IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.4721 of 2008 Dated:13-10-2011 Between: Mandava Surendra Kumar ….Appellant. And B.A.Padmanabha Rao and another. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.4721 of 2008 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is at the instance of claimant directed against the award passed in O.P.No.2490 of 2004 by the III Additional Chief Judge, City Civil Court, Hyderabad on 20.07.2007. The appellant herein has originally filed a petition claiming compensation of Rs.12,50,000/- and subsequently got enhanced by way of amendment to Rs.20,50,000/-. The facts leading to the filing of the petition by the petitioner are that on 12.03.2004 while the claimant was proceeding on his motorcycle, a Maruti Van bearing No.AP 28L 3130 came in a rash and negligent manner in the opposite direction and dashed the motorcycle of the claimant, as a result of which, he fell down and sustained injuries. He took treatment in Apollo Hospital and at Uday Clinic and suffered disability of 40%. As he is a LIC agent and also running a press, he sustained huge loss of his earnings and future prospects. The 1st respondent, who is the owner-cum-driver of the Maruti Van, has opposed the application by pleading that the claimant was talking in cell phone bending his head towards shoulder and negligently drove the vehicle and met with accident and there is no negligence on his part. The 2nd respondent Insurance Company has opposed the application pleading that the 1st respondent was under intoxication condition drove the vehicle, which is an offence, therefore the liability under the policy has ceased, as such they are not liable to pay any compensation. On the above pleadings, the Tribunal has framed the following issues: (1) Whether the accident occurred on 12.03.2004 at about 4.45 p.m due to rash and negligent driving of the Maruthi Van bearing No.AP 28L 3130 by its driver causing permanent disability to the petitioner? (2) Whether the petitioner is entitled to the compensation and if so, to what amount and from which of the respondents? (3) To what relief? The claimant examined himself as P.W.1 and also examined P.Ws.2 to 6 on his behalf and got marked Exs.A.1 to A.14 and Ex.X.1. On behalf of the insurance company, R.W.1 was examined and got marked Exs.B.1 to B.3. Taking into consideration of the said oral and documentary evidence, the Tribunal has held issue No.1 in favour of the petitioner holding that the accident was occurred due to rash and negligent driving of the vehicle by the 1st respondent. With regard to issue No.2 Tribunal awarded compensation of Rs.5,36,200/- for the injuries sustained by the claimant. Aggrieved by the said award and decree, the claimant has filed the present appeal for enhancement of the compensation. Learned counsel for appellant has pleaded that the Tribunal has failed to take into consideration of disability certificate issued by P.W.3 and also disability certificate issued by the Medical Board of Osmania General Hospital, Hyderabad while awarding compensation for the injuries sustained by the petitioner. He further pleaded that the Tribunal has failed to take into consideration of the medical bills despite examination of P.Ws.4 and 5. Learned counsel for appellant has further pleaded that even though the claimant examined physiotherapist as P.W.6 and the attendant as P.W.2, the Tribunal has not awarded any amount towards physiotherapy treatment and also attendant charges. He further pleaded that the Tribunal has failed to award any amount towards loss of earnings. Learned counsel for appellant has further pleaded that the compensation awarded by the Tribunal towards pain and suffering, loss of amenities in live, nutritious food are very meager. Learned counsel appearing for the insurance company has supported the award passed by the Tribunal and pleaded that the Tribunal has rightly rejected the disability certificate issued by P.W.3 and also the disability certificate issued by the Medical Board. The claimant as P.W.1 has stated that he sustained 13 fractures in the said accident and immediately he was shifted to Apollo hospital, Jubilee Hills, Hyderabad. He took treatment as inpatient from 12.03.2004 to 26.03.2004 and he was operated 6 times for different fractures in the said hospital and after discharge he continued his treatment as outpatient. He also took treatment at Udai hospital and underwent operation twice and later he took treatment in Udai clinic and at Ahuja polyclinic, Secunderabad with Dr.V.K.VPrasad, Orthopaedician and spent an amount of Rs.8,00,000/- in different hospitals. According to him there is shortening of his right leg about 2 inches and stiffness of right hip, knee, ankle and right wrist and limitation of movements. Dr.V.K.V. Prasad, treating him as outpatient assessed disability at 40% partial permanent after examining him clinically and radiologically and issued the disability certificate Ex.A.7. The claimant in order to establish the disability certificate examined the Dr.V.K.V.Prasad as P.W.3. According to him, P.W.1 came to his clinic on 05.06.2006 and after examining him clinically he advised him to get X-rays of right hip, right thigh, right leg and right wrist. On 19.09.2006 P.W.1 came back to him