IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTY SECOND DAY OF JUNE TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.801 & 1380 OF 2008 M.A.C.M.A.No.801 OF 2008 Between:- Thangeda Mahender Rao …Appellant A n d Dr.Vellam Ramesh Reddy …Respondent A N D M.A.C.M.A.No.1380 OF 2008 Dr.Vellam Ramesh Reddy …Appellant A n d Thangeda Mahender Rao …Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.Nos.801 & 1380 OF 2008 COMMON JUDGMENT: These two appeals arise out of the judgment dated 31-01-2008 in O.P.No.30 of 2006, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-District Judge (for short ‘the Tribunal’), Karimnagar, wherein the claim of the claimant/appellant in M.A.C.M.A.No.801 of 2008 was allowed-in-part awarding a sum of Rs.1,39,000/- with costs and interest at 7.5% per annum from the date of petition till realization. 2. Arguments of the learned counsel for the appellants and the learned counsel for the respondent in both the appeals are heard. Records are perused. 3. As the two appeals arise out of the same award passed by the tribunal, they are heard and are being disposed of together by this common judgment. 4. The appellant in MACMA.No.801 of 2008 filed claim application in O.P.No.30 of 2006 seeking compensation of Rs.5 lakhs on account of the injuries sustained by him in a motor vehicle accident that occurred on 04-02-2003. According to him, on that day, he was proceeding on a motor cycle bearing No.AP 15K 5489 from his village to Huzurabad and when he reached Kothulanaduma village at about 06-30 pm a Maruthi car bearing No.DL I CF 3306 came in opposite direction, driven by the respondent in a rash and negligent manner at high speed and dashed against the claimant’s vehicle, as a result of which the claimant fell down and suffered grievous injuries, including fracture of legs, fracture of pelvic bone and head injuries besides loss of two teeth. He took treatment initially at Jaya Hospital, Hanamkonda and later at Yashoda Hospital, Hyderabad and underwent surgery. On account of loss of teeth, fracture injuries and head injury, the claimant suffered permanent disability. The respondent in the O.P., who is the driver-cum-owner of the Maruthi car filed a counter denying his liability to pay the compensation. It is stated that the car was not injured and so the insurance company was not impleaded. 5. The tribunal framed the following issues for trial: 1. Whether the accident took place due to the rash and negligent driving of the vehicle i.e., Maruthi car bearing No.DL 1 CF 3306 by its driver? 2. Whether the petitioner is entitled to compensation and if so, to what amount and from whom? 6. During enquiry, P.Ws.1 to 5 were examined and Exs.A-1 to A-7 were marked on behalf of the claimant. R.Ws.1 to 3 were examined and Exs.B-1 and B- 2 were marked on behalf of the respondent. 7. On a consideration of the evidence available on record, the tribunal held that the respondent, who is the driver of the Maruthi car was responsible for the accident. On issue No.2, the tribunal held that the claimant is entitled for a total compensation of Rs.1,39,000/-. Accordingly, an award was passed for the said amount with interest at 7.5% per annum from the date of petition till realization. Not satisfied with the award, the claimant preferred MACMA.No.801 of 2008. Assailing the award, the owner-cum-driver of the Maruthi car filed MACMA.No.1380 of 2008. 8. The learned counsel for the owner of the vehicle would contend that the tribunal erred in not taking into consideration the fact that the claimant was found to be under the influence of alcohol at the time of the accident and so he was also partly responsible for the accident. He would further contend that even otherwise the amount awarded by the tribunal is excessive and unreasonable. 9. The learned counsel for the claimant, on the other hand, would contend that there is no evidence on record to show that the claimant was under intoxication at the time of accident and so the tribunal has rightly fastened the entire liability on the respondent. He would further contend that the tribunal failed to award the entire medical expenditure incurred by the claimant, though the same is borne out by the medical bills and erred in deducting the amount of Rs.95,000/- on the ground that the same was reimbursed to the claimant by the employer department. He would further seek enhancement of compensation on the ground that the claimant continues to suffer from permanent disability and he has to undergo future surgery for removal of the nails and screws, which are still existing in his body for uniting the fractured bones. 