C.H.PRABHAKAR Vs. APSRTC

JUDGEMENT

(1.) CHALLENGING the award dated 09.04.2009 passed in O.P.No.1675 of 2007 by the Chairman, MACT -cum -V Additional Metropolitan Sessions Judge, City Criminal Courts, at Hyderabad (for short the Tribunal , the claimant preferred the instant appeal.

(2.) THE factual matrix of the case is thus: a The case of the claimant is that on 31.08.2007, he and his friend B. Raju were proceeding on Hero Honda Passion motorcycle bearing No. AP 23 C 1352 being driven by claimant from Pulkal village towards Joggipet and when they reached Saibaba Temple in between Nanded and Sanga Reddy, one RTC bus bearing No. AP 11 Z 584 which was coming from Joggipet side towards Sanga Reddy, being driven by its driver in a rash and negligent manner at high speed and dashed the motorcycle. Due to which the rider and pillion rider fell down. Claimant received fracture to his right femur, head injury and laceration to both hands and disfigurement of forehead and abrasion on stomach and other multiple injuries throughout the body. Immediately, the claimant was shifted to Gandhi Hospital and treated. Due to the said fractures and injuries, his movements were restricted and he suffered disability. On these pleas, the claimant filed OP No.1675 of 2007 against respondents 1 and 2/APSRTC and claimed Rs.2,00,000/ - as compensation under different heads mentioned in the OP. b Respondents filed counter and denied the material averments made in the petition and urged to put the claimant in strict proof of the same. Respondents denied the age, income, avocation and the alleged physical disability of the claimant and contended that the compensation claimed is excessive and thus prayed for dismissal of the OP. c During trial P.Ws.1 and 2 were examined and Exs.A1 to A10 were marked on behalf of the claimant. No oral or documentary evidence was adduced on behalf of respondents. d A perusal of the award shows that having regard to the oral evidence of P.W.1the complainant -cum -injured coupled with Ex.A1 -FIR and Ex.A2 - charge sheet, the Tribunal held that the accident was occurred due to the rash and negligent driving by the driver of the offending bus. e Issue No.2 which relates to compensation is concerned, the Tribunal awarded compensation of Rs.41,000/ - with interest at 7% per annum from the date of O.P till the date of realization as follows: i Pain and Suffering - Rs.25,000/ - ii Incidental Expenses - Rs.5,000/ - iii Loss of amenities due to disability - Rs.5,000/ - iv Loss of past earnings for two months - Rs.6,000/ - Hence, the appeal by claimant on the ground of inadequacy of compensation.

(3.) A Challenging the compensation granted by the Tribunal as inadequate, learned counsel for the appellant firstly argued that in spite of the fact that the claimant suffered grievous fracture injuries and underwent treatment, the Tribunal did not grant any amount towards medical expenditure. He submitted that a reasonable amount may be awarded as medical expenditure. b Secondly, learned counsel argued that the claimant needs removal of plates and screws inserted in his right leg for which he has to incur medical expenditure of Rs.18,000/ - and odd as can be seen from Ex.A8 estimate. However, the Tribunal rejected the said expenditure on an erroneous observation that no Doctor who issued Ex.A8 was examined and further the claimant can get removal of the implants in the same hospital i.e. Gandhi hospital at free of cost. Learned counsel argued that it is the prerogative of the patient to choose a suitable hospital for getting the treatment and the Tribunal cannot drive him to a Government hospital or a particular hospital on the observation that treatment will be free or in expensive in that hospital. c Thirdly, learned counsel would argue that the Tribunal has not granted any compensation for transportation charges and extra nourishment charges. d Fourthly, learned counsel would argue that as per the evidence of PW2, the claimant suffered 70% disability in his right lower limb and this disability adversely affected his laundry business and also his cable operator business and therefore he deserves suitable compensation in this regard. However, Tribunal failed to grant just compensation and awarded only Rs.5,000/ - on the observation that PW2 exaggerated the disability and the petitioner might have sustained only some disability. Learned counsel argued that though PW2 was not the doctor who treated the claimant, still on clinical and radiological examination, he found that the claimant suffered disability of 70% partial and permanent. The Tribunal, without any cogent reason, rejected his evidence on the observation that he exaggerated the percentage of disability. Learned counsel relied upon the following decisions on the point that any qualified doctor on clinical examination of the patient can assess the percentage of disability and he is not necessarily to be a treatment doctor. (i Charan Singh v. G. Vittal Reddy and another (ii Syed Saleem and others v. Abdul Shukur and another He thus prayed to enhance the compensation by allowing the appeal.