IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE SIXTH (6TH) DAY OF NOVEMBER, TWO THOUSAND, NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.3440 of 2004 Between: United India Insurance Co. Ltd., Rep. by its Regional Manager, Basheerbagh Hyderabad …. Appellant And: K. Narasimha Chary & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.3440 of 2004 JUDGMENT: This appeal is directed against the order dated 24.05.2004 in OP No.433 of 2000 on the file of the Motor Accidents Claims Tribunal cum I Additional District Judge, R R district at L.B. Nagar, wherein, the claim of the first respondent herein was allowed in part awarding compensation of Rs.2,98,500/- with interest at 9% per annum from the date of petition. 2. Heard the learned counsel for the appellant/insurer and the learned counsel for the first respondent-claimant. None appears for the 2nd respondent. Perused the record. 3. The first respondent herein filed claim application seeking compensation of Rs.3,00,000/- on account of the injuries sustained by him in the motor vehicle accident that occurred on 28.07.1999. According to the claimants, on that day, he along with others was proceeding in Tata sumo bearing No.AP 10 J 4578 from Tirupati to Hyderabad and when the vehicle reached the limits of Chagalamarri PS, the driver of the vehicle drove it in a rash and negligent manner and dashed against a culvert, as a result of which, the petitioner sustained injuries including traumatic C3- C4-5, disc prolapsed with ridicule myelopathy and he was treated in NIMS, Hyderabad and he was operated upon his neck and steel plates were fixed and he spent Rs.90,000/- towards medical expenses. 4. The second respondent herein owner of the vehicle remained ex-parte. The appellant/insurer filed a counter opposing the claim and denying their liability to pay the compensation. 5. During the enquiry, PWs.1 to 4 were examined and Exs.A.1 to A.9 were marked on behalf of the claimant. No oral evidence was adduced by the appellant/insurer, but Ex.B.1 copy of the policy was marked. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the Tata Sumo by its driver. The Tribunal further held that the claimant is entitled for compensation of Rs.2,98,500/- with interest at 9% per annum from the date of petition. Aggrieved by the same, the insurer filed the present appeal. 7. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the driver of the Tata sumo and that the appellant/insurer is also jointly and severally liable to pay the compensation are not seriously disputed. The main contention of the appellant is that the Tribunal erred in assessing the income of the claimant at Rs.7,000/- in the absence of any evidence and also in estimating the permanent disability at 60% in the absence of any disability certificate from the competent medical expert. 8. As seen from the docket proceedings of the Tribunal, a petition was filed by the Insurer under Section 170 of the M.V Act, seeking permission to raise grounds other than those permitted by the statute and the same was allowed on 23.04.2004. 9. According to the claimant, on account of the injury sustained by him, both the legs became paralyzed and initially he was taken to Allagadda and there from to Kadapa and he was then shifted to NIMS, Hyderabad, where he was inpatient for ten days and was operated upon the neck and steel plates were fixed. After discharge from NIMS, he continued treatment at Shanti Hospital, where he was inpatient for six months and he has also undergone physiotherapy and on the advise of the doctors, he underwent operation twice. It is his further plea that he cannot sit or squat and cannot climb steps and his neck movements are restricted. He produced Exs.A.4 and A.5 discharge summary and out patient medical record of NIMS Hospital and Ex.A.6 is the copy of the wound certificate. PW.4 Neuro Surgeon, NIMS Hospital, deposed that the claimant was treated as inpatient from 02.08.1999 to 13.08.1999 for cervical bone injury and at the time of admission, the claimant was unable to stand or hold any object in the hand and could not evacuate his bladder and MRI scan revealed contusion of cervical card with fracture of cervical bone and hence, plate fixation was done on 06.08.1999. At the time of the discharge also, the claimant continued to be bed ridden and needed support of two persons for daily survival. The contention of the appellant/ insurer that PW.4 was not the doctor, who treated the claimant, is untenable, as Ex.A.3 discharge summary shows that PW.4 was one among the panel of the doctors, who treated the claimant. 