APHC010114112022 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3506] FRIDAY,THE TWENTY SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 112/2022 Between: 1. CHILLA KISHORE, AGED 8 YEARS, MINOR, REPRESENTED BY HIS NATURAL GUARDIAN AND MOTHER CHILLA VIJAYA KUMARI, AGED ABOUT 35 YEARS, LABOURER IN PR MINERALS, RESIDENT OF SESHAKKAGARIPALLI, H/O B.KAMMAPALLI, OBULAVARIPALLI MANDAL, YSR KADAPA DISTRICT. ...APPELLANT AND 1. MUTHUSWAMY PERUMAL, S/O NAYAKKAR MUTHUSWAMY, AGED ABOUT 31 YEARS, DRIVER OF LORRY AP21 TB 5644, RESIDING AT D.NO.18/51, ARASAKULAM VILLAGE, VIJAYAPATHI, RADHAPURAM, TURUNELVELI, TAMILNADU STATE 627104. 2. SRUNACHALA LOGISTIS PRIVATE LIMITED, , CORPORATE OFFICE, 8-2-1/1/3, AVATAR NIVAS, SRINAGAR COLONY, MAIN ROAD, PANJAGUTTA, HYDERABAD 500 082. 3. THE NEW INDIA ASSURANCE COMPANY LIMITED, REP. BY ITS DIVISIONAL MANAGER, NEAR 7 ROADS JUNCTION, OPP. STATE BANK OF INDIA, KADAPA - 500 001. ...RESPONDENT(S): Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toto present this Memorandum of Civil Miscellaneous Appeal to this Hon'ble Court against the order and decree made in M.V.O.P.No. 255/2019 on the file of the Principal District Judge-cum-Motor Accidents Claims Tribunal, Kadapa, Dt. 30.10.2021 Counsel for the Appellant: 1. M S P KAMARAJU Counsel for the Respondent(S): 1. AMANCHARLA SATISH BABU 2. The Court made the following: THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO:112 OF 2022 JUDGMENT: Present appeal calls in question the validity of order dated 30.10.2021 passed in M.V.O.P. No.255 of 2019 on the file of Motor Accident Claims Tribunal – cum – Principal District Judge, Kadapa, awarding compensation of ₹14,81,664/- to be just and fair. 2. For the sake of convenience, parties herein are referred to as they were arrayed before the Tribunal. 3. (a) The appellant is minor, aged 5 years as on the date of accident, occurred on 07.05.2019. The appellant, along with his mother and sibling, while returning from hospital to their home by auto, Eicher Lorry bearing No.AP 21TB 5644, belonging to 2nd respondent, driven by 1st respondent in rash and negligent manner, dashed the auto, thereby appellant and other inmates have sustained injuries. Appellant was shifted to Government hospital at Railway Kodur. Considering seriousness of the injuries, he was shifted to Sankalpa Hospital, Tirupati. After undergoing preliminary treatment, as his condition became critical, on advice, he was taken to Apollo Children Hospital, Chennai, for better treatment. Thereafter, he underwent surgery 2 CGR, J MACMA. No.112 of 2022 to brain. He was in Coma after accident till he recovered after surgery at Apollo Hospital. The incident came to be reported to police, who registered Crime No.135/2019 against the driver of offending lorry, for offences under Sections 338 and 304-A of IPC. Upon investigation, police have laid charge sheet against the driver. The appellant, therefore, has filed claim under Section 166 of M.V. Act as follows: For Special Damages: S.No. Head Amount Claimed 1. Compensation for treatment, medicines, and attendant charges ₹7,00,000/- 2. Compensation for loss of amenities including marriage prospects and enjoyment of life ₹3,00,000/- 3. Compensation for future medical expenses ₹4,00,000/- 4. Compensation for transportation ₹25,000/- For General Damages: S.No. Head Amount Claimed 1. Compensation for pain and suffering ₹4,00,000/- 2. Conveyance, nourishment and attendant charges ₹50,000/- 3. Loss of amenities due to disability ₹5,00,000/- 4. For loss of income due to the injuries (100% disability) and loss of amenities of life and loss to the estate ₹5,00,000/- 3 CGR, J MACMA. No.112 of 2022 Total ₹26,75,000/- Claimant restricted his claim to ₹20,00,000/- (b) The driver of offending lorry, arrayed as 1st respondent, remained ex parte. The owner of lorry – 2nd respondent, filed written statement denying that the driver was rash and negligent in causing the accident, since the vehicle was duly insured with 3rd respondent, even if any liability arises, the same has to be borne by the insurer. Besides pleaded that the injuries were simple in nature and the compensation claimed was far excessive. 