderabad. He deposed that the claimant was admitted in the hospital on 04.04.2012 with history of road traffic accident on 03.04.2012, and she sustained an injury to left hip, and taken primary treatment at Proddutur, and the patient suffered fracture of posterior wall of acetabulum with a central fracture dislocation of the head of the femur of left hip, and also suffered left foot drop because nerve injury. On the same day, a pintraction applied through lower femur on 07.04.2012 open reduction, and internal fixation of the fracture in the left acetabulum was done under general anaesthesia. The patient was discharged after suture removal on 19.04.2012 and again was readmitted on 03.08.2012 with a first discharge from the outer side of left thigh causing fever and itching this time, and she was re-operated and wound thoroughly debrided BVLNC,J MACMA 3024 & 3059 of 2017 Page 16 of 35 Dt: 27.12.2022 and washed, and subsequently, she was sent home back on 05.08.2012, and subsequently, she has taken treatment at Nandyal and later at Ananthapuram, and she requires total hip replacement in future, and that operation may cost Rs.2,00,000/-, and corresponding wound certificate as Ex.A-3 and as per his evidence, the patient has difficulty in squatting on the ground in Indian style, and she cannot walk and run fast, and she may have residual pain and foot drop, and Ex.A-6 is the discharge summary issued by their hospital and Ex.A-8 is X-rays belong to the patient.
26. In the cross-examination of insurer/4th respondent, adopted by the 2nd respondent, he deposed that the patient did not come to their hospital for follow up treatment after 05.08.2012, and the patient was doing well at the time of discharge and in the cross-examination, it was also elicited Ex.A-7 is part and parcel of UDAI Clinic covered by Ex.A-7.
27. P.W-4 is the in charge of UDAI Hospital Pharmacy. The claimant examined him to prove Ex.A-7 medical bills. As per his evidence, Ex.A-7 medical bills were issued by their hospital. It is pertinent to note down that the insurer himself elicited in the cross-examination of P.W-3 that Ex.A-7 was issued by Arya Pharmacy, which is part and parcel of Udai Hospital. The same was corroborated by P.W-4.
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28. P.W-5 is the Physiotherapist. As per his evidence, he treated the petitioner from 08.05.2012 to 08.04.2013, and he received Rs.49,500/- from the petitioner for the physiotherapist to the petitioner covered by Ex.A-7 bills, and in the cross-examination, he deposed that he is not maintaining any books of accounts, and he is practising as Physiotherapist basing on his provisional degree. He denied the suggestion of the Insurance Companies that he issued Ex.A-7 bill only to help the claimant.
29. The above evidence of the claimant and the doctors examined by the claimant, establish that she has suffered fracture to her left hip due to the accident occurred on 03.04.2012, and she was operated for the same at UDAI Hospital, Hyderabad. On account of the said fracture to hip and operation, she suffered certain disabilities i.e., she cannot walk and run fast, she is facing difficulty in squatting on the ground in Indian style and she will have residual pain on foot drop. The evidence of the doctor, who issued the permanent disability certificate, corroborated the same apart from the evidence of the doctor, who treated her. The physical disability to her limb was assessed under Ex.A-6 is 55%. The doctor, who issued the same admitted that she can attend her normal activities inspite of that disability. Admittedly, the claimant is working as Homeopathic Doctor.
BVLNC,J MACMA 3024 & 3059 of 2017 Page 18 of 35 Dt: 27.12.2022 It is not her evidence that on account of the injury sustained in the accident, she is not able to attend or perform duties as a Homeopathic Doctor. She might be suffering pain due to standing, while attending duty as doctor. It is not her case that she has lost the employment on account of the disability to the limb or she was asked to work in a lower rank post, and therefore, she sustained loss of earnings, and that she is unable to get any new employment with higher emoluments on account of the physical disability.
30. The Tribunal though observed that she did not state anything about functional disability, assessed the same at 40% without assigning any reason. In para 35 of the order of the Tribunal, it was held that 'there is a difference between medical disability and functional disability, and the evidence of P.W-2 does not show due to disability the work of the patient will be totally lost; On the other hand, evidence of P.W-2 is very clear that patient can attend her normal duties; So, the disability is fixed at 40%'. The Tribunal accordingly calculated the loss of earnings and arrived the loss of earnings at Rs.12,24,000/-.
