* HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B. CHANDRA KUMAR + C.M.A. No.3202 of 2002 % 22-10-2009 # C.N. Somasekhar Reddy. Appellant. Vs $ M/s. I.D.L. Chemicals Limited, rep. by its General manager, P.B. No.1, Sanathnagar, Hyderabad and another. Respondents. ! Counsel for the Appellant : Sri K. Chenchurami Reddy. ^ Counsel for Respondent No.2: Sri Kota Subba Rao <Gist : >Head Note: ?Cases Referred: 1. 1996(2) ACJ 872 2. 1996(2) ACJ 1351 3. 1991 (2) APLT 337 4. 1995(1) ALT 499 5. 2000 (2) ALT 115 6. 2001 (1) ALD 435 7. 2002 ACJ 1392 8. 2009(1) ALT 603 9. (1999(3) LLJ (supp) 273 (276) (MP) 10. 2000 (87) FLR 173 (Bom.) THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 3202 of 2002 Date: 22.10.2009 Between C.N. Somasekhar Reddy. Appellant. AND M/s. I.D.L. Chemicals Limited, rep. by its General manager, P.B. No.1, Sanathnagar, Hyderabad and another. Respondents. THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 3202 of 2002 Judgment: (per Hon’ble Sri Justice B. Chandra Kumar) Aggrieved by the award dated 24.04.2000 in O.P. No. 47 of 1997 passed by the Motor Accidents Claims Tribunal-cum-Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, in awarding only Rs.1,20,000/- compensation out of the total claim of Rs.20,00,000/- and seeking enhancement of compensation, the claimant before the Tribunal filed this appeal. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The claimant’s case is as follows. On 05.10.1995 at about 8.15 AM while he was proceeding on his Hero Honda Motor cycle bearing No.AP10D-3078 from Ameerpet to his house and when he reached near Sai Super Market, Ameerpet, the offending bus bearing No.ABB- 943, belonging to the first respondent and insured with the second respondent, being driven by its driver Mohd. Osman Khan in a rash and negligent manner at high speed, came from opposite direction and dashed against the motor cycle, as a result of which, the claimant fell down from the motor cycle and the said bus ran over his right foot causing bleeding injuries to the right foot and other parts of the body. The driver of the bus did not stop the bus at the place of accident. The claimant was shifted to NIMS hospital. The police proceeded to NIMS hospital, recorded the statement of the claimant and registered a case in Crime No.535 of 1995 of Panjagutta P.S., under Section 338 IPC R/w 132(c)/177 of the M.V. Act. After completion of investigation, the police laid charge sheet against the driver of the bus. The claimant had undergone four operations in NIMS, Hyderabad, and after discharge from NIMS he had taken treatment in various private hospitals and incurred an expenditure of Rs.3,00,000/-. The claimant sustained permanent disability and lost his earning capacity and even on the date of filing of the claim petition, he had been suffering from severe pain in his right leg. The claimant did his M.S in Engineering in USA and he joined as Manager, Technical Sales in Hyderabad Batteries Limited, Hyderabad and was drawing salary of Rs.7,000/- per month. Apart from the above, he used to get 0.05% on the net profits of his sales. During his tenure in the above said Company, he had sold 100 injunction moulding machines worth about 2.2 million U.S. Dollars (Rs.6.93 crores). The claimant worked in the above said company up to January 1995 and then started a firm called “Sunrah Export” with an initial capital of Rs.10,00,000/-. The firm became an authorized agent for Hongkong based company of injunction moulding called “Chen Song”, which is a second largest producers of injunction moulding machines. The claimant had signed contracts with the buyers for the value of 1.5 million dollars (Rs.5.25 crores) and the firm would have got a net profit of Rs.21 lakhs had it completed the contract. Because of the accident, the claimant was unable to attend his business and lost his orders and all his commercial activities came to an end. The claimant claimed Rs.8,00,000/- towards loss of earnings, Rs.3,00,000/- towards transport charges, extra nourishment and medicine, damage to clothing and damage to motor cycle, Rs.2,00,000/- towards pain and suffering and Rs.7,00,000/- towards permanent disability. The first respondent remained ex parte. The second respondent- insurance company contested the matter and denied in its counter all the material averments made by the claimant. It is denied that the accident occurred due to rash and negligent driving of the driver of the bus. The nature of injuries, period of treatment, claim of sustaining disability and loss of earning capacity as averred by the claimant have been denied. It is also denied that the claimant was working in Hyderabad Batteries Limited, Hyderabad, and earning Rs.7,000/- per month. It is also averred that the claim is highly excessive and exorbitant. The Tribunal framed the following issues. 