IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY THIRD DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.1898 of 2006 Between: Regula Rajesham .. Appellant AND Rapolu Kanakaiah and others .. Respondents JUDGMENT: The appeal is directed against the award in O.P. No.367 of 2004 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Karimnagar, dated 06-06-2006. The appellant and another were proceeding on a two wheeler on 03-05-1999 and at about 11 P.M. near Shanthinagar bus shelter, tractor No.AP 15U 3270, driven rashly and negligently in high speed, hit the two wheeler. The appellant suffered a fracture in the right leg and was treated at Government hospital, Siricilla and Shivaramakrishna hospital, Karimnagar spending Rs.50,000/-. The appellant, a toddy tapper, aged 34 years, claiming to be earning Rs.4,000/- per month, claimed a compensation of Rs.3,00,000/- from the driver, owner and insurer of the tractor for the permanent disability he suffered due to the accident. The driver remained ex parte before the Tribunal, while the owner of the tractor claimed that the two wheeler had no lights and due to the negligence of the person driving the two wheeler, the accident took place. The compensation was also contested as excessive. The liability of the 3rd respondent to indemnify the 2nd respondent was also insisted upon. The insurer contested the claim putting the claimant to strict proof of all the allegations and denying any liability to pay the highly excessive compensation. The Tribunal framed issues about the manner of the accident and the entitlement of the claimant to any compensation. It examined P.Ws.1 and 2 and marked Exs.A.1 to A.8 and B.1 during enquiry. The Tribunal accepted the evidence of the injured P.W.1 corroborated by the first information report and charge-sheet, Exs.A.1 and A.2, to conclude that the accident occurred due to the rash and negligent driving of the tractor, more so, in the light of the absence of any contrary evidence for the respondents. The Tribunal, in assessing the compensation, referred to the evidence of P.W.2, the orthopaedic surgeon and noted that notwithstanding a surgery performed at the Government headquarters hospital of the District, the appellant was left with a partial permanent disability of 30% due to difficulty in sitting, standing and working. The Tribunal noted that the appellant claimed to be toddy tapper based on Ex.A.5, but Ex.A.5 only was a licence to sell toddy in retail and does not show him to be toddy tapper. Therefore, the Tribunal notionally assessed the income of the appellant at Rs.1,500/- per month as an unskilled labourer and applying a multiplier of 15 for his age of 35 years, the 30% disability was assessed to cause future loss of earning capacity to a tune of Rs.81,000/-. The Tribunal also awarded Rs.15,000/- towards pain and suffering, Rs.20,224/- towards medical expenses and Rs.9,000/- towards of loss of earnings and on the total compensation of Rs.1,25,224/-, the Tribunal awarded interest at 7.5 per cent per annum. The claimant was aggrieved by the said award and contended in this appeal that the fracture of both bones of right leg resulting in 30% partial permanent disability and shortening of the right lower limb apart from stiffness and deformity, was not adequately compensated. The claimant claimed that future medical expenses at Rs.50,000/-, pain and suffering at Rs.50,000/- and monthly earnings at Rs.4,000/- should have been the proper assessment and interest should have been granted at 12 per cent per annum. Sri M. Ram Mohan Reddy, learned counsel for the appellant and Sri Kota Subba Rao, learned standing counsel for the 3rd respondent-insurer are heard and respondents 1 and 2 are unrepresented before this Court. The respondents did not challenge the conclusion of the Tribunal about the responsibility for the accident and the joint and several liability of the respondents to justly and adequately compensate the appellant for the injuries and their consequences. The quantum of compensation payable alone is, therefore, left for assessment in this appeal. The evidence of P.Ws.1 and 2 corroborated by relevant documents proved that in spite of a surgery, the injury suffered in the accident left stiffness of joints, deformity of right limb, angulation of right leg by 2 inches and shortening as stated by P.W.2, resulting in 30% partial permanent disability. The appellant being an able bodied and healthy person prior to the accident, earning his living through the licence to sell toddy in retail at about the relevant time, was also probablised by Ex.A.5 and the evidence of P.W.1. Even if he was not proved to be a toddy tapper by himself, the Tribunal took him to be an unskilled labourer for purposes of assessing his income, which was assessed at Rs.1,500/- per month, but the statutory minimum wages payable to an unskilled labourer at about that time were conceded to be about Rs.1,800/- per month. Therefore, the 30% loss of future earning capacity should have been assessed on the monthly income of Rs.1,800/- and if so, it comes to Rs.1,03,680/- applying a multiplier of 16 for the age of 35 years as per Sarla Verma v. Delhi Transport Corporation[1]. The compensation for pain and suffering also should be reasonably enhanced given the severity of the injuries suffered and the tortious treatment which the appellant had to undergo for about 6 months and hence, the pain and suffering can be compensated by a further sum of Rs.5,000/-. Coming to the loss of income, which was assessed only for six months by the Tribunal, the advice of the doctor himself was to take bed rest for six months since 08-05-1999 and the evidence of P.W.2 shows that notwithstanding the treatment, the permanent partial disability left for the claimant would not have allowed him to carry on his normal avocation with the same degree of efficiency at least for 2 to 3 months more. The loss of earnings can be calculated for about 8 months at the rate of Rs.1,800/- per month, which comes to Rs.14,400/-. The Tribunal also awarded Rs.20,224/- towards medical expenses proved by Exs.A.4 and A.6 to A.8 and the same need not be disturbed. If so, the total compensation comes to Rs.1,58,304/-, which can be rounded off to Rs.1,58,000/- and there can be enhancement by Rs.33,000/- to make the compensation just and adequate. Interest can be retained as 7.5 per cent per annum as granted on the original compensation, on the enhanced compensation also and the award has to be modified accordingly. Therefore, the award, dated 06-06-2006 in O.P. No.367 of 2004 on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Karimnagar is modified by awarding a further compensation of Rs.33,000/- (Rupees thirty three thousand only) with interest thereon at 7.5 per cent per annum from the date of the petition till the date of realization in addition to the compensation already granted and the civil miscellaneous appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 23-09-2011 Svv [1] 2009 ACJ 1298