HONOURABLE SRI JUSTICE P. SWAROOP REDDY C.M.A. No.976 OF 2002 AND M.A.C.M.A. No.887 OF 2010 COMMON JUDGMENT: Since both these appeals arise out of the order dated 13-11- 2001 in M.V.O.P. No.262 of 1999 passed by the learned Chairman, Motor Accidents Claims Tribunal – cum – District Judge, Kadapa, and the parties are one and the same, they are being disposed of by this common judgment. 2. CMA No.976 of 2003 is filed by the Insurance Company contending that compensation awarded to the claimant is excessive and exorbitant and that the Tribunal ought to have held that there was contributory negligence on the part of the claimant as well, whereas CMA No.887 of 2010 is filed by the claimant seeking enhancement of the compensation. 3. For the sake of convenience, the parties in both the appeals are referred to as the claimant, owner of the lorry and insurance company. 4. The facts, in brief, are as under: (i) On 20-08-1998, while the claimant was going on his motorcycle bearing No.AP-04-A-5742 from Proddatur to R.T.P.P., Kalamalla, when he reached near the turning of P. Venkatapuram, at about 12-30 P.M., lorry bearing No.AP-04-T-1781, which was coming in the opposite direction driven by its driver in a rash and negligent manner without blowing horn, dashed his motorcycle and as a result, he fell down and sustained severe injuries and the motorcycle was damaged. Immediately, he was shifted to Government Hospital, Proddatur and from there he was shifted to NIMS, Hyderabad, where, on 26-08-1998, a major surgery was conducted to his spine in lumbar vertebrae 1 to 3 region and steel plates and screws were fixed. He was inpatient in that hospital for 15 days. After discharge, he was unable to walk freely and unable to drive due to fracture to his spine. He was advised to undergo further major surgery on lumbar vertebra. At the time of accident, he was on probation, as such, he was not entitled to medical leave and earned leave. He lost increment of Rs.150/- per month, which comes to Rs.52,200/- for 29 years. On account of fracture to his spine, he is suffering in his marital life also. Hence, he claimed compensation of Rs.5,00,000/-. (ii) The owner of the lorry and the insurance company filed their written statements denying the case of the claimant. 5. Based on the pleadings, the following issues were framed by the Tribunal: 1. Whether the accident occurred due to the rash and negligent driving of the AP - 04 – T – 1781 lorry, 1992 model by its driver ? 2. Whether the petitioner (claimant) is entitled to the compensation and if so, to what and from whom ? 3. To what relief ? 6. To prove his claim, claimant got examined himself as PW.1 and the medical officer as PW.2 and got marked Exs.A-1 to A-10. On behalf of the owner of the lorry and the insurance company, RWs.1 and 2 were examined and Exs.B-1 & B-2 were marked. 7. Based on the evidence on record, Tribunal awarded total compensation of Rs.3,86,000/-. Aggrieved of the same, insurance company filed CMA No.976 of 2003 contending that compensation awarded by the Tribunal is excessive and exorbitant and further contending that there was contributory negligence on the part of the claimant as well but there is no apportionment of the compensation and CMA No.887 of 2010 is filed by the claimant seeking enhanced compensation. 8. Heard the learned counsel for the claimant and the learned counsel for the insurance company and perused the material on record. 9. The main contention of the learned counsel for the insurance company is that the accident has taken place on account of negligence of the claimant also, as such, there ought to have been apportionment of the compensation between the claimant and the insurance company. Further, learned counsel vehemently contended that compensation awarded is exorbitant by any standards. 10. Now the points that arise for consideration are: (i) Whether there was negligence on the part of the claimant as well for occurrence of the accident ? (ii) Whether the compensation awarded by the Tribunal to the claimant is appropriate ? 11. As far as negligence is concerned, no one is examined on behalf of the insurance company and the evidence of the claimant as PW.1 shows that he was not responsible for the accident and it has taken place due to rash and negligent driving of the driver of the lorry. Therefore, I am not inclined to accept the contention of the insurance company that there was negligence on the part of the claimant as well for occurrence of the accident, as such, there is no necessary for apportioning the compensation. 