HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A. No.75 OF 2007 DATED:15-10-2009 BETWEEN: Kanamauru Kumar & Another. …Appellant AND Cherukuru Narasimham & Others …Respondents This Court made the following: HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON'BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A. No.75 OF 2007 JUDGMENT: (Per Hon’ble Sri Justice B.Chandra Kumar) This appeal is directed by the claimant against the judgment, dated 27.10.2006 in M.V.O.P.No.1830 of 2003 passed by the Motor Vehicle Accident Claims Tribunal-cum-XXI Additional Chief judge, Redhills, Nampally, Hyderabad whereby and whereunder as against the claim of Rs.23 lakhs, the claimant was awarded Rs.4,80,338/-. The brief facts of the case are as follows: The parties on record are hereinafter arrayed as they are arrayed before the Tribunal. On 26.04.2002 at about 10.30 a.m. while the claimant was proceeding on a scooter bearing No.AP-10-5797 and when he reached Railway Officers Club, Mettuguda, the tractor- trailer bearing No.AP-27D-7731 belonging to first respondent, insured with third respondent being driven by second respondent in rash and negligent manner came from opposite direction and dashed against the scooter, as a result of which, the claimant fell down, sustained severe injuries to both his legs resulting in degloving of right foot extending the base of foot to the toes and another degloving injury to the other foot and sustained punctured injury on the left foot, and other multiple injuries. He was shifted to NIMS Hospital, Hyderabad and was treated in the said hospital for a considerable period from 26.4.2002. Operations were conducted on 29.4.2002 and on 8.5.2002. Debridement of wounds of right leg medical posterior and lateral aspect of lower 2/3rd and debridement of dorsum of foot and avulsed heel of all the raw areas were covered with skin grafting. He was also kept in Intensive Care Unit for some time. He was again admitted in the NIMS hospital on 12.4.2004 and was discharged on 14.4.2004. Again, he was admitted on 4.6.2005 and was discharged on 5.6.2005 and underwent debulking of ALT flap and again a minor operation was also done on 24.6.2006. According to claimant, plastic surgery was done on 5 or 6 occasions. According to him, he had spent about Rs.3.50 lakhs towards his treatment and another estimated amount of Rs.1.5 lakhs is required for further surgery. The further case of the claimant is that he was a brilliant student and recently completed his engineering in Electronics and Communications and passed out in June 2001 in first class with distinction. He had also applied for M.S.Course in the United State of America Universities and was selected in different universities. On account of this unfortunate accident, he could not pursue his further education. He had also applied for TOEFL and paid Rs.6,000/- towards examination fee, but could not appear in the examination as a result of the injuries sustained by him. The further case of the claimant is that he had lost one academic year and suffered severe loss to his career. It is also his case that he is unable to walk and still experiencing pain and still undergoing treatment even on the date of filing claim petition. Thus, he claimed total compensation of Rs.23 lakhs for the injuries sustained by him. Respondents 1 and 2 remained ex parte. Third respondent- Insurance company contested the claim by filing counter. The third respondent denied the claim of the claimant that the accident occurred due to the rash and negligent driving of second respondent. The averments of the claimant with regard to his age, nature of injuries sustained by him, treatment and operations undergone by him have been denied. It is also denied that the claimant had spent more than Rs.3.5 lakhs towards medical expenses, and that he required an amount of Rs.1.5 lakhs towards further treatment. The third respondent further averred that the claim of the claimant is highly excessive and exorbitant. The tribunal below framed the following issues: 1. Whether the accident took place on 26.4.2002 at 10.30 a.m. due to rash and negligent driving of the Tractor-Trailer bearing No.AP-27D-7731? 2. Whether the petitioner is entitled to claim compensation from the respondents? If so, to what amount and from whom? 3. To what relief? In order to prove his case, the claimant himself was examined as P.W.1 and Dr.N.Ram Babu was examined as P.W.2 and Exs.A.1 to A.18 were marked and the case sheet issued by the hospital was marked as Ex.X.1. None were examined on behalf of the respondents and no documentary evidence was adduced. The Tribunal below on appreciation of oral and documentary evidence held that the accident occurred due to rash and negligent driving of second respondent. On issue No.2 the Tribunal came to the conclusion that the doctor who was examined on behalf of the claimant as P.W.2 did not speak anything about the disability sustained by the claimant, and that there is no satisfactory evidence to show the percentage of disability sustained by the claimant and the loss of his earning capacity. The Tribunal on appreciation of oral and documentary evidence came to the conclusion that the claimant is entitled to a sum of Rs.3,31,338/- towards medical expenses and Rs.1.5 lakhs towards