1. Whether the petitioner is entitled to the compensation amount as prayed for? If so, to what amount and from whom? 2. To what relief? The following additional issue was also framed. “Whether the petitioner sustained injuries in the motor accident due to rash and negligent driving of the bus bearing No.ABB-943 by its driver or due to the rash and negligent driving of the Hero Honda motor cycle bearing No.AP10D-3078 by the petitioner or due to composite negligence of both the drivers?”. The claimant himself was examined as PW.1 and PWs.2 and 3 were also examined on his behalf and Exs.A1 to A15 were marked. On behalf of the second respondent, nobody was examined, except marking copy of insurance policy as Ex.B1. The Tribunal, on appreciation of the oral and documentary evidence, on additional issue, held that the accident occurred due to rash and negligent driving of the bus driver. On issue No.1, the Tribunal came to the conclusion that the claimant failed to prove that he sustained any permanent disability and also other contentions with regard to his monthly income, loss of business, traveling expenses and payments made to Anita Nursing Home and consequently denied the major portion of the claim of the claimant. The Tribunal on consideration of nature of injuries and operations undergone by the claimant, awarded Rs.25,000/- towards pain and suffering, Rs.25,000/- towards skin grafting, Rs.5,000/- towards extra nourishment, Rs.18,237/- towards inpatient charges, Rs.6,173/- towards diagnosis and other charges, Rs.31,326-40 ps., towards medical expenses, Rs.3,000/- towards traveling expenses and Rs.6,000/- towards loss of earnings. Thus, in all the Tribunal awarded only Rs.1,20,000/-. Sri K. Chenchurami Reddy, learned counsel for the appellant- claimant, submitted that the claimant examined PW.2 the Additional Professor of Plastic Surgery at NIMS, Hyderabad and PW.3 the Professor in Orthopaedic Unit of Osmania General Hospital, Hyderabad, and that the Tribunal failed to appreciate their evidence in proper perspective. It is his submission that the Tribunal failed to appreciate the evidence of PWs.2 and 3 and Ex.A15. It is also his submission that the Tribunal ought to have determined the percentage of disability at 35% basing on Ex.A15. His main contention is that the Tribunal ought to have awarded compensation towards permanent disability and consequently the loss of future earnings in proportion to the percentage of permanent disability. It is also his submission that the Tribunal also failed to consider that the claimant was qualified mechanical engineering, who obtained Masters Degree in Mechanical Engineering from Chicago University. It is also his submission that the Tribunal failed to consider the income of the deceased while he was working in Hyderabad Batteries Limited (HBL), Hyderabad, his subsequent business and the loss of business consequent to the injuries sustained by him in the accident. It is also submitted that the Tribunal failed to consider the medical bills submitted by the claimant and failed to award reasonable compensation. Sri Kota Subba Rao, learned counsel for the second respondent-Insurance Company, submitted that there is no satisfactory evidence to show that the claimant sustained permanent disability, since the claimant did not sustained any fracture. It is further argued that PW.3 never treated the claimant and therefore the disability certificate issued by PW.3 was rightly rejected by the Tribunal. It is also his submission that the Tribunal has assigned valid reasons in support of its findings and rightly denied the claim of traveling expenses and part of claim for medical expenses. It is also his submission that the Tribunal, after giving valid reasons, awarded Rs.1,20,000/- and no interference is required therewith. As far as the additional issue as to whether the accident occurred due to rash and negligent driving of the bus driver or whether there was any contributory negligence on the part of the claimant is concerned, no arguments have been advanced. However, the evidence on record, particularly the evidence of PW.1, which is corroborated by the contents of Ex.A1 the certified copy of FIR and Ex.A2 the certified copy of charge sheet, in the absence of any rebuttal evidence, proves that the accident occurred due to rash and negligent driving of the bus driver. Therefore, the finding of the Tribunal on this issue stands confirmed. The only point that arises for consideration