10. The factum of the accident and the identity of the vehicles involved are not in dispute. The tribunal recorded the finding to the effect that the driver-cum- owner of the Maruthi car alone was responsible for the expenditure, based on the criminal record besides other evidence adduced in this O.P. Admittedly, the police registered F.I.R-Ex.A-1 in Cr.No.19 of 2003 of Elakathurthy P.S against the driver-cum-owner of the Maruthi car and after due investigation, filed charge sheet- Ex.A-2 against him. In the course of evidence, R.W.3 Duty Medical Officer of Jaya Hospital, Hanamkonda, who admitted the claimant in hospital deposed that at the time of admission, he noticed the claimant in a semi conscious state and he was under the influence of alcohol. He further deposed that when he enquired the claimant, the claimant stated to him that he fell from the motor cycle and sustained the injuries. As rightly observed by the tribunal, the said version was nowhere mentioned in the counter filed by the respondent. Even the case sheet-Ex.B-2 prepared by R.W.3 does not also disclose that the patient was under the influence of alcohol at the time of admission. Clearly the said plea introduced for the first time in the evidence of R.W.3 is only an after thought. In the absence of any plea in the counter and there being no material on record, the said plea put forward through the oral evidence of R.W.3, who was deposing years after the occurrence, cannot be countenanced. Similarly, the evidence of R.W.1 that when he reached the outskirts of Kothulanaduma village he found a person lying on the road and he took him in his car to Hanamkonda and admitted in Jaya Hospital and he has nothing to do with the accident, is also untenable, as the investigation made by the police revealed that the Maruthi car was the crime vehicle that was involved in the accident. It is obvious that in order to avoid the liability to pay the compensation, the owner-cum-driver was trying to putforward different versions at the time of enquiry without there being any basis for the same. The very fact that he was plying the vehicle without any insurance coverage itself is indicative of total lack of responsibility and road sensitivity on his part. The finding of the tribunal reached on proper appreciation of evidence available on record to the effect that the driver-cum-owner of the Maruthi car alone was responsible for the accident does not call for any interference. 11. Regarding the quantum of compensation, the tribunal awarded Rs.30,000/- towards pain and suffering, Rs.65,000/- towards medical expenditure, Rs.5,000/- towards extra nourishment, Rs.5,000/- for attendant charges, Rs. 14,000/- for loss of earnings and Rs.20,000/- towards disability, making up a total of Rs.1,39,000/-. According to the claimant, he sustained (i) fracture of bimalleolar left ankle (ii) fracture of tallus right foot and (iii) ischial spine fracture left side. The evidence on record shows that initially he was admitted in Jaya Hospital and subsequently he underwent treatment at Yashoda Hospital, Hyderabad. Ex.B-2 is the case sheet prepared by the duty doctor R.W.3 of Jaya Hospital showing the treatment rendered to the claimant initially. Ex.A-13 is bunch of discharge summaries issued by Yashoda Hospital, Hyderabad, where the claimant underwent treatment in different spells. The discharge summaries would show that he was inpatient in the hospital at the first instance from 06-02-2003 to 27-02-2003 and subsequently from 26-03- 2003 to 28-03-2003. At the first instance, external fixation of screws was done to the pubic bone and nails and screws were fixed to left fibula and medial malleolus. During the second spell of hospitalization, external fixtures were removed from the pelvis but the screws and nails fixed to left fibula and medial malleolus continued to exist and they have to be removed by another surgery in future. P.W.2 the Orthopaedic Surgeon of Yashoda Hospital testified to the treatment rendered to the claimant pertaining to the fracture injuries. P.W.3, Neuro Surgeon of Yashoda Hospital, testified that on account of the head injury, there was a decrease in sensation of smell in both nostrils besides loss of two teeth. Ex.A-8 is the bunch of medical prescriptions and Ex.A-9 is the bunch of investigation report and Exs.A-10 and A-11 are the bunch of discharge bills and medical bills and Ex.A-12 is the final bill issued by Yashoda Hospital and Ex.A-17 is the bunch of x-ray films. Having regard to the nature of the injuries and the course of treatment undergone by the claimant in different hospitals for a length of time, the amount of Rs.30,000/- awarded by the tribunal for pain and suffering, Rs.5,000/- for extra nourishment, Rs.5,000/- for attendant charges, are considered to be just and reasonable. 