IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYNINETH DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.411 of 2004 Between: Jajula Venkateswarlu .. Appellant AND APSRTC, represented by its Managing Director and another .. Respondents JUDGMENT: This appeal is directed against the award dated 25-09-2002 in O.P.No.418 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad. The appellant was claimed to be proceeding on scooter No.AP-9-AB-291 on 7-1-2000 and to have been hit from behind by the APSRTC Bus AP-9Z-7950 near Mahaboob Mansion. The bus was claimed to be driven rashly and negligently in high speed and the appellant was stated to have been shifted to CDR hospital, Malakpet, for treatment of his grievous injuries. Chaderghat police was stated to have registered Crime No.14 of 2000 and the appellant, who claimed to have spent more than Rs.2,00,000/- towards medical expenses, claimed a compensation of Rs.5,00,000/- as even his job prospects became bleak. The APSRTC represented by its two officials contested the claim denying the allegations and claiming the compensation claimed to be excessive. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation. The Tribunal examined PWs.1 and 2 and RW.1 and marked Exs.A.1 to A.14 during the course of enquiry. The Tribunal rendered the impugned award accepting the evidence of the injured-PW.1 corroborated by Ex.A.1-First Information Report and rejecting the claims of the bus driver as RW.1. The Tribunal opined that the very departmental enquiry against RW.1 improbablises his claims and RW.1 was sent for training after the enquiry obviously indicating that he must have been at fault. On the conclusion that the accident occurred due to the rash and negligent driving of the bus by RW.1, the Tribunal proceeded to assess the quantum of just and adequate compensation, which the Corporation is liable to pay. The Tribunal noted that PW.1 claimed to have sustained fracture to both bones of his right leg and claimed to have been treated at CDR Hospital, Devarakonda Hospital and Uday Hospital, the discharge summaries and bills issued by whom were filed. The Tribunal also noted about Ex.A.10-bunch of medical bills filed apart from Exs.A.8, A.9 and A.12 to A.14 concerning the treatment and the disability. The Tribunal also referred to the evidence of PW.2, the doctor about 40% permanent partial disability suffered by PW.1 as certified in Ex.A.14 due to shortening of one inch of right leg and restriction of right ankle movement. The Tribunal did not grant the medical expenses covered by Ex.A.5-Bill of CDR hospital, which did not certify about the payment and also did not act on any permanent disability as no records of CDR hospitals were produced and as PW.2 was unable to state the basis on which he assessed the partial permanent disability. Therefore, the Tribunal considered the claimant to be entitled to Rs.68,574/- towards medical expenses and granted a total lump sum compensation of Rs.1,00,000/- towards injuries, the pain and suffering, the inconvenience and the medical expenditure. The Tribunal awarded interest at 9% p.a. and costs on such amount. The appellant-claimant was aggrieved by the meagre compensation awarded and contended that the disability of 40% restricting movement of right ankle and shortening of leg by one inch should not have been ignored and when he spent more than Rs.1,25,000/- proved through Exs.A.5 to A.10, the same should have been reimbursed. Nothing was awarded towards fractures, loss of income though he was bed ridden for two months and other admissible heads of damages. The appellant, therefore, desired the balance compensation claimed by him to be awarded. Heard Sri Molugu Krishna Reddy, learned counsel for the appellant and Sri K. Madhava Reddy, learned standing counsel for APSRTC. The finding of the Tribunal that the accident took place on account of negligence on the part of RW.1 remained unchallenged and consequently, the vicarious liability of the respondent Corporation to justly and adequately compensate the appellant for the injuries suffered and consequences that ensued cannot be in doubt. Coming to the quantum of compensation, Exs.A.2 to A.4 were the discharge summaries issued by CDR Hospital, B.K. Hospital and Udai Hospital respectively, while Exs.A.5 to A.7 were the consequential discharge bills issued by the respective hospitals. There appeared no inconsistency between the treatment said to have been given as per Exs.A.2 to A.4 and the billing of the appellant under Exs.A.5 to A.7. Ex.A.8 prescriptions, Ex.A.9-bunch of lab reports and Ex.A.13-X-ray films also can be read together with Exs.A.2 to A.7 and Ex.A.12-photographs with negatives is also available for perusal. When the appellant probablised about the treatment he had undergone at CDR Hospital, which Corporate Hospital would not have extended its services to the appellant free of cost for any reason, the amount covered by Ex.A.5 bill cannot be considered to have not been recovered by the said hospital. The format of billing may or may not have provided for the hospital staff certifying the receipt of payment, but in the ordinary and natural course of human events, such a bill would not have remained unpaid or been allowed to remain unpaid and there was no other ostensible reason to doubt Ex.A.5. While the Tribunal rightly directed the reimbursement of the amounts covered by Exs.A.6, A.7 and A.10 (mentioned by a typographical error as Ex.A.9 in the impugned award), it ought to have directed reimbursement of Ex.A.5-Bill also. The claimant would be entitled to enhancement to that extent of Rs.66,476-91ps. Coming to the compensation