THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.NO. 1241 OF 2000 Date: 18.12.2009 Between: The District Medical and Health Officer, Kurnool and another …Appellants And V.Rajagopal Reddy …Respondent THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.NO. 1241 OF 2000 JUDGMENT: This appeal is directed against the order, dated 14.10.1999 passed by the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kurnool in M.O.P.No.366 of 1997. 2. The respondents before the Tribunal are the appellants herein. The injured-claimant who was an Assistant Engineer, K.C.Canal Sub-Division, Nandyal, the respondent in the present appeal, filed claim petition under Section 166 of the Motor Vehicles Act for compensation of Rs.4 lakhs in respect of the injuries sustained by him in a motor vehicle accident occurred on 03.08.1996. 3. The learned Tribunal by its order dated 04.10.1999 held that the accident was caused solely on account of the rash and negligent driving of the government jeep bearing No.AP-9Z-2481 which came in the opposite direction and dashed the motor cycle on which the respondent was proceeding and consequently granted compensation of Rs.3,15,993/- making the appellants liable to pay compensation to the respondent. 4. The appellants challenged the findings of the Tribunal viz. (i) that the accident was caused due to rash and negligent driving of the jeep bearing No.AP-09-J-2481 belonging to the department of the first appellant and (ii) the quantum of compensation contending that it is highly excessive and not in accordance with law. 5. I have heard the learned counsel appearing for the appellants as well as the respondent. 6. POINT No.(i): The fact that the accident occurred as a result of the jeep bearing No.AP-09-J-2481 belonging to the department of the first appellant dashing the motorcycle of the appellant on which he was proceeding near Thirupadu is not in dispute. As to the fact whether the accident took place due to rash and negligent driving of the driver of the jeep, the evidence available on record is that of the respondent/claimant who was examined as PW-1 and that of the jeep driver who was examined as RW-1. It is the evidence of RW-1, jeep driver that at Koratamaddi village when the jeep reached at 11 a.m. while on the way to Nandyal, he slowed down the same while negotiating a curve, but the claimant who was coming on the motor cycle in the opposite direction in a rash and negligent manner, dashed the jeep without observing it and thereby sustained injuries. However, the evidence of PW-1/respondent is that while he was proceeding cautiously and slowly on the motorcycle, RW-1 who drove the jeep bearing No.AP-09-J-2481 in a rash and negligent manner at fast speed, hit the motorcycle and the accident occurred solely due to the fault of the jeep driver. Admittedly, RW-1 did not lodge any report with the police informing about the particulars of the accident and the police after thorough investigation filed charge sheet against him alleging that the accident took place due to the rash and negligent driving of the jeep bearing No.AP-09-J-2481. The copy of the F.I.R. is marked as Ex.A-1 and the copy of the charge sheet is marked as Ex.A-2. Having regard to the aforesaid fact situation which led to filing of the accident, the learned trial Court rightly believed the evidence of PW-1 and rejected the testimony of RW-1 and the finding recorded by the learned Tribunal which is to the effect that the accident was due to the fault of RW-1, the driver of the jeep, does not call for any interference in this appeal. 7. POINT NO.(ii): There is no dispute about the fact that the respondent is an Assistant Engineer, K.C. Canal, Sub-Division, Nandyal and drawing salary of Rs.6,862/- on the date of the accident. The medical record produced by the respondent reveals that soon after the accident he was removed to Area Hospital, Nandyal and as per the certified copy of Ex.A-3-wound certificate and according to the evidence of RW-2 who subsequently treated him in G.G.H. Kurnool, the following injuries are found: i) A lacerated injury 3” x 1” on the lower part of right thigh on outer aspect. Picie of bone 2” x 3” incoming out from the injury. ii) Deformity of right thigh. iii)A lacerated injury of 1” x ½” over inner aspect of upper part of leg left skin deep. After undergoing treatment in Area Hospital, Nandyal and G.G.H., Kurnool, the respondent was admitted in Apollo Hospital, Hyderabad on 05.08.1996 and the diagnosis was that RTA with compound comminuted fractures lower end right femur and upper end right tibia. The respondent was operated on 07.08.1996 and ultimately he was discharged on 12.08.1996. These facts are borne out from Ex.A-5 discharge summary filed by the respondent. PW-2 is the Orthopaedic Surgeon in G.G.H., Kurnool, he examined the respondent on 20.09.1999 and found mal-union of right femur and also mal-union of tibia and his evidence reveals that the respondent developed limping in walking due to shortening of right leg by 1 ½”. It is also revealed from the evidence of PW-2 that the respondent also developed flexion limitation of movements in right knee and he is not able to squat on the ground. PW-2 assessed the disability at 25% to 30%, which is partial and permanent in nature. 