IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.4132 of 2003 Between: Md. Muneer .. Appellant AND Korivi Rajamallaiah and others .. Respondents JUDGMENT: This appeal is directed against the award in O.P. No.520 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Karimnagar, dated 15-07-2003. The appellant then aged 10 years was playing in front of his house on 20-05-2002 at 11.30 A.M. when car No.AP 36D 3545, driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent, dashed against him. The accident due to the rash and negligent driving of the car resulted in grievous injuries to the appellant. He was shifted to Government hospital, Ramagundam where the police registered Crime No.69 of 2002. For the fracture of right femur and other injuries, the appellant was later treated at Government hospital, Karimnagar and Surya Nursing home, Godavarikhani where he underwent a surgery for insertion of a rod in the right leg apart from PoP cast. The appellant claimed that he was bedridden for two months incurring an expenditure of Rs.39,000/- for treatment and to have lost one academic year due to the accident and the disability. It was claimed that he was working as part time labourer earning Rs.600/- per month. Hence, a compensation of Rs.1,00,000/- was claimed jointly and severally from the respondents. Respondents 1 and 2, the driver and owner of the car, denied the accident or any negligence and again stated that the accident took place only due to the negligence of the appellant himself and in case of liability to pay compensation, it is on the insurer. The insurer contested the claim denying the accident or rash and negligent driving by the 1st respondent or the 1st respondent having a valid driving licence or the injuries and treatment of the appellant. The Tribunal framed issues on such pleadings about the responsibility for the accident and the entitlement of the appellant to compensation and examined P.Ws.1 to 3 during the enquiry and marked Exs.A.1 to A.11 and B.1. The Tribunal rendered the impugned award accepting the evidence of the eye witness P.W.2 corroborated by Ex.A.1 first information report and Ex.A.3 charge-sheet. The Tribunal concluded in the absence of any contrary evidence that the accident took place due to the rash and negligent driving by the 1st respondent. The Tribunal referred to the evidence of P.W.1 about the treatment of his minor son at an expense of Rs.39,000/- and the evidence of the doctor as P.W.3 about the fracture of right femur and injury on the right abdomen, for which a surgery was conducted in the right leg fixing a plate and screw. P.W.3 was noted to have certified the minor boy to have sustained 20% physical disability with limping gait. The necessity for another surgery at a cost of Rs.13,000/- was also stated by P.W.3. The oral and documentary evidence made the Tribunal grant Rs.23,000/- towards injuries and Rs.10,000/- towards medical expenses making a total of Rs.33,000/-. On such sum, the Tribunal awarded interest at 9 per cent per annum and proportionate costs. The appellant preferred the present appeal claiming that the compensation granted was meagre and not in proportion to the injuries suffered, treatment taken, disability left and expenses incurred. Therefore, the claimant desired the entire balance of compensation as claimed to be granted. Heard Sri K. Jagadishwar Reddy, learned counsel representing Sri A. Rajashekar Reddy, learned counsel for the appellant and Sri C. Prakash Reddy, learned standing counsel for the 3rd respondent. While the 1st respondent is stated to be not a necessary party to this appeal, none entered appearance on behalf of the 2nd respondent-owner of the vehicle. The finding of the Tribunal about the responsibility of the car driver for the accident with his rash and negligent driving remained unchallenged and has become final. The ownership of the car with the 2nd respondent and its insurance with the 3rd respondent were not disputed. The joint and several liability of the respondents to justly and adequately compensate the injured appellant is, therefore, not in question and it is only the quantum of compensation that is the subject of adjudication in this appeal. The appellant was a minor boy aged 10 years at the time of the accident and the evidence of P.W.3, the doctor is about examining the minor boy immediately after the accident and finding fracture of right femur and an injury on the abdomen. P.W.3 was the surgeon who operated for fixing a plate and screw at the place of fracture and he stated on oath that the boy continued to be under his treatment till his evidence. He certified the disability of the injured minor boy to be 20% physical disability with limping gait under Ex.A.11 certificate. Except suggesting that the disability was exaggerated, there was no contrary evidence for the respondents and hence, the evidence of the father of the injured as P.W.1 and brother of the injured as P.W.2 were sufficiently corroborated by the independent medical evidence. If there was 20% physical disability in respect of a limb and keeping in view the age of the injured, which is likely to facilitate reduction of the physical disability over the years, the functional disability with reference to whole body may be reasonably estimated at 15%. As the injured was a minor boy and as even P.W.1, the father, did not repeat the claim made in the claim petition that he was earning Rs.600/- per month as part time labourer, his capacity to earn can be assessed with reference to II Schedule to the Motor Vehicles Act, 1988 under which such non- earning persons are presumed to be earning Rs.15,000/- per annum. For 15% functional disability concerning the whole body for a boy of 10 years, the future loss of earning capacity can, therefore, be estimated by applying the multiplier 15 as per the II Schedule itself at Rs.33,750/-. Coming to the damages for pain and suffering, the scale adopted by II Schedule itself can be adopted at Rs.5,000/- for grievous injury and Rs.1,000/- for simple injury in the light of the assessment of loss of future earnings on the basis of the II Schedule. Damages payable under these two heads come to Rs.39,750/-. Coming to the medical expenses, the payment under Ex.A.9 bill to Surya hospitals was to a tune of Rs.20,011/- and the miscellaneous medical bills produced by the claimant and admitted into evidence were to a tune of Rs.5,901-75 ps. There was also an estimate for Rs.13,000/- by P.W.3 under Ex.A.10 towards further surgery for removal of the plate and nails, while it is not known whether such further surgery had been undergone. In view of the proof of expenses of Rs.26,000/- and the necessity for further treatment, the actual medical expenses can be rounded off to Rs.30,000/- which are reimbursable by the respondents. Hence, the total compensation to be awarded can be rounded off to Rs.70,000/-. While the accident was on 20-05-2002 and the petition followed suit on 06-09-2002, the respondents have to pay interest for such a length of time and therefore, such interest can be limited to 6 per cent per annum on the enhanced portion of compensation, while proportionate costs, of course, shall follow suit. In the result, the award, dated 15-07-2003 in O.P. No.520 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Karimnagar is modified by granting further compensation of Rs.37,000/- (Rupees thirty seven thousand only) with interest thereon at 6 per cent per annum from the date of the petition till realization and proportionate costs in addition to the compensation already awarded by the impugned award. The appeal is allowed in part accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 01-02-2011 Svv