to be awarded towards pain and suffering for the fracture of both the bones of right leg, it is evident from the evidence on record that the treatment was prolonged and tortious, which still left a permanent partial disability of 40% due to shortening of right leg and restricted right ankle movement. The appellant was physically present during the hearing of the appeal by this Court and has been identified by Sri M. Krishna Reddy, learned counsel for the appellant. The appellant is still walking with a limping gait and had shown the injury, which is still said to be not totally healed and to be oozing puss periodically for which he was still taking treatment at the required intervals. In that background, the claimant should be granted at least Rs.40,000/- towards pain and suffering in respect of two fractures and the other simple injuries he suffered. Insofar as the permanent partial disability is concerned, apart from physically noticing in the open Court the physical disability still left with the appellant for the rest of his life, the medical evidence of PW.2, who certified about 40% permanent partial disability in Ex.A.14, should not have been rejected by the Tribunal solely on the basis of the absence of statement of the basis for the assessment by PW.2. That PW.2 was working in CDR Hospital and was participating in the process of treatment of the injured-PW.1 was not factually improbablised and the shortening of right leg and restricted movement of right ankle were such physical realities, which the Tribunal would have itself verified when PW.1 was presented before it in person for his evidence and the enquiry. The production of records of CDR Hospital would have been superfluous when Ex.A.2-Discharge sheet contains the history of such treatment and no respondent had sought for the production of any such records. The quality of evidence required to probablise a fact is not dependent on the quantum of such evidence, but the credibility and dependability of such evidence. There being no explicable reason for rejection of the oral evidence of PW.2, an independent expert, or the contents of the documents marked, the claimant can be safely considered to have suffered permanent partial disability due to the defective functioning of the right leg and right ankle after the accident. The claimant was stated to be a labour contractor and for his avocation and with reference to the functioning of the whole body such a disability can be approximately assessed at 20% and he was stated to be 35 years by the time of accident. The appropriate multiplier applicable to that age as per Sarla Verma and others v. Delhi Transport Corporation and another[1] is 16. The Motor Vehicles Act in its Second Schedule presumes even non-earning persons to be earning Rs.15,000/- p.a. Even if the minimum wages payable to unskilled labourers under the Minimum Wages Act at about the relevant time were to be considered as the guide and if the occupation of the claimant as labour contractor were to be believed, a reasonable assessment of his monthly income can be about Rs.2,500/- per month, while the 1st claimant earning Rs.4500/- per month is not corroborated by any independent evidence or documents. If so, the claimant can be considered to be earning Rs.30,000/- p.a. and if he had lost his entire income, it would have been assessable at Rs.4,80,000/- in total. If such assessed income were to be rounded off to Rs.5,00,000/- and 20% of the same were to be considered as loss of future earning capacity due to the accident, he would be entitled to Rs.1,00,000/- under that head as compensation. The claimant also produced Ex.A.11-Bill for Rs.5,000/- for the repairs of his scooter, which also he will be entitled to recover and a rural mechanic repairing a scooter would not have spared his time before the Tribunal on the dates of hearing to be a ground for rejection of Ex.A.11 by the Tribunal, more so, in the absence of any specific contradiction to Ex.A.11 by the respondents. Apart from the above heads of damages, the claimant would also have been entitled to the total loss of earnings for about 12 months, which appears to be approximately the period covered by the treatment as seen from Exs.A.2 to A.4. That would come to another Rs.30,000/-. The expenses of extra nourishment, attendant charges, transport and other inevitable expenses during the prolonged treatment for about one year can be assessed to be about another Rs.20,000/- and a consideration of all the material on record, thus, disclosed the quantum of just and adequate compensation to which the claimant would have been entitled under various heads of pecuniary and non-pecuniary damages could have been about Rs.2,60,000/- including CDR hospital bill and scooter repairs bill. The compensation already awarded at Rs.1,00,000/- in lump sum has to be, therefore, enhanced by Rs.1,60,000/- and in view of the length of time for which the interest has to be paid on the enhanced compensation, the same can be restricted to 6% p.a. and proportionate costs, of course, shall follow suit for the enhanced amount also. In the result, the award dated 25-09-2002 in O.P.No.418 of 2000 on the file of the Chairman, Motor Accidents Claims Tribunal- cum-II Additional Chief Judge, City Civil Court, Hyderabad, is modified by granting a further compensation of Rs.1,60,000/- with interest thereon at 6% p.a. from the date of petition till the date of realisation and proportionate costs, in addition to the compensation already awarded by the impugned award and the appeal is allowed in part accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 29-03-2011 Ksn [1] 2009 ACJ 1298