THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA No.149 of 2007 and MACMA No.1923 of 2009 Date:15th April, 2011 MACMA NO.149 OF 2007: Between: S.Aneesh Kumar …Appellant and 1. Union of India, Ministry of Defence, rep. by Major Adjutant 13, Punjab (Jind) Regiment 56, APO Golconda, Hyderabad & Anr. …Respondents MACMA NO.1923 of 2009 Between: Union of India, Ministry of Defence, (13 Punjab (Jind) Regment,) rep. by Major Adjutant, 8 Assam, Regiment 56, APO Golconda, Hyderabad. …Appellant/R1 and 1) S. Aneesh Kumar & Anr. …Respondents *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA No.149 of 2007 and MACMA No.1923 of 2009 COMMON JUDGMENT: ( Per Hon’ble Sri Justice B.Seshasayana Reddy) These two MACMAs are directed against the Judgment, dated 18.09.2006, passed in O.P.No.54 of 2002 on the file of the Chairman, MACT-cum-I Additional Metropolitan Sessions Judge-cum-XV Additional Chief Judge, Hyderabad, whereby and whereunder the learned Additional Chief Judge allowed the claim of the claimant in part awarding compensation of Rs.18,18,000/- with proportionate costs and interest at 7.5% p.a. from the date of filing of the petition till the date of realization to the petitioner-injured. 2. Background facts, in a nutshell, leading to filing of both these appeals are: a) S.Aneesh Kumar is the claimant in O.P.No.54 of 2002. He filed the claim petition under Sections 166 and 163-A of the Motor Vehicles Act, 1988 (for short, ‘the Act’) and Rule 455 of the Motor Vehicle Rules r/w.Sec.140 of the Act, against the respondents 1 and 2 therein claiming compensation of Rs.30,00,000/- for the injuries sustained by him in the accident occurred on 13.08.2001. On the date of the accident, he was riding a scooter bearing No.AP-9J-6063 at Nanal Nagar Cross Roads, Rethi Bowli, Hyderabad; a military truck bearing No.88D 75942H came in a high speed, driven in a rash and negligent manner, and dashed the scooter. As a result, the rider of the scooter-claimant fell down and sustained grievous injuries. A constable of Langar House Police Station, Hyderabad, shifted him to the hospital for treatment. A case was registered by the Station House Officer, Langar House Police Station, for the offence under Section 338 IPC, on 13.08.2001. He took treatment in the Apollo Hospital for a period of one month. He incurred expenses of Rs.1,56,214/- during the said period. Thereafter, he took treatment in Reliance Hospital. Despite taking treatment in various hospitals, he could not regain normality. Because of the injuries received by him, he lost his total earning capacity. He is a Law Graduate and he practiced in High Court of A.P. for six years and thereafter, he joined as Executive Legal in M/s.Gani and Co., Advocates, on a monthly salary of Rs.7,100/-. He is the only earning member in the family comprising of himself, his wife and his minor daughter aged 2 years. His father also retired from service and he is depending on his earnings. The accident occurred due to rash and negligent driving of the driver of the military truck. Hence, he filed the claim petition against the owner of the truck and also Kendriya Vidyala, Langer House, Hyderabad, claiming compensation of Rs.30,00,000/-. b) The respondents 1 and 2 field counters resisting the claim of the claimant. The respondents denied the occupation and earnings of the claimant. They pleaded contributory negligence on the part of the claimant for occurrence of the accident. c) The Tribunal framed the following issues for trial: 1) Whether the accident to the petitioner on 13.8.2001 at about 8.30 a.m. on Nanal Nagar Cross Roads, Reti Bowli, Hyderabad took place due to rash and negligent driving of military truck bearing registration No.88D 75942H? 2) Whether the petitioner is entitled to compensation from the respondent, and if so, what amount? 3) Whether the compensation as claimed by the petitioner is exorbitant, excessive and imaginary? 4) Whether the petitioner is entitled to interest at 24% per annum from the date of accident? 