THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.652 of 2003 JUDGMENT: This is an appeal filed by the claimant seeking enhancement of compensation pursuant to the award in O.P.No.1623 of 1999, dated 16-10- 2002 on the file of the Chief Judge, City Civil Court, Hyderabad. Respondent No.1 is the owner of the offending lorry bearing registration No. TN 51 2728 and the second respondent is the Insurance Company with which the vehicle was insured. This is a case of injuries. The claimant is a Home Guard working in the Police Department. At the time of accident, he was on deputation to the Excise Department. On 06-11-1999, the claimant and his friend were proceeding in the scooter bearing registration No.AP-28-G-9994 from Shamshabad to Hyderabad on National Highway No.7. The lorry bearing registration No. TN-51-2728 came in the opposite direction, driven in a rash and negligent manner, and dashed the scooter resulting in grievous injuries to the claimant. The claimant, therefore, filed the O.P. and sought for a compensation of Rs.3,00,000/- for the injuries sustained by him. The first respondent (owner of the vehicle) remained ex parte and the second respondent Insurance Company contested the claim. The Tribunal was formulated the issues whether the accident took place on account of the rash and negligent driving of the lorry by its driver and whether the claimant is entitled to compensation and if so, to what amount and from whom. The claimant examined himself as P.W.1 and examined the Dr.Samson, Dr.Raghava Reddy and Dr.V.S.Reddy as P.Ws.2, 3 and 4. The claimant also marked documents Ex.A1 (C.C. of F.I.R.), Ex.A2 (C.C. of Charge Sheet), Ex.A3 (Certificate issued by Raghavendra Hospital), Ex.A4 (Discharge Summary), Ex.A5 (Discharge Card), Ex.A6 (Bunch of Medical Prescriptions), Ex.A7 (Bunch of Medical Bills for Rs.50,598/-), Ex.A8 (Service Certificate), Ex.A9 (Bunch of X.Ray films), Ex.A10 (Photostat copy of Policy), Ex.A11 (Certificate issued by Superintendent, Prohibition & Excise) and Ex.A12 (Certificate issued by Knowledge School). The second respondent did not examine any witness, but marked Ex.B1 (Insurance Policy). The Tribunal on a consideration of the material awarded a sum of Rs.6,000/- as against Rs.50,000/- claimed for loss of earnings for the period of three months during which the claimant was disabled to work. A sum of Rs.37,887/- was awarded as against Rs.1,00,000/- claimed towards medicines and extra-nourishment. Rs.20,000/- as against the claim of Rs.30,000/- was awarded towards pain and suffering. Rs.10,000/- as against the claim of Rs.1,05,000/- was awarded towards disability. In all, awarded Rs.73,887/-. Not satisfied with the quantum, the claimant has filed the present appeal. Heard the learned counsel for both parties. It may be mentioned that it is the case of the claimant that he has suffered partial permanent disability on account of the fracture of his right leg, which was operated and due to which he was disabled to perform his normal duties. In order to support the said contention though he examined Dr.V.S.Reddy as P.W.4 in addition to Dr.Samson and Dr.Raghava Reddy as P.Ws.2 and 3, the Tribunal did not advert to the evidence of P.W.4. It is contended that without taking note of the evidence of P.W.4, the Tribunal passed orders on 16-10-2002. Upon noticing the same, the appellant immediately filed I.A.No.3722 of 2002 to incorporate the evidence and to consider the same. The said I.A. was allowed by orders dated 18-12-2002 as apparent from the appendix of evidence enclosed to the impugned order. It is therefore contended that non- consideration of the evidence of P.W.4 resulted in the failure to award adequate compensation towards loss of earning capacity. On the other hand, the learned counsel for the second respondent - Insurance Company would submit that the amount awarded is just and reasonable and the same need not be interfered with. Since this appeal is at the instance of the claimant for enhancement, issues relating to rash and negligence need not be gone into. Therefore, the only point for consideration is whether the claimant is entitled for enhancement of compensation and if so, to what amount. As noted above, amounts are awarded towards loss