IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.1344 OF 2007 BETWEEN The Vice-Chairman & Managing Director, APSRTC, Hyderabad. …APPELLANT AND Kancherla Srinivasa Rao and another. …RESPONDENTS Counsel for the Appellant: Mr. K. SATYANARAYANA MURTHY Counsel for the Respondents: Mr. KAMBAMPATI RAMSH BABU The Court made the following: - JUDGMENT: This is an appeal by APSRTC against the award passed by the Motor Accidents Claims Tribunal – cum – District Judge, West Godavari, Eluru in O.P.No.374 of 2006 dated 05.01.2007. 2. The first respondent herein filed the aforesaid claim petition seeking compensation of Rs.4,00,000/- on account of injuries suffered by him in the accident involving the claimant and the bus belonging to APSRTC bearing No. AP 10 Z 9067. The first respondent in the OP was the driver of the offending vehicle whereas the appellant herein has alone contested the OP denying there is any rash and negligent driving of the driver of the bus and that the compensation claimed is excessive. While the claimant led evidence of himself and that of the Doctor, as P.Ws.1 and 2 respectively, copies of FIR, wound certificate and charge sheet were marked as Exs.A1 to A3. The discharge summary of the hospital where the claimant took treatment, the disability certificate as well as driving licence of the first respondent – driver of the offending vehicle were marked as Exs.A4, A5 and A6 respectively. 3. On consideration of the aforesaid evidence, with respect to rash and negligent driving, issue No.1 was framed and answered by the tribunal in favour of the claimant and on issue No.2 relating to compensation, since the claimant was attending to agricultural work but had no documentary evidence to establish his earning at Rs.4,000/- per month, took the minimum earning at Rs.100/- per day and the tribunal below assessed the income of the claimant at Rs.3,000/- per month, which works out to Rs.36,000/- per year. By applying multiplier at 14.81 by following the decision in BHAGWAN DAS v. MOHD. ARIF [1987 (2) ALD 137] the tribunal calculated the 50% of disability suffered by the claimant and awarded compensation of Rs.2,66,580/-. The tribunal also awarded a sum of Rs.25,000/- towards fracture injury, Rs.10,000/- towards pain and suffering and another sum of Rs.10,000/- towards reimbursement of medical bills and a sum of Rs.3,000/- each towards attendant’s charges and nourishment charges. Thus, an aggregate sum of Rs.3,17,580/- was awarded with interest at 7.5% per annum. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. 5. Sri K. Satyanarayana Murthy, learned counsel for the appellant submits that the tribunal has awarded excessive amount of compensation when there is no evidence of any earnings of the claimant. He also submits that the multiplier applied is excessive and even after giving compensation for disability, the grant of separate amounts towards fracture injury, pain and suffering as well as medical expenses was unjustified. Learned counsel also contended that the finding of rash and negligent driving against the appellant herein is unjustified. 6. Learned counsel for the respondent, on the contrary, submits that the fracture injury is the one for which the claimant underwent pain and suffering and treatment, the same was, therefore, rightly compensated by the tribunal below apart from the compensation on account of disability. 7. While considering the aforesaid contentions, so far as issue No.1 is concerned, the tribunal was justified in reaching the conclusion in favour of the claimant in view of the fact that only evidence available before the tribunal was that of the claimant and the appellant did not lead any evidence oral or documentary. Secondly, to the extent of assessment of compensation, though the tribunal has followed the decision in BHAGWAN DAS’s case and applied multiplier, in fact, the income of the claimant could be less than Rs.40,000/- even as per the finding of the tribunal and as such, the second schedule under the Motor Vehicles Act, 1988 (for short ‘the Act’) would get attracted where higher multiplier 16 is available with respect to claimant for the age group of 36. However, in the absence of any appeal or cross-appeal by the claimant, there is no warrant to interfere with the assessment of compensation of Rs.2,66,580/- as arrived at by the tribunal below, as in any case, the same is based on the ratio of the aforesaid decision. 8. To the extent of compensation, for fracture injury is concerned, the same also is justified inasmuch as the said fracture resulted in pain and suffering as well as hospitalization for the claimant and the same is compensated by award of Rs.25,000/-. The said compensation is, undoubtedly, different from compensation for permanent disability. However, the learned counsel for the appellant is right in contending that further sum of Rs.10,000/- awarded under the head of pain and suffering is unjustified. As mentioned above, since the compensation for fracture includes the head – pain and suffering, the said amount could not have been separately awarded. So far as medical bills are concerned, the tribunal has awarded Rs.10,000/- and keeping in view, the fact that the claimant was already hospitalized for three months, in the absence of medical bills the minimum amount could have been awarded, there is no warrant to interfere with the rest of the award except the interest part, which is at 7.5% per annum, as the Supreme Court has been consistently granting 6% interest in matters of compensation under the Act. 9. The impugned award is modified by disallowing the compensation towards pain and suffering and to the extent of interest the same shall stand substituted by 6% per annum as against 7.5% awarded under the impugned award. The civil miscellaneous appeal is accordingly allowed in part to the extent indicated above. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J July 21, 2010 DSK