3rd respondent – Insurer of the lorry filed written statement denying the manner in which accident occurred, that the driver of the lorry was negligent and responsible for occurrence of the accident, and that he possessed valid and effective driving license. It is also stated that the driver of auto was negligent and cause for the accident and non-joining of owner and insurer as parties requires rejection of claim. Further, the injuries, compensation claimed have been denied and disputed. (c) Upon considering the pleadings on record, Tribunal framed following issues: 4 CGR, J MACMA. No.112 of 2022 (1) Whether the petitioner sustained injuries in a motor vehicle accident which occurred on 07.05.2019 due to rash and negligent driving of the driver of the lorry bearing No.AP 21TB 5644? (2) To what relief? (d) For claimants, his mother was examined as P.W.1, Pediatric Consultant, who treated at Chennai as P.W.2, Billing Manager of Apollo Children Hospital, Chennai, as P.W.3, Pediatrician at SVRRGGH, Tirupati, as P.W.4, and Neurosurgeon at SVRRGGH, Tirupati as P.W.5. Both P.Ws.4 and 5 were working in SVRRGGH, Government Hospital. Exs.A1 to A6 came to be marked. None were examined for the respondents, nor were any documents exhibited. The Tribunal, based on the evidence of P.W.1, who was also travelling in auto along with the appellant and Ex.A1 – FIR, Ex.A2 – wound certificate, Ex.A3 – Charge Sheet, has come to conclusion that the accident occurred on account of rash and negligent driving of the offending lorry by 1st respondent. Therefore, the issue was answered in favour of claimants. (e) In the process of determination of compensation, the Tribunal considering evidence of P.Ws.2, 4 and 5, doctors who have treated either at Apollo Hospital, Chennai or SVRRGGH Hospital, Tirupati and considering the disability certificate marked 5 CGR, J MACMA. No.112 of 2022 as Ex.A5, which was supported by P.W.5, though the physical disability has been assessed as 75%, it has determined functional disability as 40% and accordingly, computed loss of income of two lakhs. As the claimant was only five years old when accident occurred, considering seriousness of the injuries sustained, the Tribunal granted compensation towards pecuniary and special damages as under: S.No. Heads Calculation (Rs.) 1. Pain and suffering for two grievous injuries ₹1,00,000/- 2. Medical Bills ₹7,81,664/- 3. Transportation charges ₹75,000/- 4. Personal Attendant Charges ₹1,00,000/- 5. Future Medical expenses ₹1,50,000/- 6. Nutrition expenditure and special diet ₹75,000/- 7. Loss of income with 40% disability ₹2,00,000/- Total ₹14,81,664/- (f) Thus, Tribunal has awarded in total ₹14,81,664/- as just and fair compensation along with interest @7.5% per annum from the date of petition till realization. 6 CGR, J MACMA. No.112 of 2022 (g) Dissatisfied with the quantum of compensation so determined, present appeal is filed. 4. Heard Sri M.S.P. Kamaraju, learned counsel for appellants and Sri Amancharla Satish Babu, learned standing counsel, appearing for 3rd respondent – Insurer. 5. (a) Learned counsel for appellants firstly contended that Tribunal erred in assessing the functional disability as 40%, when disability certificate was issued under Ex.A5, supported by evidence of P.W.5, in particular, confirmed the disability as 75%, therefore, the said finding to that extent clearly suffers from perversity. It is his submission that considering severity of injuries, as clearly established based on Ex.A2 – wound certificate, supported by evidence of P.Ws.2, 4 and 5, coupled with Ex.A5 – Disability Certificate, inasmuch as the appellant suffered injury to brain, the functional disability ought to have been considered as 75%. In support of aforesaid submissions, reliance has been placed on Raj Kumar v. Ajay Kumar and another1. (b) He secondly contended that the Tribunal has committed error in computing loss of income as two lakhs considering the disability of 40%, and that there is no basis for arriving aforesaid 1 (2011) 1 SCC 343 7 CGR, J MACMA. No.112 of 2022 amount. Since claimant was minor as on date of accident, following the ratio laid down by the Hon’ble Apex Court in Baby Sakshi Greola v. Manzoor Ahmad Simon and Another2, the income ought to have been considered on notional basis, considering minimum wages payable to skilled workmen. He has placed on record letter dated 18.05.2020 issued by Special Commissioner of Labour, Andhra Pradesh which related to fixing of minimum wages for the period from 01.04.2020 to 30.09.2020, as per which, skilled worker was specified to be paid basic wage of ₹8079/- and after applying the escalation, the total wage specified was ₹13,266/-, therefore, as in the present case accident occurred on 07.05.2019, he urged to consider the aforesaid basic wage as total wage for the previous year. (c) Thirdly, he contended that the Tribunal had erred in not awarding future prospects to the claimant. In support, reference has been made to Paragraph 31 of judgment of Hon’ble Apex Court in Baby Sakshi Greola2 and Paragraph 31 of judgment of Hon’ble Apex Court in Sidram v. Divisional Manager3 and accordingly, 40% of earnings have been claimed to be added as future prospects. 