IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A.No.642 of 2004 Between: United India Insurance Company Limited, Sulthan Bazaar, Hyderabad .. Appellant AND Chawan Kishan and another .. Respondents JUDGMENT: This appeal is directed against the award dated 16-07-2003 in O.P.No.671 of 2001 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge’s Court, Nizamabad. The 1st respondent herein was travelling on a Suzuki motorcycle as a pillion rider on 18-02-2001 and at about 2.00 P.M., Auto No.AP-25-T-9370 coming in the opposite direction, driven in high speed rashly and negligently, dashed against the motorcycle near Borlam cross road. The 1st respondent herein received multiple fractures all over the body including a crush injury on the right leg toe and fingers. The 1st respondent herein was treated at Government Hospital, Banswada, and then at Government Head Quarters Hospital, Nizamabad, and then at Hyderabad, but still the toe of the right leg was amputated and he had to incur an expenditure of Rs.50,000/- towards treatment, extra nourishment and medicines. He, therefore, claimed a compensation of Rs.6,00,000/- from the owner and insurer of the auto. While the owner did not contest the claim, the insurer denied the allegations of the claimant and contended that there was no rash and negligent driving of the auto and the insurer was not informed about the criminal proceedings against the auto driver and therefore, it desired the claim to be negatived. The Tribunal framed the points for consideration about the responsibility for the accident and entitlement of the claimant to compensation and examined PWs.1 and 2 and marked Exs.A.1 to A.55 during enquiry. The Tribunal rendered the impugned award, firstly accepting the evidence of the injured-PW.1 corroborated by Ex.A.1-First Information Report and Ex.A.4-Charge sheet to conclude that the accident occurred due to the rash and negligent driving of the auto, more so, in the absence of any contrary evidence for the respondents. The Tribunal, while assessing the compensation referred to the evidence of Orthopaedic Surgeon, who treated the injured PW.1 and found that the injured suffered five grievous injuries in total resulting in 55% permanent partial disability due to amputation of great toe of right foot and other injuries. The Tribunal noted the injured to be working as Head Master at the relevant time and to have been sanctioned commuted leave from 17-02-2001 to 31-03-2001. The Tribunal considered that this is not a case where the compensation payable should be calculated by adopting multiplier method and considered it just to award a sum of Rs.2,00,000/- as compensation towards injuries, fractures and amputation of great toe of right foot, while also awarding Rs.35,000/- towards medicines and extra nourishment and Rs.15,000/- towards past and future pain and suffering. The total compensation of Rs.2,50,000/- was directed to be jointly and severally paid by both the respondents in view of Ex.A.6-insurance policy showing the subsistence of valid insurance for the vehicle. The compensation was directed to carry interest at 9% p.a. The insurer challenged the said award in this appeal contending that the claimant did not produce any evidence in support of his suffering grievous and fracture injuries or any consequential disability. The insurer contended that any amputation would have resulted in payment of compensation of only Rs.60,000/- and for fractures, the Tribunal could not have granted more than Rs.5,000/- for each fracture. Even assuming that the claimant was on leave for one and half months, the total awarded amount could not have exceeded Rs.1,31,422/- and the Tribunal granted an excess compensation of Rs.68,578/- including Rs.35,000/- towards medicines and extra nourishment without any supporting evidence. Therefore, the insurer desired the impugned award to be reversed. Sri P. Phalguna Rao, learned standing counsel for the appellant and Sri M. Sanga Reddy, learned counsel representing Sri Ch. Janardhan Reddy, learned counsel for the claimant are heard and the owner remained unrepresented before this Court. The insurer did not challenge the liability for payment of compensation in the grounds of appeal and the conclusions of the Tribunal about the responsibility of the auto driver for the accident, the subsistence of valid insurance for the vehicle and the 1st respondent to the claim being the owner and the 2nd respondent to the claim being the insurer are not in dispute in the appeal. Therefore, the only question that remains is the quantum of just and adequate compensation to which the claimant is entitled. The age of the claimant stated to be 40 years by the time of the claim was not disputed and his occupation as Head Master in a Government School was also not disputed. His salary was attempted to be proved by production of Ex.A.8-Salary Certificate to doubt the genuineness of which there is no reason and his suffering five grievous injuries including amputation of great toe of right foot was corroborated by PW.2, the doctor, who also certified about the injured being left with a permanent partial disability of 55% due to the consequences of the injuries suffered in the accident. The evidence of PW.1 as corroborated by PW.2, therefore, should form the basis for assessing the compensation payable by both the respondents jointly and severally. It may be incidentally noted that in the Workmen’s Compensation Act,1923 by Schedule-I Part-II item 39, the amputation of great toe of right or left foot was statutorily assessed to result in 14% loss of earning capacity and that forms the basis for grant of compensation under the said statute. In the absence of any specific guidance in this regard under the Motor Vehicles Act or the Rules framed thereunder, the percentage of loss of earning capacity assessed by the other statute can be taken as safe guide for assessing the compensation. If the percentage of loss of earning capacity due to the amputation of great toe of right foot were to be, hence, calculated as 14% and not 55% permanent partial disability as assessed by PW.2, the same cannot be considered to be excessive or high or unrelated to the probablised fact. If the monthly salary of the injured-PW.1 was Rs.8,000/- at about that time, calculation of loss of earning capacity at 14% will take the compensation payable to a sum higher than the amount of Rs.2,00,000/- assessed by the Tribunal under that head. Any actual loss of earnings might not have resulted as the injured-Head Master continues to serve as such getting the same salary or getting consequential increases from year to year, but the permanent loss of limb ought to be compensated by adopting a reasonable basis for assessing the permanent disadvantage caused towards loss of future amenities for the rest of his life. Exs.A.17 to A.55 are the medical bills filed by the claimant and the prescriptions leading to purchase of medicines were also marked as Exs.A.12 to A.15. The Disability Certificate-Ex.A.10 and X-ray-Ex.A.11 are also towards corroboration of medical expenses that might have been incurred, and therefore, grant of Rs.35,000/- towards medicines, extra nourishment etc., may not be considered unreasonable. In fact, the claimant would have incurred other expenses towards attendant charges, transport, damage to clothing etc. Pain and suffering being compensated by Rs.15,000/- is obviously low even according to the grounds of appeal, which estimated that each of the fractures ought to have been compensated at Rs.12,000/- to Rs.15,000/- per fracture. Even the Second Schedule to the Motor Vehicles Act provides for compensation of Rs.5,000/- for each grievous injury and therefore, none of these three sums awarded by the Tribunal can be considered to be excessive or unreasonable warranting interference at this distance of time. Learned counsel for the 1st respondent had in fact submitted that the compensation awarded by the Tribunal was conservative and needs to be enhanced, but the claimant himself did not file any cross appeal or cross objections in this regard and there is no need to discuss about it at this distance of time. The Tribunal thus granted a reasonable compensation to the claimant. Even interest awarded at 9% per annum was not shown to be deviant from the then prevailing market rate of interest and therefore, without interference with the award, the appeal should fail. In the result, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 08-09-2011 Ksn