THE HON’BLE SRI JUSTICE B.N. RAO NALLA C.M.A.No.3504 of 2002 JUDGMENT: This appeal is filed by the claimant against the order dated 08.07.2002 in O.P. No. 112 of 1998 on the file of the Chief Judge, City Civil Court, Hyderabad whereby and whereunder the claim petition was partly allowed granting compensation of Rs.1,95,340/- as against the claim of Rs.3,00,000/-, with proportionate costs and interest @ 9 % per annum from the date of the petition till the date of realization. 2. The facts leading to the filing of this appeal can be summarized as follows: On 02.12.1997, the claimant was proceeding from his residence by walk. At that time, a matador van bearing No. AP 28/T 4214 was proceeding in the same direction driven in a rash and negligent manner at high speed by its driver and dashed against him, resultantly, he fell down and sustained fracture of two legs, injury to left elbow and grievous injuries to left leg and he was shifted to Osmania General Hospital where he was treated as inpatient. He is a carpenter by profession and used to earn at about Rs.2,000/- per month. Because of the injuries, he was bed ridden for a long period and his legs were operated and rods were fixed and he had to undergo second operation. 3. The first respondent is set exparte. 4. The second respondent-insurance company filed counter denying the allegations made in the claim petition and it disputes the avocation, income of the claimant. Further, it is stated that the claim made by the claimant is excessive. 5. Considering the pleadings of both sides, the lower Tribunal had framed the following points for consideration: i.Whether the accident is due to rash and negligent driving of the driver of the Metador Van? ii. Whether the petitioner is entitled for any compensation and to what amount? 6. The appeal grounds are that the lower Tribunal failed to appreciate the evidence with regard to permanent disability of the appellant-claimant; that the lower Tribunal erred in not granting more than the compensation amount claimed by the appellant-claimant towards loss of future earnings; that though the lower Tribunal assessed permanent disability at Rs,2,00,000/-, restricted it to Rs.1,44,500/-; that the lower Tribunal while considering the amputation of his right leg, failed to consider that the left leg was fractured; that the lower Tribunal ought to have awarded Rs.70,000/- towards extra nourishment and that the Tribunal ought to have awarded total compensation of Rs.3,00,000/- under all heads. 7. The lower Tribunal has answered Point No.1 that the accident had occurred due to rash and negligent driving on the part of the van driver. The medical record reveals that the appellant-claimant-injured was treated as inpatient at Osmania General Hospital for about 4 to 5 months for the injuries suffered by him in the Motor Vehicle Accident; that his right leg was amputated and his left leg and left elbow were fractured; that the appellant-injured claimant has claimed a total compensation of Rs.3,00,000/- under all heads. As per Ex.A.6, the appellant-claimant-injured suffered 70% disability. The grievance of the appellant- claimant- injured is that though he claimed a total compensation of Rs.3,00,000/- the lower Tribunal awarded an amount of Rs.1,95,340/- only, with 9% interest per annum; that though he claimed Rs.1,44,500/- towards loss of future earnings on account of losing his right leg, it was assessed and arrived at Rs.2,00,000/- but restricted the claim under the said head to Rs.1,44,500/-only, instead of awarding either assessed loss of future earnings at Rs.2,00,000/- and/or more. It is further represented on behalf of the appellant- claimant-injured that the lower Tribunal ought to have awarded Rs.25,000/- towards pain and suffering instead of Rs.20,000/- and that though Rs.70,000/- is claimed towards medical expenses under Ex.A.8-bunch of medical bills, the lower Tribunal granted Rs.11,840/- only. 8. On the other hand, it is canvassed on behalf of the respondent- insurance company that so far as Ex.A.8- bunch of medical bills is concerned that whatever amount is shown under Ex.A8- bunch of medical bills, the lower Tribunal has awarded the same. Therefore, the appellant-claimant-injured cannot question the same. Then coming to Ex.A.6 whereunder the disability of the appellant-claimant-injured is assessed at 70% and though the Tribunal assessed the loss of future earnings inter alia on account of amputation of his right leg at Rs.2,00,000/-, it has restricted the claim to the extent of claim made by the appellant-claimant-injured i.e. Rs.1,44,500/-. Since it is a judicial proceeding, in the course of which, the Tribunal had exercised its discretion. However, it is contended that since Ex.A.6 was marked through none other than the appellant-claimant-injured, it cannot be said to have been proved and that the contents