IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TWENTY FITH (25TH) DAY OF NOVEMBER, TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.293 of 2008 Between: Mohd. Rafi Khan @ Mohd. Ayub Khan … Appellant And: U. Vasundhara & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.293 of 2008 JUDGMENT: This appeal is directed against the order dated 20.09.2007 in OP No.2341 of 2005 on the ﬁle of the MACT cum XIX Additional Chief Judge, Hyderabad, wherein the said claim application ﬁled by the appellant herein under Section 166 of the Motor Vehicles Act, was allowed in part, awarding compensation of Rs.6,88,000/- with interest at 7% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent- insurer. Perused the record. 3. The appellant herein ﬁled claim application seeking compensation of Rs.13,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 07.08.2005. According to the appellant, on that day, he was proceeding to his job on his Kawasaki motor cycle and when he reached near Iqbal Garden function hall, Chandrayangutta, a fourteen wheeler truck bearing No.AP 26 U 1447 driven in a rash and negligent manner by its driver, dashed against him, as a result of which he sustained multiple fracture injuries and was shifted to Owaisi hospital. It is further pleaded that the claimant suﬀered crush injury to left fore arm, compound fracture spine D12, and fracture of both bones of left fore arm, tenderness of both bones and a head injury and that he underwent multiple surgeries and was discharged on 27.08.2005. According to the claimant, he was working as electrician and earning Rs.5000/- per month and was aged 25 years by the date of the accident. 4. The ﬁrst respondent owner of the vehicle remained ex-parte. The 2nd respondent-insurer ﬁled a counter, opposing the claim and denying their liability to pay the compensation. During enquiry, PWs.1 to 7 were examined and Exs.A.1 to A.14 were marked on behalf of the claimant. No oral or documentary evidence was adduced on behalf of the 2nd respondent-insurer. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the truck by its driver. The said ﬁnding is not challenged by way of appeal by the 2nd respondent-insurer. The Tribunal awarded a total compensation of Rs.6,88,000/- with interest at 7% per annum from the date of petition. Not satisﬁed with the same, the claimant preferred the present appeal. 6. The main contention of the learned counsel for the appellant is that though the medical evidence of PW.3 coupled with the disability certiﬁcate Ex.A.13 issued by him shows that the claimant suﬀered physical permanent disability to the extent of 90%, the Tribunal erred in taking the same only at 25%. The learned counsel for the appellant would further contend that the Tribunal failed to award any amount towards transportation charges or extra nourishment or damage to clothing and articles. Learned counsel for the 2nd respondent-insurer on the other hand would seek to justify the award contending that the Tribunal has granted various amounts under several heads covering almost all the aspects of claim and the total amount of Rs.6,88,000/- awarded is just and reasonable. 7. The medical evidence on record would go to show that the claimant has sustained multiple grievous injuries, including crush injury on the left fore arm and elbow, loss of ﬂesh, disﬁgurement and complete loss of motor functions and sensory functions over left upper limb. PW.3 Professor of Orthopedic, who examined the claimant and issued disability certiﬁcate Ex.A.13 stated that besides the above injuries, the claimant has also suﬀered wedge compression fracture of D.12 and the compression is more than 50% and was operated and stabilized with pedicular screws and plates. He estimated the permanent disability at 90% and issued the disability certiﬁcate Ex.A.13. PW.2 Associate Professor of Trauma-Surgeon, Owasi Hospital also deposed about the injuries sustained by PW.1-claimant and stated that the claimant has undergone ulnar repair with split skin graft harvested from left thigh. He further deposed that the claimant undergone spinal fusion from D.11 to L-1 on 10.08.2005 and that he was discharged on 27.08.2005. PW.4 who is the Plastic Surgeon in Owaisi Hospital, testiﬁed that the claimant was admitted with crush injury on left fore-arm with exposed bones and tendons, fractures of both bones of left fore arm and fracture of dorsal 12th vertebra and that the limb survived and arteries were intact and therefore skin grafting was done by him. It is also in the evidence of PW.4 that the claimant requires multiple operations to make his limb useful and the multiple operations including replacement of the graft with muscle or skin ﬂap transferred either or a pedicle or as free micro vascular ﬂap and this