IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1548 OF 2003 Between: Gullapalli Suresh ..... Appellant And Ch.V.N. Janardhana Rao & 2 others …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1548 OF 2003 JUDGMENT: This Civil Miscellaneous Appeal is directed against the award in M.V.O.P.No.651 of 1996, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Vijayawada, dated 09.10.2002. 2. The factual background for the appeal is that when the appellant was going in Ambassador Car No.AP 31F 3137 on 02.02.1996 from Vijayawada towards Hyderabad side, at Moolapadu on N.H.9 Road, the driver of the first respondent drove his vehicle rashly and negligently and dashed against the said Ambassador Car, resulting in grievous injuries to the appellant by fracture and dislocation of right hip joint and a grievous injury to the right eye. On the report of one Nageswararao, travelling in the first respondent’s lorry, the Police registered Crime No.26 of 1996 and the appellant and other injured were treated at the University General Hospital, Vijayawada. The appellant had to later take treatment at L.V. Prasad Eye Institute, Hyderabad, for the eye injury and a C.T. Scan of the head and brain, dated 01.02.1996, showed fracture of right temporal bone, maxillary bone and zygmotic bone and total optic atrophy to the right eye. Thus, the appellant claimed to have spent much for treatment and Rs.50,000/- towards medicines alone. The appellant claimed to be a businessman in automobiles, a partner in Srinivas Tyres, a politician and an agriculturist and to have held many public offices. He claimed to have been totally disabled in his business and public activities and hence, claimed a compensation of Rs.5,00,000/- from the owners and insurers of the lorry and the Ambassador Car. The owner of the lorry remained ex parte, while the owner of the car and the insurers contested the claim denying the allegations of the claimant and putting him to strict proof of his entitlement. 3. The Tribunal framed issues on the responsibility for the accident and the quantum of compensation and examined P.Ws.1 to 4 and marked Exs.A-1 to A-26, X-1 to X-4 and B-1 during the enquiry. 4. The Tribunal rendered the impugned award opining that the facts and circumstances disclosed that the accident occurred due to head on collision between two vehicles due to the rash and negligent driving by drivers of both the vehicles and the Tribunal refused to act upon either the contents of the Charge sheet or the claims of the claimant in this regard. However, the involvement of the claimant in the accident and his sustaining injuries in the accident were believed and in assessing the compensation hence payable, the Tribunal accepted the total loss of one eye to be the result of the accident as corroborated by the medical evidence. The Tribunal with reference to the certificate of P.W.4 about 30% disability concerning the right eye and the certificate by P.W.3 about 40% disability concerning the right hip joint, held the disablement concerning the eye to be 30%. The Tribunal did not act upon the Income Tax Returns and Sales Tax Records relied upon by the claimant as arising subsequent to the accident and towards the loss of vision of right eye, it considered it just and appropriate to award Rs.60,000/-. Apart from the damages for permanent disability, the Tribunal awarded Rs.40,000/- towards the permanent disability and pain and suffering in respect of the right hip joint. It also awarded Rs.1,500/- towards extra nourishment for three months, Rs.5,000/- towards medical expenses in the absence of medical bills and Rs.1,000/- towards transport and held the claimant to be entitled to the total compensation of Rs.1,22,500/- with interest at 9% per annum. 5. Concerning the liability to pay the compensation, the Tribunal noted that the claimant himself is the owner of the Ambassador Car in which he was travelling which he failed to disclose and hence, considered the insurer to be not liable to reimburse any damages. In view of the finding of the composite negligence of both the drivers of the vehicles, the Tribunal concluded that the claimant is entitled to only 50% of the compensation assessed from respondents 1 and 2, the owner and insurer of the lorry. It, accordingly, rendered the award also granting proportionate costs on the compensation awarded. 