2 2024 SCC OnLine SC 3692 3 (2023) 3 SCC 439 8 CGR, J MACMA. No.112 of 2022 (d) Lastly, coming to the aspect of special/general damages i.e., pain and suffering, loss of amenities such as prospects of marriage, it is contended that Tribunal has merely granted ₹1,00,000/-, rather it ought to have granted ₹5,00,000/- towards marriage prospects and ₹15,00,000/- towards pain and suffering. In support, reliance has been placed on judgment of the Hon’ble Apex Court in Baby Sakshi Greola2, in which, considering the age of claimant therein as seven years, aforesaid amount came to be awarded. 6. (a) Per contra, learned counsel for respondent Insurer tried to support the impugned order by contending that on all the aspects which have now been canvassed above, the Tribunal has extensively considered the evidence on record, both oral and documentary and has rightly assessed the functional disability, loss of income and other non-pecuniary damages, the findings rendered by Tribunal are sound with proper reasons, therefore, does not call for any interference. He further contended that the evidence on record has since suggested that the injuries suffered to body, such as fractures to leg and other bodily parts, are capable of healing and even bones would reset, the functional disability of the claimant has rightly been assessed as 40% though certificate of disability assessed physical disability as 9 CGR, J MACMA. No.112 of 2022 75%. Therefore, such findings based on cogent evidence do not call for any interference. (b) Even on the aspect of income, learned counsel tried to justify the computation of loss of income as two lakhs. Regarding non-grant of future prospects, learned counsel for insurer fairly conceded. He further tried to substantiate the amounts awarded towards non-pecuniary damages i.e., pain and suffering and also tried to justify the Tribunal in non-granting of loss of amenities i.e., marriage prospects. (c) He further contended that since the claimant is being paid social security pension in terms of G.O.Ms.No.43, dated 13.06.2024, by the State Government, he cannot claim for enhancement of compensation inasmuch as he has already been sufficiently compensated even otherwise. 7. Perused the record and considered rival submissions. 8. The following issues that fall for consideration of this Court are: 1. Whether the findings rendered by Tribunal in assessing the functional disability of the appellant/claimant as 40% on the face of certificate of disability marked under Ex.A5 as supported by the evidence of doctor (P.W.5) suffers from any perversity, and if so, what should be the percentage of 10 CGR, J MACMA. No.112 of 2022 functional disability for the purpose of assessing loss of income? 2. Whether, in the facts and circumstances of the case, the amount of compensation awarded by Tribunal towards pecuniary damages and also non-pecuniary damages is just and fair, and if the compensation is to be revised, what would be just compensation the appellant/claimant is entitled to? 3. To what relief? Point No.1: 9. At this stage of hearing present appeal, the insurer since has not filed any appeal challenging the findings and order of the Tribunal, the accident and negligence on the part of driver of offending lorry are not in dispute. Further, even the liability that is fastened on the insurer is also not in dispute. Disability: 10. The claimant was aged five years when accident occurred on 07.05.2019. The evidence on record goes to show that due to accident, the boy went into coma and was initially taken to Government Hospital at Railway Koduru, from there to Sankalpa Hospital at Tirupati and again from there to Apollo Children Hospital at Chennai. The boy underwent surgery to brain and other surgeries to fix the fractures, and he was in intensive care