IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.M.P.No.4994 of 2005 Between: Kella Latha .. Cross Objector/Respondent AND The New India Assurance Company Limited & 2 others .. Respondents M.A.C.M.A.No.1852 of 2005 Between: The New India Assurance Company Limited .. Appellant AND Kella Latha & 2 others .. Respondents AND X.O.B.J.M.A.C.M.A.(SR).No.33005 of 2005 Between: Kella Latha .. Cross Objector/Respondent AND The New India Assurance Company Limited & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.M.P.No.4994 of 2005, M.A.C.M.A.No.1852 of 2005 and X.O.B.J.M.A.C.M.A.(SR).No.33005 of 2005 COMMON JUDGMENT: The appeal, cross objections and the petition for amending the claim petition arise out of the award passed by the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nellore, dated 05.04.2005, in O.P.No.411 of 2000. 2. The factual background for the claim is that the claimant was working in New Vidhya Bharathi School, Nellore, earning Rs.3,000/- per month and was looking after the family consisting of her husband, her son and her daughter. On 07.08.1999 at about 3.30 p.m., when she, her son and mother were returning in Andhra Pradesh State Road Transport Corporation (for short, “A.P.S.R.T.C”) bus No.AP.10.Z.6102, there was a collision between the bus and a lorry No.NL0 5A/2821 near Ulavapalla due to the rash and negligent driving of both the vehicles. The claimant’s son died due to the injuries while undergoing treatment at Government Hospital, Kavali, while the claimant was treated at the Government Hospital, Kavali, and later at Apollo Hospital, Madras, upto 24.09.1999 as an inpatient. Still she was unable to attend any work and became bed ridden due to severe pain. Consequently, she made a claim for Rs.9,87,000/- jointly and severally against the A.P.S.R.T.C and the owner and insurer of the lorry. The claim consisted of Rs.2,50,000/- towards treatment, Rs.1,25,000/- towards future treatment, Rs.50,000/- each towards attendant charges and travel and pain and suffering, Rs.12,000/- towards loss of earnings, Rs.4,00,000/- towards future loss of earning capacity due to permanent partial disability and Rs.1,00,000/- towards future attendant charges. 3. While the owner of the lorry remained ex parte before the Tribunal, the A.P.S.R.T.C and the insurer of the lorry contested the claim denying the allegations of the claimant. While the A.P.S.R.T.C. claimed the other vehicle, to have been driven rashly and negligently and to have collided with the bus while trying to avoid a cyclist, the insurer of the lorry claimed the accident to be due to the rash and negligent driving of the bus. 4. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation. This claim was tried along with O.P.No.410 of 2000 filed for recovery of compensation for the death of the son of the claimant. During the enquiry, P.Ws.1 to 9 and R.W.1 were examined and Exs.A-1 to A-88, X-1 and B-1 were marked. 5. The Tribunal rendered a common award firstly concluding that the accident took place due to the rash and negligent driving of the lorry. The Tribunal also concluded that there was valid coverage of insurance for the lorry under Ex.B- 1-Insurance Policy at the relevant time. While assessing the quantum of compensation, the Tribunal considered the evidence of the injured P.W.1 about the severe injuries received and the prolonged treatment taken and concluded with reference to the various documents filed by her that she was unable to do her regular work and could not even attend to house keeping with her right leg and right hand becoming of no use due to which she was being forced to engage an attendant to help her throughout her life. The Tribunal also referred to the evidence of P.Ws.2 to 7 who treated P.W.1 at different stages and concluded the permanent disability of P.W.1 to be 57% in the right upper limb and 19% in the right lower limb, but the functional disability to be total. In assessing the functional disability and loss of earning capacity to be total, the Tribunal relied on binding precedents from this Court. The Tribunal, therefore, was of the opinion that Rs.50,000/- should be granted towards pain and suffering, Rs.2,83,070.46 Ps. should be granted towards medical expenses disclosed by Exs.A-10 to A- 38, A-44 to A-67, A-70 to A-73 and A-75 to A-77 whose genuineness is not in doubt, Rs.23,952/- towards transport charges proved by the bills and Rs.5,000/- towards attendant charges, extra nourishment and damage to clothing. The loss of earning capacity was assessed by the Tribunal on the strength of the monthly salary of the injured as a clerk-cum-typist at Rs.3,000/- per month as disclosed by Exs.A-82 and the age of the claimant at the time of the accident at 34 years as per Ex.A-6-Wound Certificate. Applying a multiplier of 17 and treating the loss of earning capacity to be 100%, the Tribunal held the compensation payable under that head to be Rs.6,12,000/-. The Tribunal rounded off the total compensation to Rs.9,74,022/- and granted interest on the same at 9% per annum till realization. 