THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No.2942 of 2003 and CROSS OBJECTIONS (SR)No.93076 of 2003 Dated 20th January, 2011 Between: Oriental Insurance Co. Ltd., Nizamabad …Appellant And G. Ghanti Bai and another …Respondents Counsel for the Appellant: Sri A.V.K.S. Prasad Counsel for respondent No.1: Sri P. Radhive Reddy Counsel for respondent No.2: -- The Court made the following: COMMON JUDGMENT: Feeling aggrieved by the award dated 04.10.2002 in O.P.No.118 of 1999 on the file of the Motor Accidents Claims Tribunal- cum-Additional District Judge, Nizamabad (for short ‘the Tribunal’) granted in favour of the claimant, respondent No.2 in the O.P. – insurance company filed the present C.M.A. and not being satisfied with the quantum of compensation, the claimant/respondent No.1 in C.M.A. filed the Cross Objections. For convenience, the parties hereinafter are referred to as they are arrayed in the C.M.A. Respondent No.1 herein filed the above noted O.P. under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’) claiming a total compensation of Rs.2,00,000/- towards injuries sustained by her in an accident occurred on 15.01.1999 involving jeep bearing No.AP 25 T 5661 and lorry bearing No.AP 25 T 4317. The lorry was insured with the appellant. Respondent No.1 has alleged that she was travelling in the jeep and suffered fracture of left hand shoulder and also back bone apart from receiving injuries to both the legs and other parts of the body. On the respective pleadings of the parties, the Tribunal framed the following issues: “1. Whether the accident was due to rash and negligent driving of the lorry bearing No.AP 25 ZT 4317 by its driver? 2. Whether the petitioner is entitled for compensation, if so, to what amount and from which of the respondents? 3. To what relief?” Under issue No.1, it has found that the accident occurred on account of the rash and negligent driving of the driver of the lorry bearing No.AP 25T 4317. Under issue No.2, the Tribunal has awarded a total sum of Rs.1,10,000/- as compensation for the injuries suffered by respondent No.1, which includes Rs.5,000/- towards extra nourishment and Rs.5,000/- towards past and future suffering. As regards issue No.1, the appellant, being the insurance company, has not questioned the finding rendered by the Tribunal on the cause of the accident. With regard to issue No.2, Sri A.V.K.S.Prasad, learned counsel for the appellant, submitted that the Tribunal committed a grievous error in placing reliance on Ex.A15 – disability certificate, ignoring the nature of the injuries as deposed by P.W.2 - the Doctor himself. The learned counsel further submitted that the Tribunal failed to assess the actual loss suffered on account of the injuries sustained by respondent No.1 by adopting a proper and sound legal approach. Sri P. Radhive Reddy, learned counsel representing respondent No.1 sought to support the award of the Tribunal. In a case of injuries, the claimant is entitled to receive compensation under two heads, namely, pecuniary and non- pecuniary. The pecuniary sub-heads are – (i) Loss of income; (ii) Transport to hospital; (iii) Attendant charges; (iv) Extra diet and nutrition; and (v) Medical expenses. Non-pecuniary sub-heads are – (i) Pain and suffering; (ii) Loss of amenities of life; (iii) Loss due to reduction in expectation of life; (iv) Loss of expectation of marriage; and (v) Loss of earning capacity. It is the case of the claimant that he suffered permanent partial disability to an extent of 45% and therefore, he is entitled to compensation therefor. P.W.2, who is the Assistant Civil Surgeon and is stated to have treated respondent No.1, has deposed in his evidence that respondent No.1 was admitted as in-patient in the District Head Quarters Hospital on 15.01.1999 and discharged on 21.01.1999. He has further deposed that he has clinically and physically examined respondent No.1 and issued disability certificate “45% of the partial disability at wedge compression fracture lumbar II vartibae with weakness in right lower limb”. Respondent No.1 filed Ex.A3 – out-patient ticket issued by P.W.2 which shows that the patient was admitted on 15.01.1999 and discharged on 21.01.1999, and was given belt. Even assuming that respondent No.1 was able to prove on the basis of the said document that he has received treatment as in- patient in the District Head Quarters Hospital from 15.01.1999 to 21.01.1999, no medical record has been placed to support Ex.A15 disability certificate issued by P.W.2 to the effect that respondent No.1 has suffered permanent partial disability to the extent of 45%. The evidence on record does not show that respondent No.1 has not undergone any surgical procedure and the fact that the fracture at lumbar region was not corrected with surgery shows that the fracture has been healed with rest for one month as suggested by P.W.2 in Ex.A3. Though this Court ordinarily does not sit in judgment over the opinions of the experts, in the present case, the admitted facts would clearly indicate the improbability of respondent No.1 suffering permanent partial disability having regard to the nature of the injury and the treatment she has received. Added to this, no other medical record has been placed by respondent No.1 in support of the claim that she has suffered permanent partial disability that too to an extent of 45%. Therefore, this Court is unable to accept the opinion of P.W.2 as given in Ex.A15 that respondent No.1 has suffered permanent partial disability to the extent of 45%. The Tribunal has placed reliance on the disability certificate and awarded a lumpsum amount of Rs.1,00,000/- as compensation for the injuries suffered by respondent No.1 without venturing into the discussion as to the income respondent No.1 was earning and the consequential loss she would have suffered on account of permanent partial disability. The Tribunal failed to discuss the two heads of losses with reference to the evidence on record. The award of Rs.1,00,000/- by the Tribunal cannot, therefore, be sustained. The next question to be considered is what is the appropriate compensation respondent No.1 is entitled to receive. As noted above, as per the evidence of P.W.2, respondent No.1 has suffered one grievous injury. Even if Section 163-A of the Act is taken as a guide, she is entitled to a sum of Rs.5,000/- for sustaining the injury. As she was advised bed rest for one month, she would have lost income during that period. Respondent No.1 was stated to be an agriculturist and it is reasonable to presume that she would have lost a sum of Rs.5,000/- on account of her confinement to the bed during the period of one month. It is also reasonable to presume that respondent No.1 would have spent at least Rs.5,000/- towards medicines and extra nourishment. Taking into consideration these permissible heads, respondent No.1 is entitled to a sum of Rs.15,000/- only. However, at the hearing, it has come out that the appellant was permitted to withdraw half of the awarded amount with costs. Having regard to this fact, though respondent No.1 was found entitled only to a sum of Rs.15,000/- as she has already withdrawn higher amount, it would be appropriate that respondent No.1 is permitted to retain the amount withdrawn by her. It is, however, declared that the appellant is not liable to pay the balance of the awarded amount. In the light of the aforementioned reasons, I do not find any merit in the Cross Objections filed by respondent No.1. Accordingly, C.M.A.No.2942 of 2003 is partly allowed and Cross Objections (SR) No.93076 of 2003 are dismissed. ________________________ C.V.NAGARJUNA REDDY, J 20th January, 2011 GHN