pain and sufferings and thus, awarded total compensation of Rs.4,81,338/-. The learned counsel for the claimant submitted that the claimant was a brilliant student, and that he had completed Engineering in Electronics and Communications in first class with distinction, and that he was intending to study M.S. Course in the United States of America. Her further submission is that the bright future of the claimant became dark in view of the injuries sustained by him in the accident. It is also her case that the learned Tribunal failed to appreciate the nature of injuries, period of treatment, operations undergone by the claimant and the evidence of P.W.1 (claimant0 and P.W.2 were not taken into consideration. It is further submitted that the Tribunal ought to have fixed the percentage of disability since the claimant is unable to walk and experiencing pain. The learned counsel for the claimant by way of filing M.A.C.M.A.M.P.No.4169 of 2009 has filed nine documents as additional evidence and submitted that the additional evidence including the medical discharge record filed along with the MACMAMP proves the case of the claimant and also the disability sustained by him. The learned counsel for the claimant has also placed reliance in the case of National Insurance Co., Ltd., Hyderabad v. P.Sujatha and Others[1] and submitted that the technicalities should not come in the way of awarding just and reasonable compensation and that the very object of the Act is to remove the hardship faced by the victims of the motor accident and their dependants. The learned counsel also placed reliance in the case o f Divisional Controller, KSRTC v. Mahadeva Shetty and Another[2], wherein principles have been laid down for awarding compensation in case of victims who sustained injuries in motor accidents. The learned counsel also placed reliance on the decision rendered in Ramprasad Balmiki v. Anil Kumar Jain & Others[3], wherein 40% disability was taken considering the fact of shortening of the leg of the claimant in that case. The submission of the learned counsel for the claimant is that since the Tribunal failed to assess the disability, the percentage of the disability may be assessed and reasonable compensation may be awarded based on the evidence available on record. On the other hand, the learned standing counsel for the third respondent-Insurance Company submitted that in view of filing of additional evidence, the Insurance Company may be given an opportunity to rebut the said additional evidence and therefore, for leading the evidence the matter may be remanded to the Tribunal. It is also submitted that since there is no disability certificate determining the disability sustained by the claimant, the matter may be remanded to the Tribunal and both the parties will let in evidence to decide the percentage of disability sustained by the claimant and the loss of earnings. As seen from the record, it is clear that the claimant sustained grievous injuries in the accident that occurred on 26.4.2002. He was admitted in NIMS Hospital on the same day and had undergone treatment as inpatient. Operation was conducted on 8.5.2002, and again he was admitted on 12.4.2004 and discharged on 14.4.2004. It is also clear that skin grafting was done and debridement of dorsum of foot and avulsed heel of all the raw areas were covered with skin grafting. The evidence on record further shows that the claimant had undergone plastic surgeries on 5 or 6 occasions; however, there is no evidence on record to prove the disability sustained by the claimant. P.W.2 did not speak about the disability sustained by the claimant though he had deposed about several operations undergone by claimant and the nature of treatment given to the claimant. What is required to be established is the loss of earning capacity sustained by the claimant as a result of the injuries sustained by him. The claimant ought to have taken steps to obtain the disability certificate from the competent Medical Board or at least filed a petition to refer him to the medical Board for assessing the physical disability and functional disability sustained by him. The loss of percentage of earning capacity depends upon the nature of work and the physical disability sustained by a person. Under those circumstances, we are of the view that it is a fit case to remand the matter to the Tribunal for the purpose of assessing the disability of the claimant to determine the loss of earning capacity. In genuine cases, if there is no satisfactory evidence to determine the disability, the claimants would be put to great loss. In view of the above, the impugned order is set aside and the matter is remanded to the Tribunal for fresh disposal. Both the parties are at liberty to adduce evidence in support of their respective contentions. Since the accident occurred in 2002, we direct the Tribunal to dispose of the matter within a period of four months from the date of receipt of a copy of this order. The Appeal is disposed of accordingly. There shall be no order as to costs. _______________ A. GOPAL REDDY, J. __________________ B.CHANDRA KUMAR, J OCTOBER 15, 2009 Note: Registry shall send the record to the Lower Tribunal forthwith. (B/O.) Tsr. [1] 2005 (4) ALD 352 [2] (2003) 7 SCC 197 [3] 2008 AIR SCW 7362