is what is the just and reasonable compensation in the circumstances of the case and whether the Tribunal was justified in awarding Rs.1,20,000/- towards compensation to the claimant? The compensation should be just and reasonable. It should be neither excessive nor too low. The victims should be placed in the same position, in which they would be, had they not met with the accident. When there is a claim of sustaining permanent disability, it is the duty of the claimants to adduce satisfactory evidence to prove the disability. If the Tribunal feels that it is just and reasonable to refer the claimant to medical board, the Tribunal may refer the claimant to the medical board and obtain the disability certificate in all appropriate cases. According to the claimant, who examined as PW.1, the front wheel of the bus ran over his right foot crushing his right foot and that he was admitted in NIMS, Hyderabad, and had taken treatment as inpatient for about 35 days. Subsequently, he was again admitted in the said hospital and treated as inpatient for 11 days. His evidence shows that operations were conducted and skin grafting was done twice on his right foot. He further deposed that there is shortening of his right leg by one inch on the ankle side as a result of crush injury and that he is unable to walk freely and move from place to place and that the injury on his right side foot is not healed completely. According to him, even on the date of evidence i.e., on 16.09.1999 he was taking treatment. PW.2 is the Additional Professor of Plastic Surgery at NIMS, Hyderabad. According to him, the claimant was operated thrice for loss of tissue on the right ankle and foot and for skin grafting. His evidence further shows that the claimant was admitted in the hospital on 05.10.1995 and discharged on 09.11.1995 and again he was admitted on 20.11.1995 and discharged on 01.12.1995. According to PW.2 the claimant had considerable pain for about six weeks. PW.2 specifically deposed that the claimant cannot regain the original condition and that on account of the injury sustained by the claimant on his right foot and ankle there is restriction of movement in the right foot and ankle and the said restriction is more or less permanent one. However, PW.2 deposed that he cannot assess the disability of the claimant, as the same has to be assessed by Orthopaedic Surgeon. Then the claimant examined PW.3 the Professor in Orthopaedic Unit of Osmania General Hospital. According to PW.3, he examined PW.1 on 24.01.2000 and issued disability certificate Ex.A15 and assessed the disability at 35% to the right lower limb of the claimant. According to PW.3, the claimant has posttraumatic raw area with skin grafting and scar formation over right foot and ankle. His further evidence is that there is restriction of movements in right ankle and subtler joint are present. The evidence of PW.2 was not considered since he deposed that disability of the claimant is to be determined by an Orthopedic Surgeon. The evidence of PW.3 was rejected by the Tribunal on the ground that he did not treat the claimant and that he could not say whether he had verified the past record of the claimant on the date of issuing of Ex.A15 disability certificate. The learned counsel for the Insurance Company submitted that the claimant has not sustained any fracture, therefore he has not sustained any permanent disability. Therefore the question that arises for consideration is whether the Tribunal is justified in rejecting the evidence of PWs.2 and 3 and in coming to the conclusion that the claimant has not sustained any disability. It appears that even in case of paralysis or stiffness in joint a person may sustain partial/permanent disablement. Therefore even without sustaining fractures a person may become partial or permanently disabled. Section 142 of the M.V. Act, 1988 deals with permanent disablement, which is as follows. 142. Permanent disablement:- for the purposes of this Chapter (Chapter X), permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of Section 140 if such person has suffered by reason of the accident, any injury or injuries involving:- a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or b) destruction or permanent impairing of the powers of any member or joint; or c) permanent disfiguration of the head or face. In Mamta Bai v. Charanjit and others[1], it was held that the medical certificate established that the injured-claimant was suffering from pain over her sacrum and upper half of left thigh and stiffness in the joint resulting in permanent weakness – Such disability is covered by Section 142(b). Therefore, where