IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.2689 of 2007 & 1925 of 2010 DATE:02.02.2011 M.A.C.M.A.No.2689 of 2007 Between: Smt.Renu …… Appellant And K.Sagar Rao and another …..Respondents M.A.C.M.A.No. 1925 of 2010 Between: United India Insurance Co. Ltd …… Appellant And Smt.Renu and another …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU M.A.C.M.A.No.2689 of 2007 & 1925 of 2010 COMMON ORDER : These two appeals are filed by the claimant as well as by the insurance company respectively questioning quantum of compensation awarded at Rs.6,72,808/- as against total claim of Rs.14.45 lakhs in O.P. No.1083 of 2001 by the Motor Accidents Claims Tribunal-cum-IV Additional Chief Judge, City Civil Court, Hyderabad by award dated 08.02.2005. 2) In this appeal, there is no dispute about the claimant/injured suffering injuries in motor accident which took place on 05.06.2000 when she was travelling in Mahindra jeep bearing No.AP 9K 1899 and about driver of the said jeep being responsible for this accident due to rash as well as negligent driving. There is no dispute about insurance coverage for the said jeep by the date of accident and about liability of the insurance company for payment of compensation to the claimant/injured. The dispute is only with regard to the quantum of compensation. 3) The injured apart from examining herself as P.W-1, examined two doctors P.Ws 2 and 3 from Appollo hospital, Vikrampuri, Hyderabad where she took treatment for her injuries. Evidence of P.Ws 2 and 3 and Ex.A-5 discharge summary of the Appollo Hospital disclose that the injured suffered 5 fractures. They are (1) Fracture of left temporal bone, (2) Fracture of Mandible, (3) Fracture of 1-7 ribs, (4) Multiple fracture of both public rami and (5) Fracture of left sub trochanteric femur. The above medical evidence further reveals that in Appollo Hospital, Vikrampuri, external fixtures were arranged for Pelvis, interlocking of left femur was done and Tracheostomy was done under general anaesthesia. P.W-3 is an Orthopaedic specialist. P.W-2 is a doctor in general medicine. P.W-3 certified partial permanent disability of the injured at 50% Orthopaedically. Whereas P.W-2 stated before the lower Tribunal that the injured is suffering from partial permanent disability of 85% consisting of orthopaedic disability of 50% and Neurological disability of 35% (totalling 85%). The lower Tribunal arrived at partial permanent disability of the injured at 25% and calculated the compensation amount for the said disability taking income of the claimant as teacher at Rs.4,000/- per month or Rs.48,000/- per year. 4) The lower Tribunal awarded compensation of Rs.4,08,808/- towards medical expenses, Rs.15,000/- towards pain and suffering, Rs.10,000/- towards extra nourishment, Rs.6,000/- towards attendant charges, Rs.1,000/- towards transport charges and Rs.2,32,000/- towards 25% of permanent disability. Having regard to injuries sustained by the claimant, nature of treatment received by the injured, expenses incurred for treatment and permanent disability suffered by the injured, it cannot be said that the above heads of compensation awarded by the lower Tribunal is in any way excessive. So, at the outset, I find that there is no substance in the appeal filed by the insurance company for the purpose of reducing the compensation amount. 5) It is contended by the counsel for the claimant/injured that the lower Tribunal did not award medical expenses of Rs.47,400/- covered by Ex.A-13 issued by A.P. Super Speciality Dental Hospital, Hyderabad. Ex.A-13 is a certificate coupled with receipt passed by the said dental hospital. Even though evidence of P.W-2 and Ex.A-5 discharge summary of the Appollo hospital denote the injured suffering injuries to her mandible and teeth, the claimant did not choose to examine any doctor from A.P. Super Speciality Dental Hospital, Hyderabad to prove treatment taken in that hospital and the expenses covered by Ex.A-13 certificate and receipt. In the absence of medical evidence of taking treatment and incurring expenditure therefor in that dental hospital, the amount covered by Ex.A-13 was rightly not taken into consideration for awarding the same by the lower Tribunal. 6) In so far as medical expenses covered by Ex.A-17 is concerned, the lower Tribunal should not have disallowed the same. Ex.A-17 consists of bunch of 36 bills for purchase of merchandise from various medical shops. Proof of bills of merchandise by examining the respective traders need not be undertaken. It is evidence of P.W-1 that she has purchased those medicines during the course of her treatment. Total of the said bills comes to Rs.22,401/-. I find that the claimant is entitled for the amount covered by Ex.A-17 over and above the medical expenses awarded by the lower Tribunal. 