THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A. No. 794 of 2009 Judgment: Aggrieved by the part of the award to the extent went against him, passed in O.P. No. 1488 of 2003, dated 20.07.2006, by the Motor Accidents Claims Tribunal-cum-IV Additional Metropolitan Sessions Judge-cum-XVIII Additional Chief Judge, Hyderabad (hereinafter referred to as ‘Tribunal’), in awarding the compensation of Rs.85,000/- only, as against the claim of Rs.6,00,000/-, the injured-claimant filed the present appeal for enhancement of compensation. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The facts of the case, in brief, are as follows. On 20.04.2003 at about 2.45 PM the claimant was proceeding on his scooter bearing No.ATS 7600 from Achampet to Dindi to attend a private function. One Smt. V. Chandrakala the tenant of the claimant was also proceeding on the said scooter as a pillion rider. When they passed Dindi project, suddenly the offending Jeep bearing No.AP-22U-5113 being driven by its driver in a rash and negligent manner came in opposite direction and dashed against the scooter, as a result of which, the claimant and the pillion rider sustained grievous injuries. The claimant sustained fracture of left leg (tibia and fibula), compound fracture of second and third metatarsals with tendon injury and he was shifted to Owaisi Hospital and Research Centre, Hyderabad. The police, Dindi registered a case in Crime No.29 of 2003 under Section 337 IPC against the driver of the Jeep. Contending that as on the date of accident he was aged about 42 years and that he was working as LIC agent and also doing kirana shop business and earning Rs.12,000/- per month and that after the accident he was bed-ridden for a long time and he became permanently disabled and not able to attend his regular work and duties and suffering from recurring pains in his left leg and body pains, the claimant claimed total compensation of Rs.6,00,000/- from the respondents. The first respondent is the owner of the offending vehicle and the second respondent is the insurance company, with which the vehicle was insured. Both the respondents filed separate counters and denied the material averments made by the claimant. The specific case of the respondents is that it is for the claimant to prove all his contentions and further the first respondent has not violated the terms and conditions of the policy. The Tribunal framed the following issues. 1. Whether the petitioner sustained injuries in the road accident due to rash and negligent driving of first respondent’s vehicle by its driver? 2. Whether the petitioner is entitled for compensation, if so, to what amount and from whom? 3. To what relief? On behalf of the claimant, the claimant himself was examined as PW.1 and Dr. S. Vasudeva Rao was examined as PW.2 and Exs.A1 to A9 were marked. On behalf of the respondents none were examined except marking the copy of insurance policy as Ex.B1. Since there is no dispute with regard to finding of the Tribunal whether the accident occurred due to rash and negligent driving of the driver of the Jeep, there is no need to discuss about the same. More over, it is also not in dispute that the vehicle was insured with the second respondent-insurance company. Smt. A. Chayadevi, learned counsel for the claimant, contended that the Tribunal has not considered the evidence of PW.2, who is the competent Doctor and who has issued the disability certificate. Her main submission is that it is not necessary that the Doctor who conducted the operation should be examined as a witness. In support of her contention that any qualified doctor can assess the loss of disability vis-à-vis earning capacity she relied on a decision reported in Charan Singh v. G. Vittal Reddy[1]. With regard to principles to be followed for assessing the compensation in case of injuries, she has relied on a decision reported in M.V. Chowdappa v. Mohan Breweries and Distilleries Ltd.[2] On the other hand, Smt. V. Jyothi, learned counsel for the insurance company, contended that though the injured was initially admitted in Osmania General Hospital, no documents have been filed from Osmania General Hospital. It is also her submission that the claimant ought to have examined the Doctor who conducted the operation and therefore the Tribunal has rightly declined to rely on the evidence of PW.2. The only point that arises for consideration is whether the evidence of PW.2 can be relied upon and what is the just and reasonable compensation that can be awarded in the facts and circumstances of the case? According to PW.1 he sustained fracture of left leg (tibia/fibula), compound fracture of second and third metatarsals with tendon injury. His case is that he was admitted in Osmania General Hospital, but however, he was shifted to Owaisi Hospital and Research Centre for better treatment and that he was treated as inpatient from 22.04.2003 to 06.05.2003 and subsequently he took follow up treatment from Area Hospital, Golconda, Hyderabad. PW.1 has categorically deposed that after the accident he is not able to attend his regular works and duties and that he became permanently disabled because he is not in a position to walk