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31. The Tribunal in its order failed to fallow the principles laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another1, held in paragraphs 4 to 13 as under:
"4. The provision of the Motor Vehicles Act, 1988 (`Act' for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. (See C. K. Subramonia Iyer vs. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D. Hattangadi vs. Pest Control (India) Ltd. - 1995 (1) SCC 551 and Baker vs. Willoughby - 1970 AC 467).
5. The heads under which compensation is awarded in personal injury cases are the following:
1
2011 (1) SCC 343 BVLNC,J MACMA 3024 & 3059 of 2017 Page 20 of 35 Dt: 27.12.2022 Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising :
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as BVLNC,J MACMA 3024 & 3059 of 2017 Page 21 of 35 Dt: 27.12.2022 they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)(a). We are concerned with that assessment in this case. Assessment of future loss of earnings due to permanent disability
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 remainder 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. 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, though he is able to BVLNC,J MACMA 3024 & 3059 of 2017 Page 22 of 35 Dt: 27.12.2022 perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (`Disabilities Act' for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
7. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. 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 the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body, cannot obviously exceed 100%.
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8. Where the claimant suffers a 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. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns 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 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, BVLNC,J MACMA 3024 & 3059 of 2017 Page 24 of 35 Dt: 27.12.2022 the Tribunal will adopt the said percentage for determination of compensation (see for example, the decisions of this court in Arvind Kumar Mishra v. New India Assurance Co.Ltd. - 2010(10) SCALE 298 and Yadava Kumar v. D.M., National Insurance Co. Ltd. - 2010 (8) SCALE 567).
9. 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. 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 then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of 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.
10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result BVLNC,J MACMA 3024 & 3059 of 2017 Page 25 of 35 Dt: 27.12.2022 of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for BVLNC,J MACMA 3024 & 3059 of 2017 Page 26 of 35 Dt: 27.12.2022 discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to `hold an enquiry into the claim' for determining the `just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of BVLNC,J MACMA 3024 & 3059 of 2017 Page 27 of 35 Dt: 27.12.2022 Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.
12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated BVLNC,J MACMA 3024 & 3059 of 2017 Page 28 of 35 Dt: 27.12.2022 the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. We may now summarise 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 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 percentage of loss of earning capacity is the same as 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 the extent of permanent disability. The loss of earning capacity is something that will have BVLNC,J MACMA 3024 & 3059 of 2017 Page 29 of 35 Dt: 27.12.2022 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."
32. In light of the above principles laid down by the Hon'ble Apex Court, the case of the claimant has to be considered with reference to the injuries sustained by her in the accident, and the functional disability suffered by her due to permanent disability caused to her left hip and foot drop suffered by her, whether she cannot attend her normal duties as a Homeopathic Doctor due to that functional disability. Evidence produced by her established that she can attend to normal duties. There is no evidence to show that she sustained loss of employment or earnings due to alleged physical disability.
33. But, it is proved that she cannot walk, run fast, squat as she was doing earlier, and she would suffer residual pain due to foot drop, and further she requires a complete replacement of hip in future. Therefore, she will face discomfort throughout her life and certainly lose certain amenities in life when compared with her peers. Therefore, her case would fall under the head loss of amenities. She is definitely BVLNC,J MACMA 3024 & 3059 of 2017 Page 30 of 35 Dt: 27.12.2022 entitled to compensation under the head loss of amenities, instead of loss of future earnings, on account of permanent disability may be awarded compensation under the loss of amenities. The Hon'ble apex Court in Rajkumar's case held that "......In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand....." .
34. The tribunal has lost sight of this aspect. Considering that claimant is at a young age, her profession as a doctor, other facts and circumstances discussed regarding her functional disability in walking, squatting, foot drop and limping, and also considering the fact that she has to lead her life with these inconveniences and short comings rest of her life, this court deems it fit to award a sum of Rs.10,00,000/-(Ten Lakhs) to her under the head loss of amenities, instead of loss of future earnings due to physical disability.
