IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIRST DAY OF OCTOBER TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.2899 OF 2005 Between: Kunche Kasturi Bai ......Appellant AND Pilaka Appalareddy and others ......Respondents Counsel for the petitioner: Sri I.Gopala Reddy Counsel for the Respondents: Sri T.Ramulu The Court made the following:- HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.2899 OF 2005 JUDGMENT: This appeal is directed against the order dated 14.07.2005 in O.P. No.1686 of 2003 on the file of Motor Accidents Claims Tribunal- Cum-III Additional District Judge, Visakhapatnam, (for short, “the Tribunal”), wherein the claim of the appellant herein was allowed in part, awarding compensation of Rs.88,948/- with interest at the rate of 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant/claimant and the learned counsel for the respondents. Perused the records. 3. The appellant herein filed claim application seeking compensation of Rs.4,00,000/- on account of the injuries sustained by her in a motor vehicle accident that occurred on 25.05.2003 at 3.45 PM near N.A.D. Kotha Road church, Visakhapatnam. According to the claimant, on that day, when she was crossing N.H.5 road, after visiting church of god, at N.A.D.Kotha Road, a TVS XL bearing Registration No.A.P.31C 326 driven by respondent No.1 in a rash and negligent manner dashed against her, as a result she fell down and sustained fracture of right leg, besides injuries to fore head and right hand. The claimant was admitted in K.G.Hospital, Visakhapatnam and she underwent treatment for more than two months. According to her the injuries led to permanent disability on account of dislocation of right hip and right lumbar region of the right leg. 4. The respondents filed counter opposing the claim and denying their liability to pay the compensation. 5. The Tribunal framed the following points for consideration: “1.Whether the accident dated 25.05.2003, in which the petitioner sustained injuries has taken place on account of the rash and negligent driving of moped TVS-XL bearing Registration No.A.P.32C 326 by it’s driver-first respondent? 2. Whether the petitioners is entitled for compensation, and if so, from which of the respondents? 3. To what relief?” 6. In support of her claim, the claimant examined herself as PW.1 and Dr.B.UdayaKumar, Associate Professor of Orthopaedics, as PW.2 and got marked Exs.A-1 to A-10. No oral or documentary evidence was adduced on behalf of the respondents. 7. On consideration of the evidence available on record, the Tribunal held on point No.1 that the accident occurred due to rash and negligent driving of the TVS-XL moped by respondent No.1. On point No.2, the Tribunal held that the claimant is entitled to a total compensation of Rs.88,948/-. Not satisfied with the award, the claimant filed the present appeal, seeking enhancement. 8. The finding of the Tribunal that the accident occurred on account of the rash and negligent driving of the moped by respondent No.1, has become final and no appeal was filed by the respondents. Similarly, the finding of the Tribunal that the respondents were jointly and severally liable to pay the compensation is also not questioned. 9.The only point, which arises for consideration in this appeal, is that whether the claimant is entitled for compensation and if so, to what extent? 10. The Tribunal awarded a sum of Rs.23,948/- towards loss of earnings for a period of two months on account of hospitalization, about which there was no dispute. The Tribunal awarded a sum of Rs.50,000/- as compensation for pain and suffering, about which there was no dispute. The Tribunal awarded a sum of Rs.15,000/- towards extra nourishment, medicines and treatment charges. But, as seen from the body of the judgment, a sum of Rs.15,000/- was awarded towards medical expenses actually covered by bunch of bills Ex.A7 and no separate amount is awarded towards extra nourishment. 11. Learned counsel for the appellant would mainly contend that as per the medical evidence of PW.2 coupled with Ex.A6 the claimant has sustained permanent disability to the extent of 40% and no amount is awarded for the same. 12. Learned counsel for the respondents would contend that Ex.A6 cannot be taken into consideration, as PW.2, who issued Ex.A6, was not the doctor who treated the injured. 13. It is not disputed that the claimant sustained the following injuries: 1. Swelling and contusion of 10 X 10 cms on fore head involving orbits both sides. 2. Swelling of right fore arm and hand and multiple abrasion over that swelling. 3. Tenderness in the right hip and right lumbar region. 14. Out of the above, injuries 1 and 2 are simple in nature and injury No.3 is grievous, as it involved fracture of right hip bone. PW.2 testified that he examined PW.1 and found central fracture dislocation of right hip and issued disability certificate-Ex.A6 to the effect that there is permanent disability of 40% on account of the said injury. It is also in his evidence that PW.1 was treated in K.G.Hospital under the supervision of Dr.M.Venkateswararao and Ex.A2-wound certificate, was issued by authorities of K.G.Hospital. Admittedly, PW.1 was admitted in K.G.Hospital on 25.05.2003 and was discharged on 29.07.2003. It is to be noted that PW.2 is also an Associate Professor of Orthopaedics in K.G.Hospital, Visakhapatnam. Simply because PW.2 was not the doctor who treated PW.1, the certificate-Ex.A6 or the testimony of PW.2 cannot be rejected. In a big hospital like King George, it may not be possible for the same doctor, who admitted the patient to continue the treatment for a period of two months and to re-examine her later after lapse of time to assess the impact of the injury and the nature and extent of permanent disability. The testimony of PW.2, coupled with Ex.A6, which is otherwise not discredited in any manner and there being no reason to disbelieve the same, would clearly establish that PW.1, the claimant suffered permanent disability of 40% on account of sustaining injuries. The disability certificate-Ex.A10, issued by the medical board stating that the extent of permanent disability is 45% was, however, rightly rejected by the Tribunal on the ground that it was no way connected with the said doctor, who was examined as PW.2. The medical evidence on record, therefore, shows that the grievous injury sustained by PW.1, on account of fracture of the right leg, has resulted in permanent disability to the extent of 40%. However, PW.1 has admittedly, rejoined duty and is performing duties at Primary Health Center and she is continuing to draw the same pay and allowances as before. The injury or the resultant permanent disability has not adversely affected her earning capacity and, therefore, there is no loss of income on account of permanent disability. However, the testimony of PW.2, coupled with Ex.A6 would show that on account of the permanent disability there is clear dislocation of right hip movements and the patient is unable to squat and she gets pain while walking for long distance with limping. Though the injury and the consequent permanent disability had not resulted in loss of earning capacity, but still they have resulted in restriction of movements and physical immobility to some extent. It is, therefore, considered to be just and proper to award a sum of Rs.20,000/- towards the physical disability, involving restriction of movements and discomfort in making use of her right lower leg, on account of the fracture injuries sustained and on account of the consequent permanent disability. The claimant is also held entitled for a sum of Rs.5,000/- towards extra nourishment charges and Rs.5,000/- towards attendant charges, as she must have necessarily engaged the services of someone to assist her during her long period of hospitalization, on account of the nature of the injuries sustained by her. 15. In the circumstances, the claimant is held entitled for enhancement of compensation of Rs.30,000/- together with interest at the rate of 7.5% per annum on the enhanced amount from the date of filing of the appeal. The award passed by the Tribunal is modified accordingly. 16. In the result, the appeal is allowed to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 21.10.2009 Ivd