will followed by reconstruction of the ulnar nerve with grafts obtained from nerves of the leg or legs. It is also in his evidence that each of four operations will cost approximately Rs.25,000/-. Ex.A.5 the discharge card would show that the claimant was inpatient in the hospital for a period of 20 days. Ex.A.4 medico legal record and Ex.A.8 Bio-chemistry record together with bunch of medical bills and prescriptions would support the claim of the appellant regarding nature of the injuries sustained by him and the treatment undergone. Thus, the medical evidence on record would go to show that the claimant has suﬀered multiple grievous injuries including crush injury of left fore arum and fracture of spinal card besides head injury and that he underwent treatment in Owaisi hospital for about 20 days, during which period he under gone multiple surgeries and that he was required to undergo multiple surgeries in future also. 8. The Tribunal has awarded a sum of Rs.1,35,623/- towards medical expenses based on the medical bills produced and Rs.1,75,000/- towards medical expenses for future surgeries. The Tribunal has also awarded Rs.40,000/- towards pain and suﬀering. Having regard to the gravity of the injuries sustained and the multiple surgeries undergone and required to be undergone in future, it is considered that the above amounts are just and reasonable. 9. According to the claimant, he was earning his livelihood as electrician and earning Rs.5,000/- per month, but he has not adduced any evidence in support of his income. In the absence of any such evidence, the Tribunal has taken the income of the claimant at Rs.3,000/- per month, which is considered as reasonable. However, as against the medical evidence of PW.3, coupled with Ex.A.13 which show that the disability is to an extent of 90%, the Tribunal has taken the same at the reduced level of 25% for no justiﬁable reasons. The Tribunal appears to have been under the impression that after the claimant undergoes future medical operation the level of disability may come down. The claimant has already undergone multiple surgeries. As matter stands the disability resulting from the injuries is estimated at 90% by a competent surgeon, who treated the claimant and issued certiﬁcate Ex.A.13. The consequence of the future surgeries, which the claimant is required to undergo, is unknown and there is no material on record to establish with certainty that after the claimant undergoes four or ﬁve future surgeries the percentage level of the disability would come down. Under those circumstances, the drastic reduction of the percentage of the disability from 90% to mere 25% appears to be without any basis. When the medical expert PW.3 has estimated the percentage of the disability at 90% as it exists as of now, the Tribunal ought to have taken the same into consideration without indulging in guess work of possibility for reduction of the percentage of the disability on a future date, which is stated to be dependant upon the success of the future surgeries that the claimant may have to undergo. 10. In the circumstances, for assessing the loss of earnings of the claimant, taking the disability at 90% on account of the multiple grievous injuries, including crush injury sustained by the claimant appears to be just and reasonable. The income of the claimant taken by the Tribunal at Rs.3,000/- is considered to be reasonable and out of it 90% loss of earnings comes to Rs.2,700/- per month [Rs.3,000/- x 90%] or Rs.32,400/- per annum and applying the relevant multiplier ‘17’ which is appropriate to the age of the claimant, loss of earnings on account of the disability comes to Rs.5,50,800/- [Rs.32,400/- x 17]. The Tribunal awarded a sum of Rs.84,000/- towards future loss of earnings during the course of future treatment and the same cannot be allowed, as it becomes superﬂuous in view of the grant of compensation towards loss of future earnings. Similarly, the amount of Rs.30,000/- awarded towards future loss of amenities, Rs.20,000/- towards future pain and suﬀering, Rs.50,000/- towards future incidental charges and Rs.30,000/- towards loss of future amenities of life cannot also be allowed .In the circumstances, the claimant is held entitled for a total compensation of Rs.9,01,423/-, (Rs.5,50,800/- + Rs.1,75,000/- + Rs.1,35,623/- + Rs.40,000/-), which is rounded to Rs.9,00,000/-. The claimant is however entitled for interest at 7% per annum on the original amount awarded by the Tribunal from the date of petition and at the rate of 6% per annum on the enhanced amount from the date of ﬁling of the appeal. The impugned award is modified accordingly. 11. In the result, the appeal is allowed to the extent stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 25.11.2011 bss