in a case the injury resulted in stiffness in the joint resulting in restriction of movement, such disability should be treated as permanent disability. It has to be seen that every fracture need not amount to permanent disablement. In Raj Kishore v. Shri Ram Agrawal[2], it was held that Hair-line fracture in head will not amount to permanent disablement. Therefore, whether there is a fracture or not but what is the effect of the injury and whether the movements of any joint have been restricted or not has to be considered. Total disablement has been defined in Section 2 (l) of the Workmen’s Compensation Act, 1923, which is as follows. “total disablement” means such disablement, whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement (Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred per cent or more) There is a note beneath the Schedule-I of the Workmen’s Compensation Act, 1923 i.e., list of injuries deemed to result in permanent total disablement, which is as follows. Note: Complete and permanent loss of the use of any limb or member referred to in this Schedule shall be deemed to be the equivalent of the loss of that limb or member. Partial disablement has been defined in West Bengal State Amendment, which is as follows. (g) “partial disablement” means, where the disablement is of a temporary nature, such disablement as reduces the earning capacity of a workman in any employment in which he was engaged at the time of the accident resulting in the disablement, and, where the disablement is of a permanent nature, such disablement as reduces his earning capacity in every employment which he was capable of undertaking at that time: Provided that every injury specified in Part II of Schedule I shall be deemed to result in permanent partial disablement. The Court should consider what is the percentage of physical disability and the functional disability resulting in loss of earning capacity. Each and every physical disability may not result in loss of earning capacity. For sustaining physical disability it may result in inconvenience and pain, for example in case of a teacher sustaining of even 30% or 40% of disability of left hand may not result in loss of earning capacity. However, for sustaining physical disability he may be entitled for compensation. But, in a case of a rickshaw puller, driver of a vehicle and Carpenter some percentage of disability of left hand may result in 100% functional disability resulting in loss of earning capacity. This distinction should be kept in mind. In National insurance Co., v. Mohd. Saleem Khan and another[3], it was held that if the workman is incapacissitated to do the work which he was capable of performing at the time of the accident it is ‘total disablement’. The New India Assurance Co. Ltd., v. Kotam Appa Rao and another[4] is a case where the driver of the vehicle sustained fracture of right thigh and right hand apart from other injuries. The doctor certified that the driver is not capable of driving any longer vehicles. The learned Judge held that disability amounts to a total disablement and cannot be treated as partial disablement merely on the ground that the doctor estimated the disability as 50%. Lingampalli Rajam (died) per LRs v. Singareni Collieries Co. Ltd.[5], is a case where the leg of the workman was shortened by half inch with stiffness of ankle. So his services were terminated as he was medically unfit for the job which he was doing at the time of accident. The Court held that he is entitled to compensation on the basis that he has 100% disability. Rayapati Venkateswar Rao v. M. Sambasiva Rao[6], is a case where the cleaner of lorry sustained a compound fracture of his right leg and steel rod was inserted in the operation. This Court held that he is not in a position to discharge his duty as a cleaner any longer, hence, the loss of earning capacity is fixed at 100%. In G. Anjaneyulu v. Alla Seshi Reddy and another[7], the driver of a Car suffered fracture of his right shoulder and right ribs. Doctor certified his disability as 40% and stated that he cannot perform the job of a driver which he was performing at the time of accident. The Court held that the loss of earning capacity of the workman is 100%, though his physical disability as certified by Doctor is 40%. In Kathwal Hussain Peera v. D. Ramalingeswara Reddy and Divisional Manager, Oriental Insurance Co. Ltd.