6. It is against the said award that the insurer of the lorry is before this Court with this appeal contending that 1/3rd should have been deducted towards the personal expenditure of the claimant and the negligence on the part of the driver of the A.P.S.R.T.C also should have been considered to apportion the compensation with the corporation also. The grant of interest at 9% per annum was also another point of grievance for the insurer. 7. The claimant came up with the cross objections claiming that the total compensation that should have been awarded is Rs.19,72,000/- and the welfare legislation ought to have been liberally considered in favour of the claimant to award just and adequate compensation, Rs.50,000/- towards transport, adequate compensation towards present and future attendant charges, Rs.2,00,000/- towards fixation of artificial fingers, Rs.35,000/- towards surgery and removal of plates and screws, Rs.1,25,000/- towards future treatment, Rs.5,000/- towards post-operative expenses, Rs.8,64,000/- towards attendant charges and Rs.9,000/- towards physiotherapy should have been granted and the mistake in total of the medical bills should have been corrected by awarding another Rs.31,348.54 Ps. Interest ought to have been awarded at 18% per annum with full costs and, hence, the claimant desired that the claim petition be permitted to be amended, accordingly, as requested in M.A.C.M.A.M.P.No.4994 of 2005 and the entire compensation be awarded. 8. Sri B. Devanand, learned standing counsel for the insurer and Sri S.V. Muni Reddy, learned counsel for the claimant are heard. 9. While the A.P.S.R.T.C was absolved of the liability by the Tribunal and the bus driver was found not to have contributed in any manner to the accident, the said conclusions were not challenged by the claimant or the insurer of the lorry. Similarly, the ownership of the vehicle with the second respondent to the claim and the subsisting insurance of the lorry with the third respondent/insurer were also not in dispute and, therefore, the liability to pay just and adequate compensation for the injuries and their consequences to the claimant cannot be in dispute. What is to be adjudicated herein is only the quantum of just and adequate compensation to which the claimant is entitled. 10. Insofar as the medical bills are concerned, on physical verification of the documents, Sri S.V. Muni Reddy, learned counsel for the claimant submitted that there was a mistake in calculation of the total amount depriving the claimant of Rs.31,348.54 Ps. The assertion by the learned counsel has not been physically disputed. Therefore, as the Tribunal found the genuineness of the documents relating to medical expenses to be beyond suspicion, the said sum of Rs.31,348.54 Ps. ought to be awarded to the claimant. 11. Insofar as the amount granted towards transportation charges evidenced by Exs.A-39 to A-43, A-68 and A-74, attendant charges, extra nourishment and damage to clothing at Rs.5,000/- and pain and suffering at Rs.50,000/- are concerned, the reasonableness, vis-à-vis, the facts of the case cannot be seriously in dispute. 12. Concerning loss of earning capacity, though elaborate analysis of the evidence of the claimant and the medical personnel by the Tribunal showed technically the assessment of physical disability to be only 57% in the right upper limb and 19% in the right lower limb, the permanent incapacitation of the claimant from either being a house wife able to attend to the needs of the family members or an employee, made the Tribunal to evaluate the loss of future earning capacity to be 100% and in so assessing, the Tribunal took the aid of binding precedents from this Court and the elaborate evidence of the medical personnel justified such a conclusion as she was found to require the assistance of some attendant for life, further surgeries, treatment and correction for different deficiencies in her body for a considerable period even after the earlier treatment, the continued pain and suffering in the injured limbs and difficulty even in performing her day-to- day activities. Therefore, the assessment of the loss of earning capacity on the basis of the monthly salary disclosed by Ex.A- 82 and her age disclosed by Ex.A-6 cannot be disputed. It is true that for the age of 34 years, SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION & ANOTHER[1], might have indicated the appropriate multiplier to be 16 and the Tribunal applied a multiplier of 17, but it may have to be remembered that fixation of a suitable multiplier is only in approximation and not in mathematical precision. In any view, any difference can be adjusted in the other sums to which the claimant is found entitled. 