THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR M.A.C.M.A.No.1461 of 2009 Dated:- 30th April, 2011 Between:- Smt. V. Chandrakala …Appellant AND Mohd. Hasnuddin and another …Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A.No.1461 of 2009 JUDGMENT: Aggrieved by the award dated 20.07.2006 passed in O.P. No. 1487 of 2003 by the IV Additional Metropolitan Sessions Judge – cum – XVIII Additional Chief Judge, Hyderabad (‘the Tribunal’, for brevity), in awarding the compensation of Rs.1,06,740/- only, as against the claim of Rs.6,50,000/-, the injured -claimant filed the present appeal. 2. For the sake of convenience, the parties will be hereinafter referred to as they were arrayed before the Tribunal. 3. The facts of the case, in brief, are as follows. On 20.04.2003 at about 02:25 P.M., the claimant and her house owner – S.Balraj were proceeding on a scooter bearing No.ATS 7600 from Achampet to Dindi to attend a private function. S.Balraj was driving the scooter and the claimant was the pillion rider. When they passed Dindi project, suddenly, the offending Jeep bearing No.AP-22-U-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 driver of the scooter sustained grievous injuries. The claimant sustained fracture of her left leg and fracture of both bones of the right let and she was shifted to Image Hospitals, Ameerpet, Hyderabad. The police, Dindi, registered a case in Crime No.29 of 2003 under Section 337 IPC against the driver of the Jeep. 4. Contending that as on the date of accident, she was aged about 24 years, working as Tracer in Panchayat Raj Department, Government of A.P. earning Rs.4,618/- per month and that after the accident she was bed-ridden for a long time and became permanently disabled and not able to attend her regular work and duties and that she has been suffering from recurring pains in her both the legs, the claimant instituted MVOP before the Tribunal claiming a total compensation of Rs.6,50,000/- from the respondents. 5. The first respondent is the owner of the offending vehicle and the second respondent is the insurance company, with which the offending 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 her contentions and that the first respondent has not violated the terms and conditions of the policy. 6. Basing on the above rival contentions, the Tribunal framed the following issues. 1. Whether the petitioner (claimant) sustained injuries in the road accident due to rash and negligent driving of first respondent’s vehicle by its driver? 2. Whether the petitioner (claimant) is entitled for compensation, if so, to what amount and from whom? 3. To what relief? 7. On behalf of the claimant, the claimant herself was examined as PW.1 and Dr. S. Vasudeva Rao was examined as PW.2 and Exs.A.1 to A.9 were marked. No oral and documentary evidence was adduced on behalf of the respondents, except marking Ex.B.1 – copy of insurance policy. 8. Since there is no dispute with regard to the finding of the Tribunal that the accident occurred due to rash and negligent driving of the driver of the offending vehicle and the offending vehicle was insured with the second respondent – Insurance Company, there is no need to discuss the same. 9. Smt. A. Chayadevi, learned counsel for the claimant, contended that the Tribunal has not considered the evidence of P.W.2, who is the competent Doctor and who has issued Ex.A.4 – Disability Certificate on the ground that he has not treated the claimant. Her main submission is that it is not necessary that the Doctor who conducted the operation should necessarily 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 of the claimants, she has relied on the judgment in the case between Charan Singh Vs. G.Vittal Reddy[1]. With regard to principles to be followed for assessing the compensation in case of injuries, she has relied on the judgment in the case between M.V.Chowdappa Vs. Mohan Breweries and Distilleries Ltd.[2] 10. Per contra, Smt. V. Jyothi, learned counsel for the insurance company, contended that though the injured was initially admitted in Image Hospitals, Ameerpet, Hyderabad, no documents have been filed from the said 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 P.W.2. 11. In view of the above rival contentions, the only point that arises for consideration in this appeal is whether the evidence of P.W.2 – Dr. S. Vasudeva Rao can be relied upon and what is the just and reasonable compensation that can be awarded to the claimant, in the facts and circumstances of the case? 12. It is the case of the claimant that she sustained fracture of left leg tibia, fracture of right leg both bones and that she was shifted to Image Hospital, Hyderabad and was treated as in-patient from 20.04.2003 to 27.04.2003. Subsequently, she had taken follow up treatment from the Area Hospital, Golconda, Hyderabad. It is also her case that she became permanently disabled and she is unable to stand or walk for long distances and became unfit for her job. It is also her case that she has been experiencing flickering bones in her both legs. 13. P.W.2 – Dr. S. Vasudeva Rao is the doctor who treated P.W.1. According to him, the claimant attended his clinic on 13.03.2004 and he had examined her through clinically, radiologically. He had also gone through the discharge ticket of the Image Hospital, Hyderabad. According to P.W.2, the claimant sustained Fracture of Left Leg (Tibia) and Compound fracture of both bones of right leg and that she was operated and Closed Reduction of Left Tibia was done on 21.04.2003 under Epidural Anesthesia and Left Tibial Alliance was done on 23.04.2003. It is also his case that the claimant was advised antibiotics, painkillers, dressing, physiotherapy, manipulation, bed rest, non weight bearing walking and partial weight bearing walking. 