THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A. C.M.A. No.30 of 2009 DATE: 22-02-2011 Between: Smt. P. Venkatamma … Appellant A n d The A.P.S.R.T.C rep by its Managing Director, RTC X Roads, Musheerabad, Hyderabad and another … Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A. C.M.A No.30 of 2009 ORDER: This appeal is directed against the award dated 19-09-2008 made in O.P.No.2471 of 2006 on the file of Motor Accidents Claim Tribunal-cum-XI-Additional Chief Judge, City Civil Court, Hyderabad. 2. The appellant herein is the claimant before the lower Court. Aggrieved by the order awarding a compensation of Rs.3,35,800/- out of the total claim of Rs.5,00,000/-, the claimant preferred this appeal. The appellant will be referred to as claimant hereinafter for the sake of convenience. 3. The brief facts of the case are as follows: The claimant was aged about 40 years as on the date of accident. She was working as labourer and earning Rs.3,000 per month. On 04.10.2006, at about 09:00 A.M., while she was standing at Bus Stop at Arts College, O.U. Campus, a bus bearing No.AP28Z147 came and stopped in the bus stop. The claimant was boarding the bus, but before the claimant could completely board the bus, the bus driver started the bus in a rash and negligent manner and due to the jerk, the claimant fell down and the front tyre of the bus ran over both the legs of the claimant. She was shifted to Gandhi Hospital, Secunderabad for treatment and the report given by the O.U. Police in Crime No.246 of 2006 for offence under Section 337 IPC. The claimant’s case that her left leg was amputated and her right leg sustained multiple injuries including fractures and five operations were conducted to her legs. It is also her case that she sustained permanent disability resulting in loss of total earning power. It is also her case that she incurred expenditure towards medical expenses transportation, extra nourishment. It is also her case that she sustained loss of amenities in life and suffered great pain and suffering – she claimed a total compensation of Rs.5,00,000/- under different heads. The respondents representing A.P.S.R.T.C., filed a counter denying the averments of the claimant with regard to her age, income and also her claim of sustaining permanent disability and loss of total earning capacity etc. The Respondent’s further case is that the claim of the claimant is excessive and exorbitant. The Tribunal framed the following issues: (i) Whether the accident resulting in injuries to the petitioner occurred owing to the rash and negligent driving of the driver of bus bearing No.AP 28Z 147? (ii) Whether the petitioner is entitled for compensation, and, if so, to what amount and from whom?; and (iii) To what relief? 5. On behalf of the claimants, T.Venkatamma was examined as P.W.1 and examined Dr. B. Rama Krishna, Professor of Orthopaedic, Osmania General Hospital, as P.W.2 and Exhibits A1 to A9 were marked. None were examined on behalf of the respondents and no documents were marked. 6. On consideration of the oral and documentary evidence, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the bus driver. On issue No.2, the Tribunal, on appreciation of evidence of P.W.2-Professor of Orthopaedic, came to the conclusion that the claimant sustained 80% disability and taking the income of the claimant at Rs.75/- per day, i.e. Rs.2,250/- per month and applying the multiplier ‘13’, the Tribunal awarded Rs.22,800/-. Rs.800/- towards loss of earnings and similarly the Tribunal awarded Rs.5,000/- towards transportation charges, Rs.5,000/- towards extra nourishment, Rs.20,000/- towards medical expenses, Rs.25,000/- towards pain and suffering and in all, Rs.3,35,800/-. 7. The main contention of the learned counsel for the claimant is that even in case of house-wife, the monthly income is taken at Rs.3,000 per month, and therefore, the Tribunal committed an error in taking the monthly income of the claimant at Rs.2,250/- per month. It is also his contention that the Tribunal ought to have taken the total loss of earning power as 100%. 8. In support of his contention, he has relied on the judgment in case between C.N.SOMASEKHAR REDDY v. M/S I.D.L. CHEMICALS LTD.,[1] and in case between P. YESHODAMMA v. T. BUCHIREDDY[2] and in case between A.P.S.R.T.C v. M.PENTAIAH[3]. 9. The learned counsel for the respondents submitted that the Tribunal has taken the income of the claimant at Rs.75/- per day and the same is reasonable and in those days, the daily wage of the labourer was not more than Rs.75/- per day. It is also his submission that the percentage of disability and the percentage of earning capacity may not be the same and it is for the Tribunal to assess the loss of earning capacity. In support of his contention, he has relied on the judgment of RAJKUMAR Vs. AJAYKUMAR AND ANOTHER[4]. Thus, his main submission is that there is no need to disturb the award passed by the Tribunal as far as the awarding of total compensation amount is concerned. The points that arise for consideration are: (i) Whether the Tribunal was justified in taking the loss of earning capacity at 80%; and (ii) What is the just and reasonable compensation that can be awarded for the claimant in the facts and circumstances of the case. 10. The claimant has been examined as P.W.1. According to her, after the accident, she was immediately shifted to Gandhi Hospital, Secunderabad for treatment and that she sustained fractures to her both legs and that she underwent operations in the hospital. It is also her case that though initially the Doctors told her that her leg is to be amputated, but at her request her leg was not amputated. Her further case is that she cannot move from the bed and is still suffering with unbearable pain and that the loss of earning capacity is 100% as her both legs are not functioning and that she is not able to earn any thing after the date of accident. 