7) In so far as pain and suffering is concerned, the lower Tribunal awarded a small amount of Rs.15,000/- under that head. The medical evidence discussed above reveals that the injured suffered five fractures, out of which two are multiple fractures and the injured underwent three surgical operations in Appollo Hospitals, Vikrampuri, Hyderabad. Apart from the above fractures, Ex.A-5 reads that C.T.Scan of brain shows blood in 4th ventricle suggesting a brain swelling coupled with slit like injury in the ventricle. It is the internal injury relating to fracture of left temporal bone. All the above fractures and internal examinations and investigations apart from surgical treatments received by the injured, I am of the opinion that award of amount of Rs.15,000/- towards pain and suffering is a pittance. The lower Tribunal did not award any separate compensation for the fractures sustained and for the ordeal of surgical treatment undergone by the injured. If compensation of Rs.15,000/- for each simple fracture and Rs.20,000/- for each multiple fracture is to be awarded towards pain and suffering, then it comes to Rs.85,000/-. Having regard to further surgical operations undergone by the claimant, I am of the opinion that amount of Rs.1,00,000/- claimed by the claimant towards pain and suffering for the injuries as well as for the surgical treatment undergone by her, is appropriate and legal. 8) I do not propose to make any increment under the heads of extra nourishment and transport charges apart from the amounts awarded by the lower Tribunal. 9) In so far as attendant charges are concerned, the claimant filed Ex.A-14 certificate said to have been issued by one Sujatha, Nurse from Indian Read Cross Society who attended on the injured during the period of her treatment. No doubt, Sujatha is not examined. As per the said certificate, she was paid a sum of Rs.1,800/- per month apart from food during the period of her work as Nurse with the injured. According to P.W-2, the injured required assistance of a nurse throughout her life. I am of the opinion that the petitioner is entitled at the rate of at least Rs.2,500/- per month for six months during the period of her taking treatment in Appollo Hospitals. So, the amount under the head of attendant charges comes to Rs.15,000/-. 10) In so far as permanent disability for the petitioner is concerned, the lower Tribunal took partial permanent disability of the injured as 25% in spite of the medical evidence of P.Ws 2 and 3 at 85%. It is contended by the counsel for the injured/claimant that not only physical disability of the injured has to be taken into consideration, but also her functional disability with reference to the avocation or profession in which she was at the time of accident, while determining the percentage of disability and placed reliance on Division Bench in C.N.Somasekhar Reddy V. M/s.I.D.L. Chemicals Limited[1] of this Court on this aspect. No doubt, evidence of P.Ws 2 and 3 with regard to the percentages of disability could not be substantiated by giving any scientific data for arriving at the said percentages. It is not stated either by P.W-2 or by P.W-3 as to on what scale and on what principle the percentages were arrived at by each of them either Orthopaedically or Neurologically. P.W-2 is not an expert in Neurological branch. He is a doctor in general medicine. So, he may not be competent to certify the Neurological disability of the injured. 11) P.W-3 is not the doctor who issued Ex.A-26 disability certificate. The doctor who issued Ex.A-26 disability certificate is not examined. P.W-2 is also not competent to certify orthopaedic disability of the injured as he is not practising in orthopaedic branch. The lower Tribunal took into account column 8 of Ex.A- 26 and based the certified disability as 35%. The said 35% contained in Ex.A-26 is only in respect of the lower limbs. In Ex.A-26 itself, the said doctor certified total permanent partial disability at 50% in the same column. The lower Tribunal overlooked the said hand writing contained in column 8 of Ex.A- 26. Having regard to the evidence on record, I am of the opinion that percentage of disability has to be taken at 40% giving a margin of 10% towards exaggeration by the medical professionals in favour of the injured. 12) It is contended by the appellant’s counsel that no amount was given towards loss of income for the injured due to injuries suffered by her and that loss of income for 28 months was included while calculating the compensation for disability. The question of awarding loss of earnings subsequent to the date of accident may not arise particularly when separate compensation is being awarded towards partial permanent disability for the entire life time taking the appropriate multiplier applicable to the age of the injured. If the amount of compensation payable for 40% disability is calculated at the same rate as that of the lower Tribunal, then it comes to Rs.3,71,200/-. 13) Thus, total amount of compensation payable to the injured/claimant comes to Rs.9,28,409/- which is just and proper. M.A.C.M.A.No.2689 of 2007:- In the result, the appeal is partly allowed enhancing the compensation amount from Rs.6,72,808/- to Rs.9,28,409/- with proportionate costs. M.A.C.M.A.No.1925 of 2010:- In the result, the appeal is dismissed with costs. _______________________________ SAMUDRALA GOVINDARAJULU, J February 02, 2011 ksh [1] 2010(2) ALT 279 (D.B)