thereof showing that the appellant-claimant-injured suffered 70% of disability cannot be accepted. It is further contended that assessment of the disability as has been mentioned under Ex.A.6 is not the evidence as such Ex.A.6 itself cannot be said to have been proved because the Doctor who issued the said document was not examined. In support of the contention, the learned standing counsel for insurance company relied on a decision reported in United India Insurance Company Limited, Hyderabad v. Mohd. Khaj Rasool Sayyed @ Mohd.Khaja Main Shaik and another,[1] wherein it was held as under: “……Under the provisions of the Evidence Act, a distinction has been made between private and public documents. Section 74 of the Evidence Act defines a public document and the mode of proof thereof. Section 75 of the Evidence Act defines that all other documents other than those defined under Section 74 are private documents. Section 61 of the Evidence Act provides that the contents of the document have to be proved by primary or secondary evidence and Section 64 of the Act says that the documents must be proved by primary evidence except in the case as provided in the Act. Therefore, any document produced by any of the parties to the lis necessarily requires to be proved in the manner as provided under the Evidence Act. In most of these cases, the claimants are producing certificates and discharge cards etc., issued by the doctors and hospitals and also the bills in regard to the expenses incurred by them which require to be proved in the manner as provided under the Evidence Act. Mere marking of documents through the claimants does not amount to proof of the said documents as held in the decision reported in 1971 S.C. 1856. In most of these cases, no serious attempt is made to produce the necessary competent witnesses. It is urged on behalf of the claimants that once such certificates and the bills etc., issued by the doctors, it is not necessary to examine them. Such contention cannot be accepted as there is no distinction between medical evidence or other evidence in a Court of law as per the provisions of the Evidence Act. The said contention on behalf of the claimants is to be rejected on the face of it. Therefore, necessarily it has to be held that in the absence of any evidence in proof of the documents through proper witnesses, the documents produced cannot be accepted nor can be relied on by the Court. Further, the medical evidence falls within expert evidence as contemplated under Section 45 of the Evidence Act.” 9. The learned counsel referring to the II Schedule of the Motor Vehicles Act submits that as per Items 4 and 5 dealing with general damages in case of injuries, disabilities and disability in non-fatal accidents, Rs.6,000/- is to be awarded i.e. Rs.5,000/- towards grievous injuries and Rs.1,000/- towards non-grievous injuries. So far as the medical expenses supported by bills/vouchers are concerned, an amount of Rs.15,000/- is to be awarded. Therefore, the case of the appellant squarely falls under both Items 4 and 5 in the II Schedule of the Motor Vehicles Act. That since the appellant-claimant-injured suffered injuries alleged to have been the result in permanent total disablement, the percentage of loss of earning capacity shall be as per Schedule I under the Workmen’s Compensation Act, 1923; that since the appellant-claimant-injured suffered amputation of his right leg from below knee, it squarely comes under Item 20 of Schedule I of the Workmen’s Compensation Act,1923 whereunder the amputation below knee with stump exceeding 8.89 cms but not exceeding 12.70 cms is assessed at 50% towards permanent disability; that if the same is taken into consideration, the future loss of earnings of the appellant- claimant-injured on account of amputation of his right leg below knee comes to Rs.1,20,000/-. Therefore, it is contended that the lower Tribunal has exceeded the said limit by assessing the loss of future earnings on that count at Rs.1,44,500/-. Ultimately, it is contended that whatever amount is awarded by the lower Tribunal in favour of the appellant-claimant-injured is exceeding the statutory limits under the Motor Vehicles Act as well as the Workmen’s Compensation Act,1923. 10. Since the appellant herein is claimant-injured and it is not the respondent-insurance company, the pleas taken by both sides are taken into consideration and since the lower Tribunal taking into consideration the facts, the evidence and the other material brought on record has awarded a total compensation of Rs.1,95,340/- under all heads, it appears the compensation awarded by the lower Tribunal is just and reasonable and as such, this court is of the view that it need not be enhanced. 11. With this observation, the appeal stands dismissed. _________________ B.N.RAO NALLA,J 15-07-2010 Stp [1] 2003 (5) ALD 162