8. The learned Tribunal considering the fact that the respondent was getting salary of Rs.6,852/- and sustained permanent disability of 25%, estimated the monthly loss of earning capacity at Rs.1,715/- and calculated the loss of income (Rs.1715/- x 38 months i.e. Rs.65,189/-) i.e. loss of income during the period in which the respondent was on leave. 9. It is the contention of the learned counsel appearing for the appellants that in view of the fact that as per Ex.A-7 Government Order, the period of leave during which the respondent was hospitalized was treated as duty period and he was paid salary for the said period, and the Tribunal erred in granting amount of Rs.65,189/- towards loss of past earnings for 38 months. 10. On the other hand, the learned counsel appearing for the respondent would contend that even though the respondent was paid salary for the period of 38 months during which he was on medical leave, treating the same as duty period, he is entitled for compensation towards loss of income and therefore, the Tribunal did not commit any mistake in awarding the said amount. In support of his contention, he relied upon the following decisions: i) BHERA RAM AND ANOTHER v. BHIYA RAM AND OTHERS[1], ii) B. ANANDHI v. R. LATHA AND ANOTHER[2] for the proposition that even though salary was paid for the period in which the injured-claimant was on medical leave, compensation can be granted for loss of leave. However, in the said decisions, the proposition laid down is that the Tribunal can fix some amount for loss of leave but the amount need not be proportionate to the actual salary of the injured-claimant. In any event, in the present case, the respondent was on leave for 38 months and the amount of Rs.68,189/- though granted under the head ‘loss of past earnings’, the same can be considered to be granted towards loss of leave, since the amount is not unreasonable. 11. The learned Tribunal also awarded compensation of Rs.1,37,514/- towards loss of future earnings which has rightly contended by the learned counsel appearing for the appellants is erroneous, the reason being the respondent continued in the job without sustaining loss of any nature by receiving the same salary in which event, paying the above said amount towards loss of future earnings is not sustainable. However, the learned Tribunal did not grant any amount towards 25% disability, which is partial and permanent in nature, according to the evidence of PW-2 and as such a sum of Rs.60,000/- can be granted towards permanent disability sustained by the respondent. The learned Tribunal granted an amount of Rs.30,000/- towards pain and suffering, loss of amenities, loss of expectation of life and extra nourishment. Granting a fixed sum of Rs.30,000/- under the above mentioned heads by the Tribunal in the opinion of this Court is not appropriate and an amount of Rs.30,000/- can be granted towards pain and suffering and a further sum of Rs.20,000/- can be granted towards loss of amenities and extra nourishment. 12. The learned Tribunal granted an amount of Rs.82,290/- towards medical expenses basing on the exact amount borne out from the medical bills filed by the respondent and the said amount being based on documentary proof placed by the respondent, needs no interference in this appeal. 13. In all the respondent is entitled for compensation of Rs.2,60,479/-. Consequently, the compensation of R.3,15,993/- granted by the Tribunal below is reduced to Rs.2,60,479/- in this appeal. The interest granted at 12% per annum from the date of petition till payment being on higher side, is also reduced to 7.5% per annum. 14. With the above modification in the award and interest, the appeal is allowed. There shall be no order as to costs. _______________ Date: 18-12-2009 R.KANTHA RAO, J CCM THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.NO. 1241 OF 2000 Date: 18.12.2009 [1] 1990 ACJ 724 [2] 2002 ACJ 233