JUDGMENT
G. Chandraiah, J.
1. Heard both the counsel.
2. Not being satisfied with the compensation granted by the court of Motor Vehicles Accidents Claims Tribunal, Rangareddy in O.P. No. 1306 of 1996 dated 5-10-1999 the claimant filed the appeal.
3. The case of the claimant in brief is that on 23-12-1996 when the claimant who was working as a driver and earning an amount of Rs. 2,000/- per month, was proceeding from Uppariguda to Hyderabad on his scooter No. AHO-1221 and on reaching
Upparigudamet a bus bearing No. AP-92/1802 came from opposite direction in a rash and negligent manner and hit the scooter and as a result the claimant fell down and sustained fracture injury to right thigh and crush injuries to right leg fingers and right shoulder and injuries all over the body. A case in Crime No309/1996 was registered against the driver of the bus by the Vanasthalipuram Police Station under Sections 337 and 338 of I.P.C. Because of the accident the claimant became permanently disabled and therefore he claimed Rs. 60,000/-towards loss of earnings, Rs. 5500/- towards transport charges, Rs. 2,500/- towards extra nourishment, Rs. 1,000/-towards damages to clothing, Rs. 1,30,000/- towards medical expenses, Rs. 71,000/-towards compensation for pain and suffering, Rs. 35,000/- towards permanent disability.
4.Therespondent-Andhra Pradesh State Road Transport Corporation filed counter and denied the averments made in the claim petition and sought for dismissal of the same.
5. Based on the above pleadings the Tribunal framed the following issues for trial:
1. Whether the petitioner, injured in the accident occurred on 23-12-1996 at 7-30 am near Raghavendra rice mill, Sagar Road, was due to rash and negligent driving of the driver of APSRTC bus bearing NO.AP9Z/1802?
2. Whether the petitioner suffered any permanent disability in the accident?
3. Whether the petitioner is entitled to any compensation? If so, to what amount?
4. To what relief?
6. In support of the case of the claimant P.Ws.1 to 3 were examined and Exs.A-1 to A-17 were got marked. On behalf of the respondent R.W.1 was examined and no document was marked.
7. The Tribunal based on the evidence of the claimant as P. W. 1 and the eye witness as P.W.2 and taking into account Exs.A-1 and A-2, which are copies of F.I.R. and charge sheet and further as the driver of the bus who was examined as R.W.1 surrendered to the police and did not make any complaint and also did not report the accident to the employer, concluded that the accident occurred due to rash and negligent driving of the driver of the bus.
8. Considering the evidence of P. W.3 doctor who treated the claimant and also considering Exs.A-4, A-8 and A-9 discharge chits issued by Osmania General Hospital and as P.W.3 deposed that claimant / P.W.1 has limping of right leg due to fracture injuries and that he has difficulty in squatting and sitting cross leg and assessed the disability between 50 to 60 per cent because of the fracture injuries received by him, the Tribunal held that the claimant sustained partial permanent disability. However, as there is no evidence to show that because of the accident the occupation of the petitioner was affected or that he was disqualified from driving the vehicle, the Tribunal held that claimant sustained social disability and not functional disability. Considering the final bill dated 18-5-1997, and period of hospitalization and the nature of injuries, the Tribunal granted an amount of Rs. 75,000/- towards medical expenses; Rs. 20,000/- towards pain and suffering; Rs. 20,000/- towards permanent disability; Rs. 20,000/- towards loss of earning and; thus in all granted an amount of Rs. 1,35,000/-with interest at the rate of 12 per cent per annum from the date of the petition till realization. Not being satisfied with the compensation granted by the Tribunal, the claimant who was injured in the accident, filed the appeal for enhancement.
9. The leaned counsel for the claimant submitted that as per the evidence of the doctor P.W.3 the claimant feels difficulty in squatting because of the injuries sustained by him. He submitted that in the light of the documents produced and the period during which the claimant was hospitalized and the nature of injuries sustained by him, the amounts granted for permanent disability and pain and suffering are disproportionate and hence they are meagre. He submitted that the Tribunal erred in recording that there is only social disability and not functional disability and he submitted that though there is no evidence to show that due to the accident the claimant was disqualified from driving, as the claimant sustained 60 per cent disability which is of permanent in nature and cannot lead normal life, the Tribunal ought to have awarded amount under the head ‘loss of earnings’ and in support of this contention, he relied on the judgment of the Division Bench of this Court in APSRTC, M.D., Mushirabad, Hyderabad v. S. Dhanamjaya Reddy . Hence the counsel for the claimant sought for enhancement of the compensation granted by the Tribunal.
10. On the other hand the learned Counsel for the respondent supporting the impugned award sought for dismissal of the appeal.
11. In view of the above, the point that arises for my consideration is whether the claimant is entitled for compensation under the head ‘loss of earnings’ in the absence of any evidence with regard to functional disability and whether the amounts granted for pain and suffering are meagre?