for long distance and still suffering from recurring pains in his left leg. He filed Exs.A1 to A9 documents in support of his contention. Ex.A1 is the copy of first information report wherein PW.1 had stated that he sustained bleeding injuries to his leg. The accident occurred on 20.04.2003. It appears that initially PW.1 was treated in Osmania General Hospital. Admittedly, no documents have been filed from Osmania General Hospital. Ex.A3 is the discharge summary issued by Owaisi Hospital and Research Centre. The recitals of the said document go to show that PW.1 had severe pain in his left leg with restriction of movements of the knee. He had multiple abrasions over the chest, head, legs and forearm. Ex.A3 recitals further show that the wound over the left foot was cleaned and dead skin was removed and skin grafting was done, taking skin from the right thigh. It also reveals that inter fragment screw was passed through the tibia, later fracture reduced with plate and screws. It also shows that PW.1 was admitted in the hospital on 22.04.2003 and discharged on 06.05.2003. Ex.A4 is the disability certificate issued by PW.2. It shows that PW.1 sustained post traumatic fracture of both bones left leg post operative, mal-union of fibula, non-union of Tibia with broken plate in situ, gross swelling of leg and foot, Malunited fractures of 2nd and 3rd metatarsals left foot, ankle stiffness present, toes movement restricted, shortening of left leg ½”. It also shows that the doctor assessed the disability at 35% permanent partial as mobility of left leg is restricted and squatting is difficult. PW.2 further opined that PW.1 requires further surgery. His evidence also shows that the claimant attended his clinic and he has examined him thoroughly and also perused the discharge summary of Owaisi hospital and that he advised him antibiotics, pain killers, physiotherapy, manipulation, bed rest, non-weight bearing walking etc. PW.2 stated that on his advise, PW.1 had taken x-ray and basing on the x-ray report, he issued Ex.A4 disability certificate. PW.2 has categorically opined that PW.1 cannot sit and squat. He would not be able to walk for long distances and he cannot walk without any support and that he cannot do work as efficiently as he used to do prior to the accident. Thus, PW.2 assessed the disability of the claimant at 35%, which is partial and permanent. In the cross-examination it is elicited that he did not maintain any record to whom he had issued orthopedically handicapped certificate. His evidence reveals that he is the consultant of Konark Diagnostic Centre, Dilsukhnagar, Hyderabad and he is not working in Owaisi Hospital. He denied the suggestion that he issued Ex.A4 showing the excess percentage of disability to help PW.1. It is an admitted fact that PW.1 has not examined any Doctor from Owaisi Hospital and Research Centre, wherein he was operated. But, whether on that ground alone the evidence of PW.2 should be discarded? In Charan Singh v. g. Vittal Reddy (1 supra), the Division Bench of this Court held that any qualified doctor can assess the loss of disability vis-à-vis earning capacity and it is not necessary that he should be the same doctor who treated the injured. In that case their Lordships were dealing with the provisions of the Workmen Compensation Act. However, the principles for appreciation of evidence in the cases arising out of Motor Vehicles Act and Workmen Compensation Act are one and the same. It has to be seen that PW.1 also filed a photograph showing the injuries to his foot and leg. What is to be seen is whether the opinion of PW.2 has some basis or not. Admittedly the doctor asked PW.1 to take x-rays. X-rays have been filed. A perusal of x-rays reveal that the opinion of PW.2 is based on the verification of x-rays. X-rays reveal fracture of both bones left leg mal-union of fibula, non-union of tibia and compound fracture of 2nd and 3rd metatarsals left foot. The doctors who conduct surgery should take proper care and verify whether there is non-union or mal-union of fractured bones and they must try to correct mistakes if any. In fact, even after fixing the rods and nails during the course of treatment, the doctors should take x-rays and ascertain whether the bones have been correctly fixed or not and if the bones are not correctly fixed, then it is better if they correct the mistake as early as possible. Thus, proper check and timely action and necessary treatment will avoid many future complications. When there is mal-union of fibula and non-union of tibia and compound fracture of 2nd and 3rd metatarsals left foot, stiffness in ankle and shortening of leg, it cannot be said that the opinion of the doctor is not based on any record. There is sufficient basis for the disability assessed by the doctor in this case. What is to be seen is whether the doctor is a competent doctor or not. It may not be practicable to examine the same doctor who had conducted the operation in all the cases for various reasons. In view of the above discussion, I hold that the evidence of PW.2 can be relied upon. In M.V. Chowdappa v. Mohan Breweries and Distilleries Ltd. (2 supra), it was observed as follows. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation or bodily injuries. Bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages varies according to gravity of injuries. Deprivation sustained as a consequence of bodily injuries may bring with it three consequences, namely, (i) loss of earning and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself, and (iii) loss or diminution in full pleasures and joys of living. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Tribunals and Courts should make an honest and serious attempt to award damages so far as money can compensate the loss. Loss of curing and earning should adequately be compensated. Therefore, while considering deprivation, the Tribunals and Courts should have due regard to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. It is trite, in awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages. In R.D. Hattangadi v. Pest Control (India) Private Limited, 1995 ACJ 366 (SC), speaking about the heads of compensation, the Apex Court held thus: "Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant towards: (i) medical attendance; (ii) loss of earning profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life". Thus, the Chairman of the Tribunal or the Judge while dealing with the cases of injured or the dependents of the deceased must place themselves in the place of those persons and consider the cases from their angle also. In case of fraud, the courts must be strict and see that nobody can misuse the process of law but when a genuine claimant whose body is wrecked or brain is destroyed and whose life has been shattered is before the Court, the Court must look at their case with a benevolent eye. Though PW.2 has given percentage of disability, but he has not given the percentage of functional disability. Functional disability depends on the nature of job the injured which he had been doing on the date of accident and the work which he may undertake in future. For example, in case of computer engineer, fracture to a leg may not result in total functional disability. But in case of a daily wage worker, amputation of a leg or a hand may result in total functional disability. Therefore, it all depends on the nature of job the injured was doing. In this case, PW.1 was aged about 40 years as on the date of accident and he was running a kirana shop besides working as LIC agent. According to him, he was earning Rs.12,000/- per month. The disability sustained by him may not totally restrict PW.1 in running kirana shop. He may have difficulty to raise from his chair or to move from one place to another while doing kirana business or he may find it difficult to do business without an assistant. As far as working as LIC agent is concerned, it may be difficult for him to ride a motor cycle or to walk long distances. Having regard to the nature of work being done by the claimant, I consider it just and reasonable to take functional disability at 20%. As far as the income of PW.1 is concerned, he has filed Ex.A5 the licence issued by the Grampanchayat to run kirana shop. However, no documents have been filed showing the income from kirana shop. The documents filed by PW.1 show that he was working as an agent in the LIC and earning regular commission. In the circumstances, I consider it just and reasonable to take the income of PW.1 at Rs.8,000/- per month. If 20% functional disability is taken, the loss of earnings per month comes to Rs.1600/- and annual loss of earnings comes to Rs.19,200/- (Rs.1600 x 12). It is settled law that the multiplier method is the best method for assessing the loss of earnings even in case of injured claimants. Considering the age of the claimant, the appropriate multiplier is ‘14’. If the same is applied the total loss of earnings comes to Rs.2,68,800/- (19,200 x 14). The claimant has filed number of bills issued by Owaisi Hospital and Research Centre. The bill dated 08.05.2003 shows that the total amount paid by PW.1 comes to Rs.18,500/-. Similarly, the invoice dated 26.04.2003 shows that the total amount paid by PW.1 is Rs.5,875-20 ps. There are other number of bills and in the circumstances I consider it just and reasonable to award Rs.30,000/- towards medical expenses. It has to be seen that PW.1 has sustained fractures and undergone operation and was treated as inpatient for about two weeks. Therefore, I consider it just and reasonable to award an amount of Rs.20,000/- towards pain and suffering, Rs.10,000/- towards extra nourishment, Rs.5,000/- towards attendant charges, Rs.5,000/- towards transport charges, Rs.10,000/- towards loss of expectation of life, Rs.10,000/- towards loss of amenities of life (frustration, disappointment and inconvenience), Rs.10,000/- towards future medical expenses and Rs.10,000/- towards loss of income during the period of treatment. Thus, in all total compensation of Rs.3,78,800/- is awarded, which appears to be just and reasonable. The Tribunal awarded 7.5% interest, which appears to be just and reasonable. Accordingly, the MACMA is allowed in part. However, in the circumstances, no costs. ___________________ B. CHANDRA KUMAR, J. Date: 30.04.2011 Nsr [1] 2003(4) ALD 183(DB) [2] 2005 ACJ 644