6. The claimant challenged the said award in this appeal contending that the permanent disability was not adequately compensated, that the sales tax and income tax records ought to have been acted upon and that at least Rs.75,000/- should have been granted towards medical expenses. The appellant also contended that the Tribunal also should have awarded higher sums towards pain and suffering, extra nourishment, etc., and the partnership deed of Srinivas Tyres, the income tax returns and sales tax assessments, apart from the posts held by the claimant in public offices, should have resulted in grant of the entire compensation as claimed. Hence, the claimant desired the impugned award to be reversed. 7. Sri A.V. Sesha Sai, learned counsel for the appellant and Sri B. Devanand, learned standing counsel for the second respondent-insurer and Sri I. Maamu Vani, learned counsel for the third respondent are heard and none entered appearance for the first respondent-owner of the lorry before this Court. 8. The grounds of appeal did not challenge the conclusion of the Tribunal about the appellant himself being the owner of the Ambassador Car in which he was travelling or about the disentitlement of the claimant to claim any compensation from respondents 3 and 4 in the claim petition. In the appeal, the third respondent to the claim petition was not impleaded at all and only the insurer of the Ambassador Car was impleaded as third respondent. The finding of the Tribunal about the accident occurring due to the composite negligence of the drivers of both the vehicles is also not challenged in the grounds of appeal and the said finding was also not challenged by any of the respondents to the claim petition. The said findings having become final, it has to be first concluded that respondents 3 and 4 to the claim petition/third respondent to the appeal are not liable to pay any compensation to the appellant and it should also be concluded that whatever is the just and adequate compensation to which the claimant is entitled, he will be entitled to recover only half of the same from respondents 1 and 2 jointly and severally. The ownership of the lorry with the first respondent and its subsisting insurance with the second respondent at the relevant time are not disputed before the Tribunal or this Court and hence, their liability to that extent cannot be disbelieved. 9. That leaves only the question of the quantum of compensation to be considered in this appeal. 10. The appellant was stated to be aged 39 years by the time of the claim petition and 45 years by the time of his deposition about six years later and the said age as claimed is not seriously disputed. The appellant, being a partner in Srinivas Tyres, Kodada, is corroborated by Exs.A-9 to A-11-Partnership Deed and Sales Tax Assessment Orders. The claims of P.W.1 about the public offices he held as an active politician are not disputed during cross-examination and he also claims to be owning Acres 6.00 of land from which he was receiving agricultural income. The claimant filed Ex.A-20-Certificate issued by the person incharge of Agricultural Market Committee, Kodada, to show that he was a member of that committee, Ex.A-21-Certificate issued by Sarpanch of Kodada, to show that he was a ward member of Grampanchayat for the period from 1981 to 1987 and Exs.A-12 to A-17-Acknoweldgement forms for filing income tax returns to show that he was submitting income tax returns to the department (which of course, were not accepted by the Tribunal as having arisen subsequent to the claim petition). Still, the fact remains that with the background he has, the claimant would have been earning a decent income from his activities for maintaining himself and his family. The Motor Vehicles Act, 1988, in its Schedule II, provides for assessing the notional income even of non-earning persons at Rs.15,000/- per annum and the claimant aged 39 years can be safely assessed to be earning at least twice that sum per annum even assuming that the refusal of the Tribunal to act on the Sales Tax and Income Tax records of the appellant was based on sound reasons and due to the absence of proof of the income from agriculture or business by any other acceptable documents, the assessment of compensation for the permanent disability suffered by the claimant should have, therefore, proceeded on the basis of a minimum income of Rs.30,000/- per annum for the claimant. 