12. In order to consider the above issue it is necessary to look into the case of the claimant in the light of the evidence available on record. The case of the claimant who is aged 32 years as per the cause title and who is claimed to be working as driver, is that he was earning an amount of Rs. 2,000/- per month and that due to the accident he sustained fracture injury to right thigh and crush injuries to right leg fingers and right shoulder and injuries all over the body. He testified to this effect by examining himself as P.W. 1. P.W.3 is the doctor who treated the petitioner. He deposed that claimant has limping of right leg due to fracture injuries and that he has difficulty in squatting and sitting cross leg. P.W.3 assessed the disability of the claimant between 50 to 60 per cent because of the fracture injuries received by him in the accident. Therefore as per the evidence of the doctor the claimant has to walk by limping due to fracture injuries and that he has difficulty in squatting and sitting cross legs and the disability is assessed between 50 to 60 per cent. This shows that the claimant cannot lead normal life. In my considered view when the claimant cannot lead normal life as there is limping in his right leg and suffered 50 to 60 percent disability, though he did not lead any evidence that he suffered any functional disability, in the light of the facts and circumstances, it can safely be inferred that he may not be able to perform his duty as he was performing earlier and certainly there will be deficiency. Therefore, I am of the view that he should be granted compensation under the head ‘loss of earnings’. A Division Bench of this Court in Dhanamjaya Roddy’s case (1 supra) considering the 80 per cent disability of the claimant therein who was working as a watchman in a nationalized bank at Madras and drawing a salary of Rs. 2,384/- per month at the time of accident, held that he is entitled to certain amount of compensation under the head ‘loss of earnings’ without regard to the fact that he has been accommodated by the employer in the same job with the same salary as was drawn by him prior to the accident. The relevant portion of the judgment is extracted as under:
16. Even though the employer has accommodated the injured in the same job with the same salary as was drawn by him prior to the accident, but he is not in a position to do the job with the same vigor and fitness as was done by him prior to the accident. In the background of the disability to the claimant, there is no guarantee that he can get any future promotions in his job. In such circumstances, though compensation has been awarded under the heads of pain and suffering and attendant charges, compensation cannot be denied to the injured under the head loss of earnings. In normal circumstances the claimant is entitled for compensation underthe head loss of earnings as determined by the Tribunal. Following the ratio laid down by this Court and the Gujarat High Court in the decisions Depot Manager, APSRTC v. Ramisetti Koteswar
Rao ; Mohanbhai Gemabhai v. Balubhai Savjibhai , we are of the view that the claimant should also be entitled to certain amount of compensation under the head loss of earnings without regard to the fact that he has been accommodated by the employer in the same job with the same salary as was drawn by him prior to the accident.
17. In this case the claimant is working as a watchman in a nationalized bank at Madras and was drawing salary of Rs. 2384/- per month at the time of the accident. The medical evidence shows that the injured sustained 80% disability. Due to the 80% disability sustained by the injured, his future promotional prospects are blocked. In a case where the disability is negligible and it does not come in the way for future promotional prospects, if the employer continues the injured in the same post and offers same salary, if compensation is awarded under the head loss of earnings while applying relevant multiplier, then there is a case for pleading that the compensation awarded under the head loss of earnings is unjust. Due to the 80% disability, the claimant cannot lead a normal life. Such a disability though cannot be compensated with any quantum of amount, yet granting compensation under the head loss of earnings is permissible.
13. Taking the analogy from the above judgment coming to the facts of the case on hand there is evidence on record to show that the claimant has limping of right leg due to fracture injuries and that he has difficulty in squatting and sitting cross leg and the disability was assessed between 50 to 60 per cent. I take the disability at 60 per cent in view of the evidence of P.W.3. The case of the claimant is that he is working as driver. Though there is no evidence with regard to functional disability, in view of the fact that the claimant sustained 60 per cent disability because of the fracture injuries and that there is also limping of right leg, it is obvious that he cannot perform his duties with same vigor as he was performing earlier. Therefore, absence of evidence with regard to functional disability will not disentitle the claimant from claiming any compensation under the head of ‘loss of earnings’. The Tribunal did not properly assess this aspect while granting the compensation.
14. As stated above the case of the claimant is that he is working as driver and earning an amount of Rs. 2,000/-per month. He deposed to this effect and there is no cross-examination on this aspect. Therefore, in these circumstances, I am of the view that the salary of the deceased (sic. claimant) per month can safely be taken as Rs. 2,000/- per month and if 1/3rd towards personal expenses is deducted, the amount the claimant would be spending for his family comes to Rs. 1,333/- per month and Rs. 15,996/- per annum. The age of the deceased sic. claimant as per the cause title and the medical evidence i.e. discharge card and other medical prescriptions, is 32 years and as per second schedule the appropriate multiplier is 17. The total amount of compensation comes to Rs. 2,71,932/-(Rs.15,996×17 : Rs. 2,71,932/-. The claimant sustained 60 percent disability and hence the claimant would be entitled to Rs. 1,63,159-20 ps. Accordingly the claimant is granted an amount of Rs. 1,63,159/- towards compensation for ‘loss of earnings’.
15. The Tribunal considering the medical evidence on record has awarded an amount of Rs. 75,000/- towards medical expenses and I do not find any reason to interfere with the same. Similarly the amounts granted for pain and suffering and permanent disability also does not warrant interference. Thus in all the claimant is entitled to Rs. 2,88,195/-(Rs.1,63,159/- + Rs. 75,000/- + Rs. 20.000/- + Rs. 20,000/-) with interest at the rate of 7.5 per cent per annum from the date of the petition till realization and the amount shall be paid to the claimant and the order with regard to deposit of the amount in nationalized bank is modified accordingly.
16. The appeal is accordingly allowed to the extent indicated above. No costs.