for about 23 days from 07.05.2019 to 27.05.2019. The nature of 11 CGR, J MACMA. No.112 of 2022 injuries sustained by him as per wound certificate issued by Government Hospital at Railway Koduru, immediately upon the boy being taken there, suggests that he was found to be having ear and nose bleeding and x-ray and CT scan indicated that there was fracture to leg and also intracerebral and intraventricular hemorrhage. The certificate further recommended that the injured be taken to Apollo Child Hospital, Chennai, for better treatment. The discharge summary, which has been filed under Ex.A4, clearly explained the course adopted in the hospital for treating the appellant, for brevity, the contents of the same are not being repeated. The doctors who have treated the appellant at Apollo Child Hospital and later doctors who attended post- medical care at SVRRGGH have been examined as P.Ws.2, 4 and 5. The Tribunal has pertinently extracted the vital portions of the evidence deposed by P.Ws.2, 4 and 5. The aforesaid evidence of respective doctors clearly indicated the severity of injuries suffered and also the treatment undergone. For sake of better appreciation, Paragraphs 32 to 38 of the Tribunal order are extracted as under: “32. The Petitioners have assessed the compensation on the strength of the medical evidence. Ex.A-2 Wound Certificate which reads that the minor petitioner has sustained grievous injuries. The nature of the injuries is examined 12 CGR, J MACMA. No.112 of 2022 through P.W.2 Dr.S.Vasanth Kumar, he deposed in his chief before Advocate Commissioner that: “.....He is working at Pediatric care unit as consultant from 2018. The minor boy was admitted in his hospital on 7.5.2019 with history of road traffic accident. He was running his hospital at Chennai. The minor was brought in unconsciousness state with ventilator supports from Suraksha Hospital at Tirupati. He found that the child has signs of severe brain injury and other injuries. Both lungs are damaged, right leg is fractured. He kept him under ventilator, monitored brain, used pressure monitor, gave medication. 20 days he was in his hospital. P.O.P was done to leg fracture. Lungs damaged, ventilator support was given. Ophthalmologist gave treatment. Sezures occurred, levipil dose was increased. ECG was gone, MRI was done, it showed grade-III defuse exonal injury (brain cells are severely damaged). 33. On discharge the minor petitioner was on nasal tube feeding. The patient was not conscious. There is stiffness of limbs. Acupressure and physiotherapy is gone. Neuro rehabilitation is needed. 34. Doctor opined that the patient may not recover in future. Ex.A-4 and Ex.A-6 are discharge summary and medical bills are issued by his hospital. 35. In the cross-examination, except suggestions that the wounds are healed. The evidence of doctor is not shaken. 13 CGR, J MACMA. No.112 of 2022 36. Doctor B. Sasikumar Reddy was examined as P.W.4. He deposed that “....He is working as Pediatrician in Sri Suraksha Hospital, Tirupati. He worked as Assistant Professor in SVRRGG Hospital, Tirupati. On 27.5.2019 minor petitioner was admitted in his hospital with history of road traffic accident. There is traumatic brain injury, ventilate sepsis. Petitioner was treated with oral anti hyper pentives, IV antibiotics, IV fluids, nutrition therapy with chest physio occupational and general physiotherapy was done. Expenditure incurred is Rs.66,000/-." 37. In the cross-examination P.W.4 deposed that: "....the minor was in his hospital for 23 days with intensive care. The minor was discharged with physical and neurological disability.". 38. Petitioner examined Dr.A.Sudhakar Reddy. Neuro Surgeon, SVRRGG Hospital, Tirupati. He deposed in his chief as follows: "Minor sustained injuries in road traffic accident. The minor was found that bleeding from nose, head injury and was unconscious. He was treated initially at Railway Kodur community health centre, then treated at Apollo Hospital, Chennai, from 7.5.2019 to 27.5.2019. CT scan brain show intra cerebral hemorrhage, intra ventricular hemorrhage and cerebral edema, right leg x-ray shows fracture to proximal 1/3rd of right fibula, and contusions in hilar region of lungs. 