35. The evidence on record discussed above shows that she was admitted in the hospital as in-patient in April 2012 and later again in the month of August, 2012, considering these facts, she is entitled to a compensation for loss of earnings during the period of treatment for a period of 6 months, at the rate of Rs.25,000 x 6 = Rs.1,50,000/-.
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36. The claimant made a claim for Rs.3,00,000/- towards
transportation and attendant charges, apart from Rs.3,00,000/- towards medical expenses. As already stated supra, the petitioner examined the doctor who treated her and as well as in charge of the pharmacy of UDAI Hospital to prove Ex.A-7 medical bills, and also examined the Physiotherapist, who gave physiotherapy treatment to her to set right the fracture suffered by her. The claimant is entitled to Rs.3,00,000/- towards medical expenses, transportation and attendant charges covered by Ex.A-7. As per the evidence of P.W-3, she needs another operation for replacement of hip, which may require a sum of Rs.2,00,000/-. Therefore, this amount can be awarded to the claimant towards future medical expenses, in addition to Rs.3,00,000/- awarded towards medical expenses.
37. The claimant can be awarded a sum of Rs.1,50,000/- towards pain, suffering and trauma for the injuries sustained by her in the accident, and for corresponding operations underwent by her.
38. The Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of realisation. I do not find any ground to interfere with the rate of interest awarded by the Tribunal at 7.5% p.a., from the date of petition, till the date of realisation, in view of the Apex Court BVLNC,J MACMA 3024 & 3059 of 2017 Page 32 of 35 Dt: 27.12.2022 judgement in National Insurance Company Limited Vs. Mannat Johal2.
39. Therefore, the total amount of compensation entitled by the claimant/petitioner under the following heads would be as under:
Sl.No. Description of the head Amount awarded
in Rs.
1 Pain, suffering and trauma 1,50,000-00
2 Loss of earnings during the period of 1,50,000-00
treatment for 6 months.
3 Medical expenses, transportation and 3,00,000-00
attendant charges
4 Future medical expenses 2,00,000-00
5 Loss of amenities 10,00,000-00
Total = 18,00,000-00
Thus, the amount entitled by the claimant towards just compensation is Rs.18,00,000/-. The Tribunal awarded Rs.16,48,000/- only. Therefore, the order of the Tribunal is liable to be modified partly. Accordingly, this point is answered.
2 2019 ACJ 1849 (SC) BVLNC,J MACMA 3024 & 3059 of 2017 Page 33 of 35 Dt: 27.12.2022 40. POINT No.3: To what relief?
In the light of findings on points No.1 and 2, I am of the considered opinion that it is a fit case to modify partly the order passed by the Tribunal.
41. In the result, the appeal in MACMA No.3024/2017 filed by the claimant is partly allowed, by modifying the award dated 01.09.2017 passed in M.V.O.P.No.89/2014 on the file of Motor Accidents Claims Tribunal-cum-III Addl. District Judge, Ananthapuram. It is held that the appellant/claimant is entitled to a compensation of Rs.18,00,000/- (Rupees Eighteen Lakhs only), instead of Rs.16,48,000/-, with interest @ 7.5% p.a. from the date of petition till the date of realisation, against the respondents 1, 2 and 5 only with joint and several liability. Respondents 3, 4 and 6 are exonerated from the liability. There shall be no order as to costs.
42. Consequently, the appeal in MACMA No.3059/2017 filed by the 2nd respondent/Insurance Company is dismissed. There shall be no order as to costs.
43. The 2nd respondent/Insurance Company is directed to the deposit the compensation amount of Rs.18,00,000/- (Rupees Eighteen Lakhs only) awarded in MACMA No.3024/2017 along with accrued BVLNC,J MACMA 3024 & 3059 of 2017 Page 34 of 35 Dt: 27.12.2022 interest thereon, within one month from the date of judgment. The amount already deposited, be deducted from the amount to be deposited. On such deposit, the Appellant/claimant is permitted to withdraw Rs.18,00,000/- (Rupees Eighteen Lakhs only) along with the accrued interest thereon.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
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B.V.L.N.CHAKRAVARTHI, J
27.12.2022
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BVLNC,J MACMA 3024 & 3059 of 2017
Page 35 of 35 Dt: 27.12.2022
HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI
M.A.C.M.A.No.3024 & 3059 OF 2017
27th December, 2022
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