with X-rays and he has issued the disability certificate Ex.A.7. According to him, the disability is 40% permanent and partial. The Tribunal has disbelieved the disability certificate issued by P.W.3 as he was not the treating doctor and he has only issued the disability certificate after more than 2 years of the accident. P.W.3 also admitted in his evidence that P.W.1 came to his clinic on 05.06.2006 and according to him P.W.1 sustained injuries in March, 2004. He has issued Ex.A.7 only basing on the records produced by P.W.1 and also by clinical examination. As per the evidence of P.W.3, it is evident that P.W.1 approached him only for the purpose of issuing disability certificate after more than 2 years of his sustaining injuries. Therefore, the Tribunal has rightly disbelieved the disability certificate Ex.A.7 issued by P.W.3. The next contention of the counsel for the claimant is that the disability certificate issued by the Medical Board was also not considered by the Tribunal. The disability certificate issued by the Medical Board was marked as Ex.A.14, which was issued on 02.11.2006. The Doctor who has issued the Ex.A.14 was not examined by the petitioner. Moreover, P.W.1 was examined before the Tribunal in the month of October, 2006 and cross-examined on 10.11.2006, but Ex.A.14 was not produced by him on that date. But the said document Ex.A14 was marked by the petitioner by recalling himself on 08.03.2007, by that date P.W.3, who has issued Ex.A.7, was already examined before the Tribunal. Therefore, it appears only to overcome the evidence of P.W.3, the claimant subsequently got marked Ex.A.14. As the Ex.A.14 was not proved by him, the same cannot be taken into consideration for assessing the disability. Thus, the Tribunal has rightly rejected the Ex.A.7 and Ex.A.14 disability certificates. The Tribunal has awarded an amount of Rs.1,25,000/- for 5 fractures at the rate of Rs.25,000/- for each fracture holding that the Doctor, who has treated the petitioner was not examined before the Tribunal. The petitioner got marked Ex.A.4 discharge summaries issued by the Apollo Hospital. As per the discharge summary dated 26.03.2004, the claimant was admitted in the hospital on 12.03.2004 and discharged on 26.03.2004 and the diagnosis was recorded as (1) Fracture shaft of right femur (Grade-I, Compound Comminuted), external fixator + interfragmentary screw application done on 12.03.2004, external fixator removal + DC plating (18 holed) done on 17.03.2004. (2) Fracture shaft of right tibia & fibula (Grade-I, Compound comminuted), DC plating (14 holed) + Allografting done on 12.03.2004. (3) Comminurted fracture right paella, circumferential wiring done on 15.03.2004. (4) ICNF right femur with pelvic diastasis, AO Cannulated Cancellous screw Fixation done on 15.03.2004, readjustment of screws done on 17.03.2004. (5) Comminuted fracture distal end of right radius with Druj diastasis & Carpal instability, Ellis plating & cast application done on 15.03.2004. (6) Full thickness heel pad avulsion right foot, debridement + reconstruction done on 12.03.2004. (7) Fracture 3 & 4 ribs right side, treated conservatively. (8) Fracture neck or right scapula, treated conservatively. (9) Fracture proximal phalanx Left little finger, treated conservatively. (10) Fracture shaft of 4th MC & Fracture shaft of proximal phalanx middle finger right hand, treated conservatively. As per the discharge summary dated 30.09.2004, he was readmitted in the hospital on 28.09.2004 and discharged on 30.09.2004 and diagnosis was recorded as Old united fracture of distal end of right radius with ellis plate in situ and ellis plate removal done on 29.09.2004. Apart from the above said discharge summaries, the petitioner also produced discharge summary issued by Udai Clinic Orthopaeic Centre, which is marked as Ex.A.5. As per Ex.A.5, he was admitted on 01.05.2005 and discharged on 08.05.2005 and again admitted on 12.05.2006 and discharged on 18.05.2006. Diagnosis was recorded as old non union fracture femur with pad right knee and the treatment was given in arthroscopic debridement right knee. Therefore, the petitioner has sustained 10 fractures as mentioned in Ex.A.4 discharge summary issued by the Apollo Hospital. The Tribunal has disbelieved the said discharge summaries only on the ground that the Doctor, who has treated the claimant was not examined. Even though the Doctor was not examined before the Tribunal, since the said documents marked through P.W.1, the same can be relied upon for the purpose of establishing the injuries sustained by him. The Tribunal has taken into consideration only 5 fractures as stated by P.W.3, but P.W.3 examined the P.W.1 after lapse of more than two years of his sustaining injuries and he found fractures only basing on the X-rays produced by him, whereas Ex.A.4 was issued immediately after the accident. From Ex.A.4 it is evident that the petitioner has sustained 10 fractures and out of 10 fractures, 6 fractures were operated and other 4 fractures were treated conservatively. The Tribunal has taken into consideration only 5 fractures and awarded Rs.25,000/- for each fracture. The said 5 fractures relied upon by the Tribunal are (1) Interlocking nail in right femur with delayed union was found, (2) Mal united