14 CGR, J MACMA. No.112 of 2022 He was treated in ICU. After discharging from Apollo Hospital, Chennai, minor was brought to him for treatment. The minor is on clinical neurological examination. There is post traumatic right hemiparesis, post traumatic dysthasia (difficult in speaking), difficulty in walking, pain in right leg due to fracture, due to brain injury unable to continue the study and recognize people. His disability was assessed at 75%". 11. In the background of aforesaid evidence on record, before considering as to whether the disability certificate issued by P.W.5 assessing the disability as 75% should be considered in entirety for assessing functional disability and was Tribunal right in assessing it to 40%, the aspects needed to be gone into to delve upon such exercise as enunciated by various precedents needs to be kept in mind. 12. In Raj Kumar’s case1, the Hon’ble Apex Court explained the general principles relating to compensation in injury cases and assessment of future loss of earnings due to permanent disability. It is apt to quote following paragraphs: “Assessment of future loss of earnings due to permanent disability 8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary 15 CGR, J MACMA. No.112 of 2022 incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered 16 CGR, J MACMA. No.112 of 2022 permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% 17 CGR, J MACMA. No.112 of 2022 loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 : (2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567]) 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; 18 CGR, J MACMA. No.112 of 2022 (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the 19 CGR, J MACMA. No.112 of 2022 activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. 20 CGR, J MACMA. No.112 of 2022 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopaedic Surgeons, prepared by American Academy of Orthopaedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which 21 CGR, J MACMA. No.112 of 2022 gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. 17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be 22 CGR, J MACMA. No.112 of 2022 proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability. 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. 23 CGR, J MACMA. No.112 of 2022 (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” 13. Aforesaid view has been consistently followed by Hon’ble Apex Court in Sidram’s case3 and Mohd. Sabeer Alias Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation4. Keeping in view the summary of principles as discussed in case of Raj Kumar’s case1, the facts in the present case are to be considered. 14. The nature and seriousness of injuries sustained have been duly appreciated by the Tribunal. The Tribunal has arrived at the finding that the evidence of P.Ws.2, 4 and 5, besides wound certificate under Ex.A2 and discharge summary under Ex.A4, sufficiently discloses that the minor sustained fracture to leg, injuries to brain and he was treated in ICU for a long time, and the injuries were grievous in nature. It also found that minor had developed head injuries, cerebral cells had been damaged. Ex.A5, the disability certificate issued by Medical Board assesses permanent disability to be 75%. As per the said certificate, the following permanent disabilities are indicated: - 4 (2023) 20 SCC 774 24 CGR, J MACMA. No.112 of 2022 1. Post traumatic right hemiparesis (weakness and stiffness in right upper limb, right lower limb) 2. Post traumatic dysphasia (difficulty in speaking) 3. Difficulty in walking 4. Pain in right leg due to fracture of right tibia, right fibula, 5. Unable to continue his studies (1st class) 6. Unable to recognize people. Basing on the above disabilities the percentage of permanent disability is assessed as 75% (seventy five per percent) 15. The Tribunal, being aware, also recognised the complications of brain haemorrhages and fractures that claimant was suffering with, however, merely for the reason that the minor had not developed dysesthesia permanently, and that he is expected to have no difficulty to move in future, assessed the functional disability as 40%. The reasoning provided by Tribunal to discard or disbelieve the evidence of doctors who treated the claimant and in particular that of P.W.5, who issued medical disability certificate assessing disability as 75%, in the opinion of this Court appears to be strange and on surmises. The veracity and authenticity of certificate of disability issued by medical certificate as testified by P.W.5 carries