5) To what relief? The Tribunal also framed the additional issues, which reads as hereunder: i) Whether the offending vehicle/Army truck baring No.88D 75942H belongs to Respondent No.1 and under the control of Respondent No.2? ii) Whether Respondent No.2 is unnecessary party to this claim petition? d) On behalf of the claimant, he got his wife examined as PW.1, apart from examining four more witnesses as PWs.2 to 5 and marked 308 documents as Exs.A1 to A308. On behalf of the 1st respondent, two witnesses were examined as RW.1 and RW.2. e) The Tribunal, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the truck and that the claimant sustained permanent disability and thereby awarded compensation of Rs.18,80,000/- with proportionate costs and interest at the rate of 7.5% p.a. from the date of filing of the petition till the date of realisation, by judgment dated 18.09.2006. Hence, these two appeals. MACMA No.1923 of 2009 is filed by Union of India, Ministry of Defence, (13 Punjab (Jind) Regment) rep. by Major Adjutant, 8Assam, Regiment 56, AP Golconda, Hyderabad, assailing the judgment and decree, dated 18.09.2006, passed in O.P.No.54 of 2002. Whereas, the claimant filed MACMA No.149 of 2007 dis-satisfied with the quantum of compensation. 3. The parties herein after referred to as they are arrayed in MACMA No.149 of 2007. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the appellant/claimant submits that the Tribunal has not taken into consideration the future prospects of the claimant while assessing the compensation and therefore, the quantum of amount of compensation awarded by the Tribunal is required to be enhanced considerably. A further submission has been made that the Tribunal having accepted the bills, committed error in not granting the amount covered under the bills and instead granted Rs.7,00,000/- towards medical expenses. 6. Learned Assistant Solicitor General appearing for the 1st respondent submits that the quantum of amount granted to the claimant is on high side and therefore, the same is required to be reduced considerably. He would also submit that the claimant has contributed his negligence to the occurrence of the accident and in which case, the compensation awarded by the Tribunal is to be reduced to half of it. 7. The issues that call for adjudication in these appeals are: 1) Whether the accident occurred due to rash and negligent driving of the driver of the truck bearing No.88D 75942H? 2) Whether the quantum of amount allowed to the claimant by the Tribunal is just and proper? 8. PW.5 Mohd. Khaja is the eye witness to the accident. He is a Police Constable in Langar House Police Station, Hyderabad. He stated that the military truck came in a high speed at the time of the accident. The 1st respondent suggested to him that the accident had not occurred on account of negligent driving of the driver of the truck. The said suggestion had been flatly denied by him. He is an independent witness and there is no reason to discard his testimony. RW.1 is stated to be in the crime vehicle at the time of the accident. For the reasons best known to the 1st respondent, the driver of the truck has not been examined. In the absence of the examination of the driver of the truck, no importance can be given to the evidence of RW.1, who is stated to be sitting by the side of the driver. In a way, RW.1 is an interested witness and therefore, no reliance can be placed on his testimony. PW.5, as stated above, is an independent witness and he has no motive to speak false. The Tribunal considered the evidence of PW.5 in right perspective and recorded a finding that the accident occurred due to rash and negligent driving of the driver of the truck bearing No.88D 75942H. We do not see any valid ground to disturb the finding recorded by the Tribunal, in this regard. 9. PW.1 is the wife of the claimant. The claimant is stated to be not in a position to give evidence and he is confined to bed. PW.1 testifies that the claimant took treatment in various hospitals and because of the injuries received by him in the accident, he lost his total earning capacity. She also testifies that the vision of the claimant is blurred in right eye and loss of vision in the left eye and his speech also affected. PW.3 is the doctor, who treated the claimant in Apollo Hospital, Hyderabad. Nature of treatment provided to the claimant has been stated by him in detail. According to him, the claimant sustained permanent disability to a tune of 90% to 95%. The claimant placed on record, medical bills as proof of expenses incurred by him. The nature of injuries received by the claimant, coupled with the evidence of PW.3, amply proves that the claimant sustained permanent disability and the said disability has affected his earning capacity. In the given facts and circumstances, we have no reason to differ with the findings of the Tribunal that the claimant sustained 90% disability. 