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2021 Supreme(AP) 980

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
NINALA JAYASURYA, J.
Chalapaka Suresh - Petitioner
Versus
B. Sankara Rao - Respondent
M.A.C.M.A. No. 1577 of 2006
Decided On : 07-12-2021

Advocates Appeared:
For the Petitioner: Aravala Rama Rao.
For the Respondent: R. Venkata Rao.

Headnote:

Constitution of India, 1950 - Claimant sustained grievous and multiple injuries - Seeking Compensation - Appellant/claimant filed the above mentioned original petition stating inter alia that on 21.03.1999 he boarded a bus and on the way when the bus reached Budumuru junction, the driver of the said bus dashed against a lorry, as a result of which, the claimant sustained grievous and multiple injuries. He underwent treatment in Gayatri Nursing Home and despite the same, his right hand was amputated below the shoulder in view of the crush injuries sustained by him. He claimed an amount of Rs.3,00,000/- towards compensation against the respondents including the 3rd respondent-Insurance Company. In support of his case, the claimant examined P.Ws.1 to 3 and got marked Exs.A.1 to 9 and Ex.X.1 – Held, loss of earning capacity has to be determined considering the nature of work which he was doing prior to the date of accident. Therefore, even where physical disability is not 100%, the functional disability and loss of earning capacity may be 100%. Even in the absence of satisfactory medical evidence, in the interest of justice, the Tribunal may consider whether the claimant can do the same work which he was doing prior to the accident and if not, what is the percentage of functional disability. For example, if the movements of right hand of a Carpenter are restricted at the wrist, though the Doctor may say that it is only 30% disability, but admittedly the Carpenter will not be in a position to do the work which he was doing previously. Then, in such a case, the disability has to be assessed on the basis of the incapacity to do the work which he was doing at the time of accident - appellant/claimant is negligent and sustained injuries in the accident and therefore, he is not entitled for compensation, the said contention deserves no consideration in the absence of any appeal preferred by the Insurance Company - M.A.C.M.A. is allowed.

JUDGMENT :

The present appeal is preferred by the injured claimant, aggrieved by the order and decree dated 23.12.2005 passed by the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Srikakulam (for short “the Claims Tribunal) in O.P.No.136 of 2000 wherein an amount of Rs.1,99,000/- was awarded as against the total claim of Rs.3,00,000/-.

2. Heard Mr. Aravala Rama Rao, learned counsel for the appellant/claimant, and Smt. Medida Manimma, learned counsel for the 3rd respondent-Insurance Company.

3. The appellant/claimant filed the above mentioned original petition stating inter alia that on 21.03.1999 he boarded a bus bearing registration No.AP 35T 4077 to go to Visakhapatnam and on the way when the bus reached Budumuru junction, the driver of the said bus dashed against a lorry, as a result of which, the claimant sustained grievous and multiple injuries. He underwent treatment in Gayatri Nursing Home and despite the same, his right hand was amputated below the shoulder in view of the crush injuries sustained by him. He claimed an amount of Rs.3,00,000/- towards compensation against the respondents including the 3rd respondent-Insurance Company. In support of his case, the claimant examined P.Ws.1 to 3 and got marked Exs.A.1 to 9 and Ex.X.1.

4. The original petition against the 1st respondent was dismissed as not prosecuted. The 2nd respondent-owner of the offending vehicle remained ex parte. The 3rd respondent-Insurance Company filed its counter and resisted the claim of the claimant. In support of its case, the Insurance Company examined R.W.1 and got marked Ex.B.1-copy of Insurance Policy.

5. The Claims Tribunal, while taking the disability of the claimant at 75% as assessed by P.Ws.2 & 3, arrived at the compensation of Rs.1,99,000/- by taking the income of the claimant at Rs.1,000/- p.m. and awarding Rs.25,000/- towards medical expenses, Rs.5,000/- towards extra nourishment and travelling expenses and Rs.25,000/- towards pain, suffering and mental agony.

6. Learned counsel for the appellant/claimant inter alia contends that the amount as awarded by the Claims Tribunal is not just or tenable and the claimant is entitled for more compensation. He submits that because of the accident, the claimant, who belongs to goldsmith community, lost his hand and therefore, the loss of professional skills should be treated as 100%. While contending that the monthly income of Rs.1,000/- as taken by the Claims Tribunal is not just or tenable, he submits that Rs.2,000/- as claimed towards monthly income is very reasonable. The Claims Tribunal, according to the learned counsel for the appellant, erred in awarding meager sums towards pain and suffering and extra nourishment and travelling expenses. He submits that in view of amputation of the right hand up to right arm level, the claimant not only lost professional earnings, but also his marriage prospects are effected. He further submits that the appellant is also entitled for the amount towards future prospects, apart from enhancement of the compensation towards pain and suffering, extra nourishment, travelling expenses, etc. The learned counsel places reliance on the judgments of the Hon’ble Supreme Court in Govind Yadav Vs. New India Insurance Company Limited, reported in 2011 (10) SCC 683, and Jagadish Vs. Mohan, reported in 2018 (4) SCC 571, and also the judgment of the Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad in C.N. Somasekhar Reddy Vs. I.D.L. Chemicals Limited, Hyderabad, reported in 2010 (1) ALD 659 (DB). Contending so, the learned counsel submits that it is a fit case for enhancement of the compensation and accordingly, urges that the appeal may be allowed by awarding just and reasonable compensation.

7. Per contra, learned cunsel for the 3rd respondent-Insurance Company submits that there is a variation in the version of the cla

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