11. The finding of the Tribunal about the permanent disability suffered by the appellant is based on the certificates issued by P.Ws.3 and 4 respectively who also deposed before the Court about such permanent disability suffered by the claimant due to the fracture of right hip joint and due to total loss of vision of the right eye. The disability of 40% and 30% is thus, permanent in respect of both the limbs and the injuries having been sustained in the subject accident is evident from the other documents including Ex.A-5-Wound Certificate and Ex.A-6-Discharge Summary spoken to by P.W.2 who issued them. P.W.2 spoke about the treatment given to the claimant and the evidence of P.Ws.2 to 4 can be, thus, taken as probablising the permanent disability suffered in respect of two limbs by the claimant, which can be reasonably assessed as functional disability with reference to his whole body vis-à-vis, the occupation and activities of the injured at 1/3rd of his total capacity. If so, the loss of earning capabilities subsequent to the infliction of the permanent disability in respect of two limbs can be considered to be about Rs.10,000/- per annum. The appropriate multiplier applicable to a person aged 36 to 40 years is 15 as per SARLA VERMA VS. DELHI TRANSPORT CORPORATION AND ANOTHER[1], and if so, the compensation to which the claimant is entitled towards the permanent disability in respect of both the limbs would be Rs.1,50,000/-. 12. The evidence of P.W.2 is about issuing Ex.A-7-Receipt for Rs.25,000/- towards the amount charged by him for the treatment. The Tribunal dissected the evidence of P.W.2 extensively as to not believe the treatment and the expenses and did not grant any sum as claimed, but only granted Rs.5,000/- towards medical expenses. If the claimant had to receive treatment from the University General Hospital, Vijayawada, and L.V. Prasad Eye Institute, Hyderabad, for the eye injury and University General Hospital, Vijayawada, in respect of the injury to the right hip joint during the periods covered by various documents, he would have entirely incurred considerable expenses towards medicines, attendant’s charges, extra nourishment, charges of L.V. Prasad Eye Institute, Hyderabad, and transport and other inevitable expenses. Apart from Rs.5,000/- towards medical expenses, the Tribunal awarded only Rs.1,500/- towards extra nourishment for three months and Rs.1,000/- towards transport. As Ex.A-7- Receipt certified an expenditure of Rs.25,000/- paid to P.W.2, grant of Rs.40,000/- in total under all these heads may be just and reasonable. Towards pain and suffering, the Tribunal awarded only Rs.15,000/- towards the loss of right eye and no separate sum towards the permanent disability suffered due to fracture of right hip joint. The grant of Rs.30,000/- towards pain and suffering for both the injuries may be reasonable and adequate and an element of guess and estimate in assessing the damages under the pecuniary and non-pecuniary heads becomes inevitable. A close consideration of the entire material on record may indicate that the assessment of compensation by the Tribunal is too conservative and the appellant should have been considered to be entitled to a total compensation of Rs.2,20,000/- to represent just and adequate compensation in terms of Motor Vehicles Act, 1988. 13. While the compensation should be so determined and 50% of the same should be directed to be paid by respondents 1 and 2 herein, in view of the length of time for which interest has to be paid on the enhanced portion of the compensation, the same can be confined to 6% per annum, while of course, proportionate costs shall follow suit in respect of the enhanced amount also. 14. The Tribunal awarded Rs.61,250/-, being half of the compensation assessed against respondents 1 and 2 and respondents 1 and 2 will be now liable to pay half of Rs.2,20,000/- i.e., Rs.1,10,000/- towards the total compensation. Therefore, the enhancement can be rounded off to Rs.50,000/-. 15. In the result, the Civil Miscellaneous Appeal is dismissed without costs against the third respondent and the impugned award, dated 09.10.2002, in M.V.O.P.No.651 of 1996, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Vijayawada, is modified by awarding a further compensation of Rs.50,000/- payable with interest at 6% per annum from the date of the petition till the date of realization and proportionate costs against respondents 1 and 2 in addition to the compensation already awarded by the impugned award and no further directions are being given concerning disbursement of the compensation at this distance of time. 16. The Civil Miscellaneous Appeal is allowed, accordingly, in part against respondents 1 and 2 without costs. _____________________ G. BHAVANI PRASAD, J Date: 9th December, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1548 OF 2003 December 9, 2010. KL [1] 2009 ACJ 1298