11. As seen from the cross-examination, no suggestion was given to her that the loss of working capacity is not 100%. She also denied the suggestion that she is able to do her normal work. On behalf of the claimant, Dr. B. Rama Krishna, Professor, Orthopedic, Osmania General Hospital, has been examined as P.W.2. According to him, he had examined P.W.1, on 03.02.2008, clinically and radiologically and assessed the disability at 80%. He found that P.W.1 was having compound communited fractures for both legs, right leg fracture treated by V-kneeling; left leg by applying external fixation. He further opined that though fracture bones united with severe restriction of movements at both ankles, but there was moderate restriction at both knees. He further opined that P.W.1 was unable to walk or stand, and that she was crawling on the floor. He further deposed that the disability of both lower limbs is estimated at 80%. He further opined that loss of earning capacity is 100%. P.W.2 was cross-examined at length and it is elicited that he did not treat P.W.1 immediately after the accident. He has also admitted that after one year of the accident P.W.1. approached him for disability certificate. I n RAJ KUMAR v. AJAY KUMAR AND ANOTHER (3 supra), relied by the learned counsel for the respondents, the Apex Court observed 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. 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 v. M/S I.D.L. CHEMICALS LTD (1 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%. 14. In this case, P.W.2 himself has opined that the loss of earning capacity is 100%. It is to be seen that P.W.1 was working as labourer and when there is severe restriction of movement at both ankles and she is unable to walk and stand; it is to be held that she cannot do any work, particularly the work of a labourer. When she cannot do the work of a labourer, then the loss of earning capacity has to be estimated at 100%. Of course, learned counsel for the claimant pointed a line from the judgment of the Tribunal, whereas it was observed that the Tribunal did not observe that the claimant was in fact crawling. It is not the question whether the claimant is crawling or not, the issue is whether she is in a position to do any work, particularly, the work of a labourer or not. If at all the claimant can do some other alternative work that must be brought on record either in the cross-examination or by adducing the evidence of other competent doctor. As far as the physical disability is concerned, though the disability is estimated at 80%, but, in all probabilities and in all fairness, it appears that the loss of earning capacity has to be taken at 100%. So this point is decided accordingly. 15. Coming to the aspect of income, the Tribunal has taken the income of the claimant at Rs.75/- per day and, accordingly, assessed the loss of earnings. The learned counsel for the claimant has relied on the judgment of this Court in case between P. YESHODAMMA v. T. BUCHIREDDY (2 supra). In that case, the accident occurred in the year 1997 and the income of the deceased was taken at Rs.100/- per day and the same was confirmed by this Court. 16. In the present case, the accident occurred on 04.10.2006. The claimant was aged about 46 years as on the date of accident. She claimed that she was earning Rs.100/- per day. Having regard to the wages paid in 1996, the Tribunal has taken the income of the claimant at Rs.75/- per day. In the circumstances, I consider just and reasonable to take the income of the claimant at Rs.80/- per day. Accordingly, the monthly income of the claimant comes to Rs.2,400/-. Since loss of earning capacity is estimated at 100%, the loss of earnings come to Rs.2,400/- per month; annual loss of earnings come to Rs.28,800/-. Multiplying the same using the appropriate multiplier i.e. ‘13’, the total loss of earnings comes to Rs.3,74,400/-. As far as the amounts awarded on other heads are concerned, I am not inclined to disturb the same. As far as the medical bills are concerned, considering the Exhibit-A.4-medical bills, I am of the view that the claimant can be awarded an amount of Rs.30,000/- in all for future medical expenses. The other amounts awarded to the claimant i.e., Rs.5,000/- towards transportation charges, Rs.5,000/- towards extra nourishment, Rs.25,000/- towards pain and suffering appear to be just and reasonable. So the total amount comes to Rs.4,39,400/-. As far as the awarding of interest is concerned, the Tribunal awarded 7.5% per annum from the date of the petition, till the date of deposit into the Court and I am not inclined to disturb the same. For the enhanced amount, the claimant is entitled to 6.0% interest. 17. The appeal is allowed, accordingly, as indicated above. ___________________________ JUSTICE B. CHANDRA KUMAR Date: 22-02-2011 KSM/MRB [1] ALD 1 (2010) 659 [2] 2004 ALD 2 894 [3] 2007 (6) ALD SC1 [4] (2011) 1 SCC 343