10. General principles relating to compensation in injury cases are as follows: 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 traumas 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. 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, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. What requires to be assessed by the Tribunal is the effect of the permanent 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 terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). 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 clamant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 11. The Supreme Court in Raj kumar v. Ajay Kumar[1] has summarized the principles for determination of compensation in injury cases. Para.19 of the cited judgment needs to be noted and it is thus: “19. 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 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 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.” 12. The Tribunal has taken the earnings of the claimant at Rs.5,000/- p.m. and arrived the total loss of earings of the claimant at Rs.9,18,000/-. The amount towards loss of earnings arrived by the Tribunal is based on sound reasons and therefore, we are not inclined to interfere with the said amount. 13. With regard to the medical expenses, the claimant placed on record the hospital bills as proof of the same. Indeed, the Tribunal referred the medical expenses incurred by the claimant in para.29 of the judgment, which reads as hereunder: “29. Ex.A57 is the statement filed by PW.1 towards medical expenses i.e., Hospital Expenses and Drugs Expenses from 13.8.2001 to 20.12.2001 with regard to Apollo and Reliance Hospitals for a total amount of Rs.4,80,425.60. Ex.A1 is another statement filed by PW.1 with regard to medical expenses i.e., Hospital Expenses, Drugs Expenses and Physiotherapy from 20.12.2001 to 5.10.2022 for a total amount of Rs.5,75,724.50 ps. Thus, the total amount covered by Ex.A57 and Ex.A1 comes to Rs.10,56,150.10 ps. Exs.A2 to 54, 66, 69 to 210, 211 to 221, 222 to 271 covers medicines, physiotherapy charges, hospital charges etc., and if the said bills are calculated it comes to an amount of Rs.3,90,151.81 ps. only. PW.3, medical practitioner who is treating the petitioner did not speak about the medical expenses incurred by the petitioner. But he stated that the medical expenses that could be incurred on the petitioner would be about Rs.8,000/- to Rs.10,000/- per month towards medicines including physiotherapy and speech therapy. However, the fact is that, the petitioner sustained head injury and was thrice operated in Apollo Hospital and he is completely bed ridden and unable to sit and speak and some one has to attend him continuously. Keeping in view of the above circumstances, the petitioner is entitled for compensation towards medicines, hospital expenses already incurred, future expenses, extra nourishment, transport charges and other incidental expenses etc. For all these heads, I feel it just and reasonable to award an amount of Rs.7,00,000/- to the petitioner. Accordingly, the said amount is awarded under the above heads. Thus, in all the petitioner is entitled for Rs.9,18,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.7,00,000/- = Rs.18,18,000/- towards compensation for the disability sustained by him.” The Tribunal having referred the medical bills proceeded to award only Rs.7,00,000/- towards medical expenses. In our view, awarding only Rs.7,00,000/- having accepted the medical bills, cannot be sustained. The total amount claimed by the claimant towards medical bills is Rs.14,46,302.28 ps., which can be rounded to Rs.14,50,000/-. Thus, the claimant, in all, is entitled to Rs.9,18,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.14,50,000/- = Rs.25,68,000/-. Accordingly, the quantum of compensation amount awarded to the claimant is enhanced from Rs.18,18,000/- to Rs.25,68,000/- with interest at 7.5% p.a. from the date of filing of the petition till the date of realisation with proportionate costs. 14. In the result, MACMA No.149 of 2007 filed by the claimant is partly allowed and MACMA No.1923 of 2009 filed by the 1st respondent-Union of India, Ministry of Defence, is dismissed. _____________________ B.SESHASAYANA REDDY, J ________________ P.DURGA PRASAD, J Date:15th April, 2011. CS THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA No.149 of 2007 and MACMA No.1923 of 2009 (Common Judgment of the Division Bench prepared by Hon’ble Sri Justice B.Seshasayana Reddy) Date:15th April, 2011 [1] (2011) 1 SCC 343