of earning, medical expenses, pain and suffering and disability. The compensation towards disability was restricted only to a sum of Rs.10,000/- on the ground that the Doctors P.W.2 and P.W.3 did not certify the extent of disability suffered by the claimant. As noted above, although P.W.4 was also examined, the Tribunal did not advert to his evidence. Therefore, the evidence of P.W.4 is required to be considered in this appeal to assess the actual disability. P.W.4 was examined on 05-09-2002. According to his evidence he was working as an Orthopedic Consultant for Swapna Hospitals. He examined the complainant on 05-09-2000 and found the complainant suffering with fracture of right leg in a state of non-union. On his advice, surgery was performed on 08-09-2000 for auto bone grafting and to remove the implants. A long leg plaster of paris casing applied to the claimant and he was discharged on 14-09-2008. Sutures were removed on 18-09-2000 with further advice for rest for thee more months. He deposed that the claimant suffered two centimeters shortening of right lower limb with restricted movement of ankle, S.T. joint and other tarsil joints. He certified that the terminal degree movements are restricted at right knee joint and it is difficult for the claimant to squat normally. He found significant disformity in the right leg. He further certified that the loss of earning capacity and functioning of disability is valued at 20% to 22% and the disability is permanent in nature. In the cross-examination at the instance of the second respondent, he denied the suggestion that there was a gross negligence in the Raghavendra Hospitals and the claimant was also responsible for non-compliance of the advice. He denied the suggestion that the claimant underwent only skin grafting. He asserted that it is unlikely to gain 70% ability in future also. He further stated that the claimant can attain sedentary work like office work only and he may not be able to squat properly. As noted above, the respondents did not adduce any evidence nor could they impeach the evidence of P.W.4. The evidence of P.W.4 is very categorical and convincing that the claimant suffered disability at least to an extent of 20%. The evidence of P.W.4 coupled with the evidence in Exs.A4, A5, A6 and Ex.A8 being tenable is liable to be accepted. Indisputably, the claimant is a Government servant working as Home Guard and his salary as per Ex.A11 is Rs.1,200/- per month. The Tribunal rightly disbelieved the version of the claimant that he was also working in a private school as night guard and rightly discarded Ex.A4. Therefore, relying on Ex.A11, the income of the deceased can be fixed at Rs.1,200/- for the purpose of computing the compensation towards disability. Calculating on the said basis, the annual income of the claimant is Rs.14,400/- (Rs.1200/- x 12). There is no dispute that the claimant was aged 27 years and the multiplier is ‘18’ as per schedule-II of the Act. Therefore, the total earnings would be Rs.2,59,200/-(14400 x 18). Applying the 20% disability, the loss of earning capacity would be Rs.51,840/-. It is, therefore, held that the claimant is entitled for the said amount of Rs.51,840/- as against an amount of Rs.10,000/- granted by the Tribunal towards the disability. Therefore, the claimant is entitled for the difference of Rs.41,840/- (Rs.51,480 – 10,000) with interest at 6% per annum on the enhanced amount from the date of the petition till the date of realization under the head disability. The other sums awarded by the Tribunal are not liable to be interfered with. The Award in the impugned O.P.No.1623 of 1999 is accordingly modified, holding that the claimant is entitled for enhancement of compensation of Rs.41,840/- in this appeal with interest @ 6% per annum on the said enhanced amount from the date of petition till the date of realization. Both the respondents are jointly and severally liable to pay the said amount. The Appeal is allowed in part as indicated above. There shall be no order as to costs. ______________ NOUSHAD ALI, J. 29th July, 2010. skmr THE HON’BLE SRI JUSTICE NOUSHAD ALI C.M.A. No.652 of 2003 Date : 29-07-2010 Between : T.Venkat Reddy .. Appellant and Mrs.M.Shanthi & another .. Respondents