10. The Tribunal awarded a sum of Rs.60,000/- for the injuries sustained by the claimant and Rs.17,500/- towards medical expenses, Rs.5,000/- towards transport charges and Rs.2,16,000/- towards loss of future income on account of the permanent disability of 60%. Having regard to the gravity of the nature of the injury and the prolonged hospitalization during which period, the claimant had undergone surgeries more than once on a vital part of neck and also, the fact that the claimant needed physical assistance from some one to attend to his daily routine works even after discharge from the hospital, it is considered that the amount of Rs.60,000/- granted by the Tribunal towards injuries, which includes pain and suffering, extra nourishment and attendant charges, is considered to be just and reasonable. Similarly, the amount of Rs.17,500/- awarded by the Tribunal towards medical expenses in view of the bunch of medical bills Ex.A.8 and also a sum of Rs.5,000/- awarded towards transport charges in view of the transport bills Ex.A.9 is considered to be reasonable. 11. The only question which remains to be considered is whether the amount of Rs.2,16,000/- awarded by the Tribunal towards loss of future income on account of the permanent disability is sustainable? 12. The claimant has not filed disability certificate as such. He, however, examined PW.4-Neuro Surgeon, who is one of the panel doctors, who treated him at NIMS. He deposed that the physical disability of the claimant was estimated at 80% considering the fact he was blacksmith by profession and even if, the claimant had any other avocation, the disability would be 20 – 30%. Learned counsel for the appellant would contend that though the doctor PW.4 stated that the disability is only 30%, the Tribunal has unilaterally fixed the same at 60% without any basis. According to the claimant, he was a blacksmith by profession and he was earning Rs.4,000/- per month. The evidence on record shows that the claimant was aged 40 years by the date of the accident. There is, however, nothing on record to show that the claimant was blacksmith and that he was earning Rs.4,000/- per month. Nevertheless, the medical evidence on record would certainly establish that the claimant sustained serious injuries including fracture of cervical bone and he had to undergo repeated surgeries for fixation of plates and screws in vital part on the neck and his movements of the neck have become restricted and limbs are also seriously affected, as a result of which, he cannot sit and squat or climb the steps on his own and needs continuous assistance of an attendant. Under those circumstances, though the claimant has not filed the disability certificate as such, the fact remains that the claimant had became disabled person after the accident and he is not in a position to pursue whatsoever occupation he was previously doing. In the absence of any certificate of disability by competent Board of Medical experts, the percentage of disability cannot be taken as 80% as per the oral evidence of PW.4 alone. At the same time, the percentage of disability taken into consideration at 60% by the Tribunal appears to be on higher side in view of the evidence of PW.4 that percentage of the disability would be 20% if the claimant pursued any other occupation. Under those circumstances, it is considered that the disability suffered by PW.1 physically and functionally can be taken at 50% being average of 80% on one hand and 20% on the other spoken to by PW.4. Though there is no evidence on record to show that the claimant was earning Rs.4,000/- per month as a blacksmith, the amount of Rs.3,000/- per month taken into consideration by the Tribunal cannot be considered as excessive in view of the fact that even the agricultural labourer in the villages or construction labourer in the urban areas, is earning not less than Rs.100/- per day. Even if the multiplier of ‘16’ is applied as per the II Schedule, the loss of future income would works out to Rs.2,88,000/- [Rs.3000/- x 12 months x multiplier 16 x 50%] towards compensation of 50% permanent disability. The Tribunal, however, only awarded a sum of Rs.2,16,000/- . Even if the percentage of the disability is taken at 30% as per the evidence of PW.4, who stated that there will be permanent disability of 20 – 30% under any circumstances, the loss of future income would come to Rs.1,72,800/-. The difference being only Rs.43,200/- (Rs.2,16,000/- - Rs.1,72,800/-] which can be adjusted towards future medical expenses and attendant charges, as the claimant needed the physical assistance of some one to attend continuously, even for his daily routine works. Thus, viewed from any angle, the total compensation of Rs.2,98,500/- awarded by the Tribunal as against the claim of Rs.3,00,000/- cannot be considered to be excessive or unreasonable, in the facts and circumstances of the present case and in view of the serious injuries sustained by the claimant, which led to partial and permanent disability, both physical and functional. 13. In the circumstances, it is held that there are no valid or justifiable grounds to interfere with the award passed by the Tribunal. 14. In the result, the appeal is dismissed. No order as to costs. _______________________ G.V.SEETHAPATHY, J Date: 06.11.2009 bss