12. Now the main question is whether the compensation awarded to the claimant is on higher side. 13. According to the evidence of the claimant, immediately after the accident, he was shifted to Government Hospital, Proddatur in the same lorry that dashed his motorcycle and there he was inpatient for one day and from there he was shifted to NIMS, Hyderabad, where he was treated as inpatient for 15 days. A surgery was performed on him on 26-08-1998. After discharge from NIMS, he took treatment at a private Hospital at Proddatur. A belt was fixed around his stomach and without the same, he cannot do any work and cannot travel. He spent Rs.50,000/- for treatment at NIMS and Rs.1,00,000/- towards other medical expenses. He spent certain amount towards transportation charges. As he could not attend the office for one month, he lost salary for those days and on account of accident, he lost promotional chance and he also lost an increment of Rs.150/-. After the accident, he is not able to lift weights and his marital life is affected. At NIMS, lumbar vertebrae L-1, L-2 and L-3 were operated and plates and screws were fixed. If he strains much, he may suffer paralysis. He may have to incur Rs.50,000/- for removal of plates inserted in his spinal-card. He spent Rs.15,000/- towards repairs of motorcycle. 14. Evidence of PW.2, the medical officer, is that he examined PW.1 on 02-08-2001, which is three years after the accident for the purpose of assessment of disability. He observed tenderness over dorsolumbar region, wasting of both thighs and legs. He advised removal of plates and screws and also to undergo physiotherapy. There is permanent disability of 35%. Ex.A-6 is said to be discharge record from NIMS. It shows that he was admitted in that hospital on 22-08-1998 and a surgery was performed on him on 26-08-1998. 15. X-ray report revealed fracture of L-2 and MRI revealed fracture of fragments with abrasion all over. For L1 to L3, transpedicular screw and plating was done. The wound healed well. 16. The case sheet from the NIMS is not called for. No one is examined in support of Ex.A-6. It is not clear as to whether this Ex.A-6 is true. It is not known as to what were the consequences of the injuries that are mentioned in Ex.A-6. Hence, much weight cannot be given to the evidence of the medical officer - PW.2, who examined the claimant three years after the accident. The fact that in spite of passing of three years after suffering injury to vertebra, the claimant’s condition was reasonably good, even according to PW.2, shows that claimant did not suffer any serious disability. Therefore, the disability certificate issued by PW.2 on the basis of wild assessment after three years of the accident cannot be accepted. 17. However, in view of the material on record and in view of the observation of the Tribunal that the claimant was wearing a belt at the time of his deposition, perhaps, it can be accepted that the claimant suffered somewhat serious injury and he underwent treatment including a surgery at NIMS, Hyderabad. But, there is no authentic evidence with regard to nature of disability suffered on account of the accident and the consequences of such injury to say that the claimant is permanently affected. It cannot be disputed that if the claimant suffered serious injury to his spine that would badly affect his entire life including marital life, but there is no authentic material to prove the same. 18. Thus, the circumstances show that the claimant has suffered an injury to his back, took treatment at NIMS, Hyderabad, suffered some disability and was unable to attend the office for certain period, spent some money for treatment and lost salary for one month. Maybe, his increment was postponed and his promotion was delayed. But, it is not, as if, he lost increment forever and that he was completely overlooked for promotion. 19. In the circumstances, in my opinion, compensation of Rs.2,68,800/- awarded by the Tribunal assessing the permanent disability at 35%, is excessive. On account of the injuries sustained by the claimant, neither he lost his employment nor his salary was reduced. Maybe, there was some temporary setback in increment and promotion. Definitely, he would have suffered pain continuously. However, if he really suffered serious injury to lumbar vertebra, he would not have recovered so early, as even according to him he lost salary for only one month. However, on account of non-examination of the medical officer concerned and in the absence of summoning of case sheet from NIMS Hospital, where he undergone treatment and surgery, etc., it cannot be accepted that the claimant suffered serious injury to his spine. Further, the material on record shows that he was given reimbursement of the medical expenses. 20. In the circumstances, an amount of Rs.2,68,800/- awarded towards loss of earnings, which includes the amount towards his future disability on account of the accident, can be reduced to Rs.1,68,800/-, Though he was given reimbursement of the medical expenses, on account of nature of injuries suffered by him, he constantly require treatment. Hence, the amount towards medial expenses need not be reduced and accordingly the amounts awarded under the other heads also need not be disturbed. Accordingly, the compensation of Rs.3,86,000/- awarded to the claimant by the Tribunal is reduced to Rs.2,86,000/-. 21. With the above modifications, CMA No.976 of 2003 filed by the insurance company is allowed in part while dismissing CMA No.877 of 2010 filed by the claimant. There shall be no order as to costs in these appeals. ______________________ P. SWAROOP REDDY, J June 22, 2010. PV