13. The claimant, apart from the amounts granted under various heads, has her major grievance against non-grant of any sum towards future medical expenses since the date of the award and the grant of no compensation towards future attendant charges. The amount expected to be spent towards future treatment was claimed in the original petition to be Rs.1,25,000/-, whereas the assessment swelled to more than Rs.3,75,000/- in the cross objections. The amount claimed towards future assistance was only Rs.1,00,000/- in the main claim, while it is Rs.8,64,000/- in the cross objections. 14. Sofar as the probable medical expenses which the claimant might have incurred since the award till now either towards artificial fingers or for removal of plates and screws or for any further surgeries or post-operative expenses are concerned, the learned counsel for the claimant was enquired about the possibility of producing any documentary proof of such further expenses incurred since the date of the award till now and the learned counsel fairly conceded that the claimant did not preserve any record of such expenses after the impugned award. In the absence of proof of any medical expenses which would have been further incurred by now, it cannot be possible to award any definite sums under that head. The learned counsel also attributed the inability of the claimant to expend the full amount so required to the lack of means of the claimant, but still the fact remains that such expenses were not incurred. 15. Coming to the necessity to have an attendant for life, it is true that the evidence of the injured P.W.1, accepted as dependable by the Tribunal, clearly discloses the practical impossibility of the claimant being able to look after herself and attend by herself to her day-to-day activities due to the consequences of the injuries suffered. Even the medical experts clearly indicated that the total disablement would require a helping hand for the claimant for the rest of her life. Even if the statutory minimum wages payable to unskilled labourers from time to time were to be taken as the basis, leave alone the realities of salaries claimed by such domestic helps as of now, the minimum requirement per month for maintaining an attendant, most conservatively estimated, cannot be less than Rs.1,000/-. The injured is aged 34 years by the time of the accident and is aged about 46 years as of now. Given the present life expectancy, she has to lead the troubled life for not less than another 35 years. So assessed, the requirement towards attendant charges in future for the injured may come to about Rs.4,20,000/-. 16. Added to the same, as already stated, the claimant is entitled to a deficiency of Rs.31,348.54 Ps. and the additional sum granted by applying a higher multiplier by one number would have to be reduced. Considering all the circumstances, enhancing the compensation by rounding off the same to Rs.4,00,000/- will be answering the need for granting just and adequate compensation. The additional compensation being granted now has also to be permitted to carry a reasonable rate of interest and given the length of time for which the insured who is also a holder of public funds has to pay such interest, the same can be restricted to 6% per annum. The impugned award has to be modified, accordingly, while permitting amendment of the original claim to enable the grant of such enhanced compensation. 17. Therefore, M.A.C.M.A.M.P.No.4994 of 2005 is allowed permitting amendment of the original claim petition to make a claim for a compensation of Rs.19,72,000/-. The award, dated 05.04.2005, in O.P.No.411 of 2000, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nellore, is modified by awarding a further compensation of Rs.4,00,000/- with interest on such enhanced compensation at 6% per annum from the date of the claim petition till the date of realization with proportionate costs thereon in addition to the compensation already awarded by the impugned award. The appeal and the cross objections are ordered, accordingly, without costs. ______________________ G. BHAVANI PRASAD, J Date: 17th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.M.P.No.4994 of 2005, M.A.C.M.A.No.1852 of 2005 and X.O.B.J.M.A.C.M.A.(SR).No.33005 of 2005 Date: 17th August, 2011 KL [1] 2009 ACJ 1298