fracture of both bones of right leg. (3) Mal united fracture of right patella. (4) Mal united fracture of right radius. (5) Mal united fracture of bone of 5th metatorcel. Thus, the above said fractures relied upon by the Tribunal are only Mal united fractures. The petitioner is entitled for compensation for the fractures sustained by him, but not for the mal union of fractures even after taking treatment. Therefore, the claimant is entitled for the compensation for the said 10 fractures referred to in Ex.A.4. Since the claimant was treated by external fixator, interfragmentary screw application and DC plating for the 6 fractures, he can be awarded a sum of Rs.50,000/- each for the said 6 fractures, for which he has undergone operations on different dates as mentioned in Ex.A.4. The other 4 fractures, which were treated conservatively are lesser in severity, as such the claimant can be awarded an amount of Rs.5,000/- each for the said 4 fractures. Thus, in all the claimant is entitled for Rs.3,20,000/- towards fractures sustained by him in the said accident. The petitioner undergone operations on 12.03.2004, 15.03.2004 and 17.03.2004 for the said fractures and took treatment at Apollo hospital and at Uday clinic. In view of nature of fractures sustained by him and the nature of operations conducted for the said fractures, he might have suffered pain and suffering during the period of treatment, but the Tribunal has awarded only Rs.10,000/- towards pain and suffering, which is very meager. In view of the nature of injuries sustained and treatment taken by him, he can be awarded a sum of Rs.25,000/- towards pain and suffering. The appellant’s counsel has pleaded that the Tribunal has not awarded any amount towards medical expenses in spite of examining P.Ws.4 and 5. P.W.4 is billing manager in Apollo hospital. According to her, Ex.A.10 was issued by their hospital for an amount of Rs.2,71,862-26 ps. P.W.5 is billing incharge of Udai clinic. According to her, they have issued discharge bill for Rs.1,09,350/-. The Tribunal has awarded both the amounts towards medical expenditure incurred by the claimant. The Tribunal has awarded Rs.10,000/- towards loss of amenities in life. In view of nature of fractures sustained by the petitioner and the prolonged treatment taken by him for the said injuries, he can be awarded a sum of Rs.50,000/- towards loss of amenities in life. The Tribunal has awarded Rs.10,000/- towards nutritious food, transportation and assistance. According to the appellant’s counsel, even though P.W.2 was examined to establish the expenditure incurred by the petitioner towards employing the attendant, the Tribunal has not considered the said expenditure incurred by him. P.W.2-K.Dass has stated in his affidavit that he is working as servant/attendant in the house of P.W.1, who sustained multiple fracture injuries in a road accident and due to the said accident he was bedridden. He was working as servant/attendant from May, 2004 onwards on monthly salary of Rs.2,500/- with food and still he is with P.W.1. But he did not speak anything about the nature of work performed by him as attendant. When the petitioner could not establish the nature of duties performed by P.W.2, who attending on him and from the evidence of P.W.2, it can only be presumed that he is working in the house of P.W.1 as a servant but not attendant to P.W.1, as such the claim of Rs.2,500/- P.M. towards salary of attendant was rightly rejected by the Tribunal and the claimant is not entitled for the same. However, in view of nature of injuries and the treatment taken by him, the claimant can be awarded Rs.25,000/- towards nutritious food and transportation. The appellant’s counsel has further pleaded that the Tribunal has not considered the expenditure incurred by the claimant towards physiotherapy even though the Doctor, who has given physiotherapy is examined as P.W.6. P.W.6-Dr. B.Srinivasa Reddy has stated in his chief-examination that he attended one patient by name Surendra Kumar (claimant herein) at his residence, who sustained injuries in a road accident and the receipt Sl.Nos.193 to 218 in Ex.A.11 were issued by him. But he did not speak anything about the physiotherapy given by him to P.W.1 and he has also does not disclose to which part of the body, he has given physiotherapy. Simply, producing bills issued by P.W.6, the petitioner is not entitled for reimbursement of said amount when he has failed to establish the physiotherapy given by P.W.6 for the injuries sustained by him. Therefore, the petitioner is not entitled for any amount towards physiotherapy. Thus, the claimant is entitled for Rs.3,20,000/- towards compensation for the injuries sustained by him, Rs.25,000/- towards pain and suffering, Rs.25,000/- towards nutritious food and transportation, Rs.50,000/- towards loss of amenities in life, Rs.3,81,212/- towards medical expenditure. In all, the claimant is entitled for Rs.8,01,212/-. In the result, the appeal is partly allowed and the compensation of Rs.5,36,200/- awarded by the Tribunal is enhanced to Rs.8,01,212/- with interest at 6% P.A. on the enhanced compensation from the date of filing of the petition till the date of realization. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:13-10-2011 Ksp