THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No.1998 of 2001 Date:14.09.2010 Between: Garrepalli Thirupathi …Appellant And S.K. Shamshuddin and two others …Respondents THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No.1998 of 2001 JUDMENT: This is an appeal from the award dated 21.11.2000 passed by the Motor Accidents Claims Tribunal (III Additional District Judge), Karimnagar in O.P.No.183 of 1997. The claimant before the Tribunal is the appellant herein. Claiming to be an workman in S.C.C.Ltd. aged 30 years on the date of the accident and stating that he was getting salary of Rs.4,168.18 ps. per month, the appellant filed claim petition claiming compensation of Rs.5 lakhs on account of the permanent disability sustained by him due to the injuries received in the accident occurred on 09.04.1995. The learned Tribunal held that as the accident took place on account of the rash and negligent driving of a lorry bearing No. ATS-3677 and the respondent No.1 being the driver, second respondent being the owner and the third respondent being the insurer of the offending vehicle are jointly and severally liable to pay the compensation to the appellant and the said finding became final. The appeal is filed only seeking enhancement of compensation on the ground that the compensation granted by the Tribunal below is grossly inadequate. Against the claim of Rs.5 lakhs made by the appellant, the learned Tribunal granted an amount of Rs.70,000/- together with interest @ 12% per annum. The appellant’s contention in this appeal is that the said amount is not just and reasonable and requires enhancement. I have heard the learned counsel appearing for the appellant and the learned counsel for the third respondent insurance company. Admittedly on the date of the accident the appellant was working as Badli filler in S.C.C. Ltd. But the contention of the third respondent insurance company is that the appellant is a temporary employee worked only for a period of 55 days and therefore, the salary which he was drawing as per his version cannot be taken into consideration for the purpose of computing compensation since his services can be terminated at any time. PW-2 (Ankam Potharaju) Senior Personal Officer, S.C.C.Ltd., Godavarikhani deposed before the Tribunal that Ex.A-4 salary certificate was issued by the company and as per the said certificate the appellant was drawing salary of Rs.4,168/- per month. He further deposed that in 1995 the appellant worked in his organization as Badli filler and Ex.A-5 is the appointment order of the appellant. He also stated that the medical board of S.C.C.Ltd. Kothagudem issued Ex.A-7 certificate stating that the appellant is unfit to work as Badli filler because of the injuries sustained by him in the accident. According to PW-2 had the appellant continued in their organization, he would have worked up to the year 2024 in which year he would have retired. However, in the cross-examination, he admitted that the appellant was appointed in the organization on 16.02.1995 on temporary basis and if any person is declared medically unfit, their organization will provide alternative appointment to such employees. According to this witness, the services of the appellant were not terminated because he was the temporary employee but as he became medically unfit to carry on the job. If the entire evidence of PW-2 is taken into consideration, it can be understood that even though the appellant was a temporary employee in their organization, in all probability he would have been continued in the job and also would have been promoted and would have earned promotions till his retirement which would have been in the year 2024. Considering that the appellant is only a temporary employee and there is risk of his termination at any point of time, I think it appropriate apart from considering him as workman, take his salary for the purpose of computing compensation at Rs.2,000/- per month without any addition to the future prospects. PW-3 Dr.K.M. Venkata Ratnam, Orthopaedic Surgeon who examined the appellant in S.C.C.Ltd., Godavarikhani found the following injuries on the person of the appellant: i) Lacerated injury on the middle of the right thigh. ii) An abrasion over the right knee. He stated in his deposition that on clinical examination he found fracture of femur (right side) which is communited and compound. He operated the patient and inserted external fixator on 09.04.1995. He said that another operation was performed on 10.05.1995 and nail was inserted in the thigh bone. Similarly, PW-4 Dr.K. Prasanna Simha, another orthopaedic surgeon in S.C.C.Ltd. Kothagudem to whom the appellant was referred stated in his evidence that the appellant was admitted in the hospital on 19.09.1995 and he was medically examined (reviewed) on 13.06.1996, 28.09.1996, 08.07.1997, 02.11.1997, 10.03.1998 and 25.05.1998. He stated that on 09.12.1995 the appellant underwent operation in their hospital for non-union of fracture of right femur and the appellant was advised crutch for the purpose of walking. According to PW-4 the appellant sustained 60% permanent disability to the right lower limb. He cannot squat, sit, there is limping and he also cannot walk properly. PW-4 and the Chief Medical Officer who constituted the medical board issued Ex.A-7 disability certificate and as per the certificate, the appellant became unfit for work in underground as Badli filler. It has been laid down in the two judgments rendered by the Division Bench of this Court in THE NEW INDIA ASSURANCE CO.LTD. SECUNDERABAD v. ABDUL KHADER JILANI @ JILANI AND ANOTHER[1], and PAMARTHI SUBBA RAO v. H. RAMA RAO AND ANOTHER[2] relied upon by the learned counsel appearing for the appellant that even though the workman suffers 45% or 50% permanent disability, if the disability is of such a nature which prevents him from doing work he was doing earlier, it is to be construed as 100% disability. In the case on hand, the appellant sustained 60% disability and the medical evidence clearly discloses that he became totally unfit to perform the job of Badli filler which he was doing prior to the accident. In view of the ratio laid down in the above two judgments by the Division Bench of this Court, I accept the contention urged by the learned counsel appearing for the appellant to consider the disability of the appellant as total. As I have already stated, the income of the appellant for the purpose of computing compensation can be considered as Rs.2,000/- per month. His annual income is Rs.24,000/-. To arrive at loss of earnings, his annual income shall be capitalized with the multiplier 17 as prescribed by the Apex Court in SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER[3] which comes to Rs.24,000/- x 17 = Rs.4,08,000/-. This is the amount for which the appellant is entitled towards loss of earnings. This apart considering the nature of the injuries sustained by the appellant and the kind of treatment, operations he had undergone, an amount of Rs.30,000/- can be granted towards pain and suffering. This apart, an amount of Rs.10,000/- can be granted towards medical expenses and extra nourishment. Thus, in all the appellant is entitled for compensation of Rs.4,48,000/-. The enhancement of compensation therefore would be Rs.3,78,000/-. The enhanced amount of compensation shall carry interest at 6% per annum from the date of the petition till the date of realization. Accordingly, the appeal is partly allowed. There shall be no order as to costs. _______________ R. KANTHA RAO, J Date:14.09.2010. ccm THE HON’BLE MR JUSTICE R. KANTHA RAO C.M.A.No.1998 of 2001 Date:14-09-2010 [1] 2007(5) ALD NOC 62 [2] 2009 ACJ 652 [3] 2009 (3) ALD 83 (SC)