12. Regarding medical expenditure, the claimant has claimed a sum of Rs.1,60,000/-. The tribunal, on a scrutiny of the medical bills, which included two advance bills which are adjusted in the final bill, has estimated the medical expenditure at Rs.65,000/- as he received a sum of Rs.98,640/- from his employer i.e., General Manager, A.P. Northern Power Distribution Company Limited by way of reimbursement and awarding any amount towards medical expenses would amount to conferring a double benefit. It is not disputed that the claimant was working as lineman in the electricity department and under the proceedings Ex.B-1, a sum of Rs.98,640/- was sanctioned and as per the evidence of R.W.2, out of the sum, Rs.93,835/- was paid to Yashoda Hospital. The learned counsel for the claimant would contend that under the service rules, the claimant is entitled for medical reimbursement up to Rs.1 lakh during his entire period of service and the amount paid by the department by way of reimbursement cannot be deducted while estimating the compensation payable towards medical expenses, as injuries were sustained in an accident. The claimant has not produced any evidence to show the circumstances under which the medical reimbursement is allowed by the department. The admitted fact is that the department has, in fact, paid a sum of Rs.93,835/- to Yashoda Hospital on behalf of the claimant. When part of the medical expenses is, thus, met by the employer, it is not open for the claimant to seek payment of the same once again. Whatever be the source, the fact remains that a major portion of the medical expenses incurred in connection with the treatment is defrayed by the department and the claimant has not incurred any expenditure to that extent by himself. It is only the balance expenditure met by the claimant from his own funds that becomes eligible for payment by way of damages. After deducting the amount of Rs.93,835/- paid by the employer department to the hospital, the balance medical expenditure incurred by the claimant on his own was found to be a sum of Rs.65,000/- and the same was duly awarded by the tribunal. The claimant is, therefore, not entitled for any further amount in that regard. 13. Regarding loss of earnings, the tribunal awarded Rs.14,000/- for the period from 04-02-2003 to 01-07-2003. Ex.A-16 is the leave proceedings showing that the claimant availed 68 days of earned leave and 158 days of half pay leaves, commuted to full pay. The tribunal has rightly held that the claimant is entitled for compensation for loss of income during the period of 68 days of earned leave, as the same is otherwise encashable, if not availed. As the half pay, which was commuted to full pay, is not encashable, the tribunal has not taken the same into consideration. The claimant admittedly received full pay during the said period as 158 days of half pay leave was commuted to full pay. The contention of the learned counsel for the appellant/claimant that damages by way of loss of earnings for the said period of 158 days also ought to have been awarded by the tribunal, in untenable. As per the salary certificate-Ex.A-15, the claimant was getting a salary of Rs.7,000/- and for the 68 days period of earned leave, the tribunal has rightly awarded a sum of Rs.14,000/- towards loss of earning. 14. According to the claimant, the injuries resulted in permanent disability. P.W.2 testified that the claimant was having disability of only 10-15% resulting in some difficulty in sitting and walking. No certificate of permanent disability issued by any competent medical board is filed to establish the nature and extent of disability. In the absence of such evidence, the tribunal considering the nature and extent of disability awarded a consolidated amount of Rs.20,000/- towards disability. It is not as though the claimant is out of job on account of the injury sustained. Admittedly, after expiry of the leave, he rejoined the service. The question of estimating any compensation on account of loss of earning capacity owing to permanent disability does not arise. However, the tribunal appears to have ignored the fact that the medical evidence on record showed that the claimant lost two teeth and no compensation was awarded towards the same. The loss of two teeth would certainly result in not only physical disability but also functional deficiency in the matter of chewing and swallowing and the tribunal ought to have awarded some amount in that regard as a whole. In the circumstances, the claimant is held entitled for a sum of Rs.20,000/- toward permanent disability on account of loss of two teeth. The testimony of P.W.3 would further show that now there has been a decrease in the sensation of smell of both nostrils on account of head injury besides loss of two teeth. Except the oral statement in evidence, there is no medical record to show that there has been a decrease in the sensation of the smell in both nostrils and it is relatable to the injury sustained in the accident. In the absence of any such evidence, the claimant is not entitled for any compensation in that regard. 15. In the circumstances, the claimant is held entitled for a total compensation of Rs.1,59,000/- with interest at 9% per annum on the enhanced amount of Rs.20,000/- from the date of appeal till realization. The impugned award is modified accordingly. 16. In the result, MACMA No.801 of 2008 filed by the claimant is allowed-in-part as stated above. MACMA No.1380 of 2008 filed by the owner-cum-driver of the Maruthi car, is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 22nd June, 2010 Lrkm.