[8], this Court has consistently taken a view that in cases where the injuries sustained by a workman completely disable him from performing the work, which he was doing at the time of accident it amounts to 100% disability. The evidence of the doctor who treated the appellant clearly shows that though the physical disability of the appellant is only 40%, as a driver his disability is 100%. In Shankarlal v. General Manager, Central Railway[9], it was held as follows. ‘Partial’ and ‘total’ disablement – In cases of non- scheduled injuries, and where there is no amputation, incapacity to work is ` to be judged in relation to the work for which the workman was engaged at the time of accident and not that such a workman could work on another job of lighter duties assigned to him after the accident, on the same pay and emoluments which he was drawing at the time of accident. What is medical disability and what is economic disability and how they have to be distinguished has been discussed in D.L. Kulkarni v. M/s. Aurangabad Paper Mills Ltd.[10]. What is to be assessed is whether the injured is in a position to do the same work which he was doing at the time of accident and what is the percentage of disability sustained by him i.e., his physical disability and functional disability. Functional disability should be assessed considering the nature of work he was previously doing. While assessing the disability the Doctors have to consider these aspects and issue disability certificate both in respect of physical disability and functional disability. The Tribunal will have an advantage of looking at the claimant while recording his evidence. It may be useful and desirable if the Tribunal notes in the deposition with regard to the condition of the claimant, deformity, scar marks stiffness at the joints etc. If the Tribunal feels that it may be necessary in the interest of justice to refer the claimant to the medical Board the Tribunal may refer the claimant to the medical board or to any competent doctor. However, the loss of earning capacity has to be determined considering the nature of work which he was doing prior to the date of accident. Therefore, even where physical disability is not 100% the functional disability and loss of earning capacity may be 100%. Even in the absence of satisfactory medical evidence in the interest of justice, the Tribunal may consider whether the claimant can do the same work which he was doing prior to the accident and if not what is the percentage of functional disability. For example, if the movements of right hand of a Carpenter are restricted at the wrist, though the Doctor may say that it is only 30% disability, but admittedly the Carpenter will not be in a position to do the work which he was doing previously. Then, in such a case, the disability has to be assessed on the basis of the incapacity to do the work which he was doing at the time of accident. Therefore, whether the claimant has sustained fracture or not, his disability has to be ascertained considering the functional disability. Coming to the facts of this case, the Tribunal while observing that PW.2 deposed that he cannot assess the disability and that PW.3 the Orthopaedic Professor, who issued the disability certificate, did not examine the claimant at any time while undergoing treatment and did not remember whether he has verified the past record or not, disbelieved their evidence that the claimant sustained disability. PW.2 is the Additional Professor of Plastic Surgery at NIMS, Hyderabad. According to him, the claimant was admitted in the hospital on 05.10.1995 and discharged on 09.11.1995 and again admitted on 20.11.1995 and discharged on 01.12.1995. He further deposed that the claimant was operated thrice for loss of tissue on the right ankle and foot and for skin grafting. PW.2 categorically deposed that the claimant cannot regain original condition and that on account of the injuries sustained by the claimant on his right foot and ankle there is restriction of movement in the right foot and the said restriction is more or less permanent one. What PW.2 has stated that he cannot assess the disability. But PW.2 was categorical in saying that there is restriction of movement in the right foot and ankle of the claimant and the said restriction is more or less permanent one. This part of evidence of PW.2 cannot be discarded merely because he has not assessed the disability and issued disability certificate. PW.3 is the Professor in Orthopaedic unit of Osmania University. It is not the case of the claimant (PW.1) or PW.3 that PW.3 treated the claimant at any time. What he says is that the claimant came to his hospital on 24.01.2000 for assessing the disability and that he has assessed the disability since the claimant has posttraumatic raw area with skin grafting and scar formation over right foot and ankle. He further deposed that the restriction