14. After taking of X-Ray, P.W.2 noticed (1) Stiffness of both lower limbs, (2) Reduction of Movement (ROM) at Knee and ankle restricted, (3) Swelling of legs and (4) Fractures united. P.W.2 further opined that due to the above referred problems, the claimant cannot sit and squat and it will be difficult to her to stand or sit in the chair for more time and walk for long distances and that she cannot walk without any support and that she cannot work as efficiently as she used to work prior to the date of accident and accordingly estimated the partial and permanent disability at 40%. According to P.W.2, he estimated the disability on the basis of McBride’s Scale. P.W.2 denied the suggestion that to help the claimant, he has given incorrect disability certificate. Ex.A.3 is the discharge summary issued by the Image Hospitals, Hyderabad. Ex.A.4 is the disability certificate issued by P.W.2. Ex.A.5 is the salary certificate of the claimant. Ex.A.6 is the Leave certificate of the claimant showing that she was on leave from 21.04.2002 to 17.07.2002. Ex.A.8 is the X-Rays. 15. It is an admitted fact that P.W.1 (claimant) has not examined any Doctor from Image Hospitals, Ameerpet, Hyderabad, wherein she underwent operation. But, whether on that ground alone the evidence of P.W.2 has to be discarded? Certainly not. In Charan Singh’s case (1 supra), a 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 the claimant has also filed a photograph showing the injuries to her legs. What is to be seen is whether the opinion of P.W.2 – the doctor is based on record or not. According to P.W.2, he asked the claimant to take X-rays and those X-rays have been examined by him. The X-Rays reveal the fractures and position of bones after treatment. It appears from the X-Rays that there is re-union of bones at the fractured place. But however, P.W.2 opined that there was stiffness of both lower limbs and due to stiffness, there is restriction of movements at the knee and ankle. 16. The doctors who conduct operation after fixing the rods and nails, should take X-rays and ascertain whether the bones have been properly fixed or not and if the bones are not properly fixed, then it is better to correct the mistake, if necessary, by conducting another operation. In the instant case, what is to be seen is whether P.W.2 – 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 P.W.2 can be relied upon. 17. I n 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". 18. 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 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. 19. As far as disability is concerned, the physical disability may not result in loss of earnings in all cases. Physical disability, whether results in functional disability or not, has to be considered in each case. It all depends on the nature of job the person is doing. For example, in case of a carpenter, if he looses his right hand, probably, he may not be in a position to do carpentry work. Similarly, in case of a rickshaw puller, if one of his legs is amputed, he will not be in a position to pull the rickshaw. As far as this case is concerned, P.W.1 has been working as Tracer in Panchayat Raj Department, Government of Andhra Pradesh. 20. In the circumstances, I consider it just and reasonable to take the disability of the claimant at 10% for the purpose of calculating notional loss of earnings and permanent disability. As the monthly income of the claimant is shown as Rs.4,618/-, the notional loss of earnings and permanent disability comes to Rs.461/- (10%) per month and Rs. 5,532/- per annum. The appropriate multiplier applicable to the instant case is 18 and the total notional loss of earnings and permanent disability comes to Rs.99,576/- (Rs.5,532/- X 18). Admittedly, the claimant sustained fractures and she had undergone operation and was treated as in patient at the Hospital from 20.04.2003 to 27.04.2003. In the circumstances, 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 transportation charges, Rs.10,000/- towards loss of expectation of life, Rs.10,000/- towards permanent disability resulting in frustration, disappointment, inconvenience and loss of amenities of life. It is the case of the petitioner that she was admitted in the Image Hospitals, Ameerpet, Hyderabad and subsequently she had taken up treatment from the Area Hospital, Golconda, Hyderabad. The Tribunal seems to have awarded only Rs.56,741/- by considering the bills of Image Hospitals, Ameerpet, Hyderabad, but not considered the other medical bills filed by the claimant. The total of all the medical bills comes to Rs.84,668/-. In view of the above, the claimant is awarded Rs.85,000/- towards medical expenses. Thus, the claimant is entitled to a total compensation of Rs.2,44,576/- rounded off to Rs.2,45,000/- (Rupees two lakhs forty five thousand only), which is just and reasonable in the facts and circumstances of the case. The Tribunal awarded interest at the rate of 7.5% per annum, which is reasonable. Accordingly, the claimant is awarded interest at the rate of 7.5% per annum on the above awarded amount from the date of petition till the date of realization. 21. Accordingly, the award of the Tribunal is modified to the extent indicated above and the MACMA is allowed in part. However, in the circumstances, no costs. ____________________________ JUSTICE B.CHANDRA KUMAR 30th April, 2011 Bvv [1] 2003(4) ALD 183(DB) [2] 2005 ACJ 644