significant weight and on the contrast, there is no other material evidence to show that the injuries, qua disability acquired by claimant, would not really 25 CGR, J MACMA. No.112 of 2022 incapacitate him from carrying on normal life. Therefore, this Court is of the view that it would be just and proper to accept the disability @75% as assessed by the medical board. Loss of income/earning capacity: 16. Coming to the aspect of loss of income, the Tribunal has assessed the same as two lakhs, having regard to the disability of 40%. The Tribunal has not provided the income that has been considered in arriving aforesaid figure. Faced with similar situation, since the Hon’ble Apex Court in Baby Sakshi Greola case2, considering case of seven years old child who met with an accident, assessed the loss of income by applying minimum wages to be payable to the skilled worker in the concerned state, this Court is inclined to assess the income as ₹8,079/- per month. Aforesaid amount is considered having regard to the minimum wages fixed by Government of Andhra Pradesh for the year 2019, on notional basis. As rightly contended by counsel for appellant and not opposed by respondent counsel, the claimant is entitled for awarding future prospects @40%. Accordingly, the compensation towards loss of income and earnings due to functional disability of 75% is being assessed by awarding future prospects and a multiplier of 18 keeping in view age of appellant. Thus, in the present case, the loss of income would be {[8079 + 26 CGR, J MACMA. No.112 of 2022 (40% of 8079] x 12 x 18} = ₹24,42,960/-. By applying 75% disability, the loss of income is assessed as ₹18,32,220, which is rounded off to ₹18,33,000/-. Non-pecuniary damages: 17. Tribunal has awarded an amount of one lakh towards pain and suffering. Though learned counsel for appellant, by placing reliance on judgment of the Hon’ble Apex Court in Baby Sakshi Greola’s case2, claimed ₹15,00,000/-, since the same was a case of 100% disability, this Court is inclined to award an amount of ₹3,00,000/-. To arrive said amount, this Court is fortified by Hon’ble Apex Court in Lalan D. Alia LAL and another v. Oriental Insurance Company Limited5 and as followed in Sanjay Rajpoot v. Ram Singh & Ors6. Marriage Prospects: 18. The Tribunal has not granted any amounts towards loss of amenities i.e., for marriage prospects. Learned counsel by referring to Baby Sakshi Greola’s case2 has claimed loss of marriage prospects of ₹5,00,000/-. In the said case, there was clear evidence from the doctor who treated opining that because of the mental status of injured therein, maintaining/forming 5 (2020) 9 SCC 805 6 2025 SCC OnLine SC 285 27 CGR, J MACMA. No.112 of 2022 marital/ familial bonds would be very difficult, hence, based on such evidence, non-pecuniary damages were awarded. But in the present case, as rightly contended by learned counsel for insurer, in the absence of any evidence from the doctors who were examined, speaking of the claimant's disability in being compatible with marital/familial bonds, this Court is not inclined to grant such damages. 19. Except for aforesaid amounts, which are now being considered and decided, there is no dispute with regard to other pecuniary and non-pecuniary damages awarded. In view of the same, the revised compensation awarded to appellant stands as follows: Sl.No. Heads Amount Awarded 1 Pain and suffering for two grievous injuries ₹3,00,000/- 2 Medical Bills ₹7,81,664/- 3 Transportation charges ₹75,000/- 4 Personal attendant charges ₹1,00,000/- 5 Future medical expenses ₹1,50,000/- 6 Nutrition expenditure and special diet ₹75,000/- 7 Loss of income with 75% disability ₹18,33,000/- Total ₹33,14,664/- 28 CGR, J MACMA. No.112 of 2022 20. In the result, this appeal is partly allowed and the quantum of compensation awarded by the Tribunal is enhanced to ₹33,14,664/- with interest at the rate of 7.5% per annum from the date of petition till the date of realization. The 3rd respondent - Insurance company is directed to deposit the enhanced compensation, after deducting the amount, if any, already deposited, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made, the appellant is entitled to withdraw the same. There shall be no order as to costs. As a sequel, interlocutory applications pending consideration, if any, shall stand closed. _______________________ CHALLA GUNARANJAN, J 26.09.2025 SS