HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No. 63 of 2008 and Cross Objections (SR) No.31269 of 2010 Date:24-06-2011 M.A.C.M.A.No.63 of 2008: Between: The New India Assurance Company Ltd. Rep. by its Branch Manager, Warangal ……….. Appellant And Bathula Sajeeva Rao & Sanjeevulu and another …….. Respondents HON’BLE SRI JUSTICE K.S. APPA RAO M.A.C.M.A.No. 63 of 2008 and Cross Objections (SR) No.31269 of 2010 COMMON JUDGMENT: Being aggrieved by the judgment and decree dated 16-03-2007 passed in M.V.O.P.No.1185 of 2004 on the file of the Chairman, Motor Accident Claims Tribunal-cum-Principal District Court at Warangal, the present appeal is filed by the second respondent-Insurance Company and the Cross Objections are filed by the petitioner. For the sake of convenience, the parties hereinafter will be referred to as they are arrayed before the Tribunal. 2. The brief facts of the case are that on 05-03-2004, while the petitioner was returning to Kamalapur village from Mangapet town on his two wheeler and when he reached near the market yard at Gamponigudem village sivar, the tractor/trailer bearing Nos.AP 36U 3466/3467, driven by its driver in a rash and negligent manner with high speed, dashed against the scooter of the petitioner, as a result of which the petitioner fell down on the road and the tractor ran over his right hand causing crush injury. The petitioner was immediately shifted to the A.P. Rayons Factory Hospital, Kamalapur and thereafter he was shifted to Jaya Hospitals, Hanamkonda for expert treatment. During the course of treatment in Jaya Hospital, Hanamkonda, the right hand of the petitioner was amputated above the elbow on 06-03- 2004. Therefore, he filed the O.P. claiming compensation of Rs.16,00,000/-. 3. During the course of trial, on behalf of the petitioner, PWs.1 to 4 were examined and Exs.A-1 to A-19 were marked. On behalf of the respondents, none were examined, however, Ex.B-1, certificate of insurance, was marked. 4. The Tribunal, after considering the evidence adduced by both sides, came to the conclusion that both the petitioner and the driver of the tractor are responsible for the accident and fixed the percentage of negligence at 75% for the driver of the tractor and 25% for the petitioner, and accordingly, allowed the petition in part with proportionate costs granting the compensation of Rs.8,30,250/- under all the heads with interest @ 7.5 % per annum from the date of petition till the date of deposit. Aggrieved by the same, the Insurance Company preferred the appeal and the petitioner filed the cross objections. 5. The learned counsel appearing for the appellant-Insurance Company mainly urged that the Tribunal, while coming to the conclusion that there is contributory negligence, fastened the liability on the insurance company at 75% which is erroneous and in the case of contributory negligence, the percentage of negligence shall be 50:50 and the compensation has to be granted accordingly, but the Tribunal has fastened the liability at 75% on the insurance company. He further urged that the compensation granted by the Tribunal is highly excessive and exorbitant, and further the interest granted @ 7.5% per annum is also excessive and it is to be scaled down to 6% per annum as per the decision of the Apex Court in SARLA VARMA v. DTC [1]. 6. The learned counsel appearing for the petitioner-cross objector mainly urged that the accident occurred only due to the rash and negligent driving of the driver of the offending vehicle, but the Tribunal, without there being any evidence, erroneously came to the conclusion that there is contributory negligence on the part of the petitioner and accordingly apportioned the percentage of negligence at 75% for the driver of the tractor and 25% for the petitioner and therefore, the finding of the Tribunal with regard to contributory negligence is not sustainable and the compensation awarded by the Tribunal is too meagre and it is liable to be enhanced. 7. Now the point for consideration is whether the order of the Tribunal dated 16-03-2007 is sustainable? 8. Though PW-1 placed reliance on Exs.A-1 and A-2, the Tribunal, while taking into consideration the evidence of PW-1 in his cross-examination that he has seen the accident at a distance of 10 yards, held that there is contributory negligence on the part of the petitioner also and accordingly fixed the contributory negligence at 25% against the petitioner and 75% against the Insurance Company. In a case of this nature where the accident occurred due to negligence of the drivers of both the vehicles, the version of the witness (injured) assumes much importance. On perusal of the impugned order, the Tribunal well discussed the evidence on record and came to the conclusion that the driver of the offending tractor was negligent and fixed his liability at 75% while fixing the liability of the petitioner at 25% mainly taking into consideration the evidence of PW-1. Therefore, the finding of the Tribunal, while taking into consideration the evidence of PW-1, that the accident occurred due to the negligence of both the drivers cannot be faulted. 9. Learned counsel appearing for the petitioner-cross objector drawn the attention of this Court to the decision reported in SHAMSHUDDIN AND ANOTHER v. ATTA ANARUDDIN [2] and mainly urged that in the present case the Tribunal assessed the contributory negligence of both the drivers and fixed the percentage of contributory negligence. 10. Placing reliance on the principles laid down in SHAMSHUDDIN’s case (2 supra), the finding of the Tribunal fixing the percentage of contributory negligence, while taking into consideration the evidence of PW-1, in my view, is sustainable, and accordingly, the same is upheld. 11. It is admitted that the petitioner is a civil contractor and he had substantial earnings. He also filed the income tax returns for the assessment years 2001-02, 2002-03 and 2003-04 and having gone through the said returns, the average earnings of the petitioner works out to Rs.70,000/- per annum. The disability as spoken by PW-2 is 90% which is amputation of right hand. As seen from the disability certificate, Ex.A-19, the age of the petitioner was 43 years at the time of accident and he lost his right hand which will certainly cause much hindrance in his day to day life, and further it is a disfiguration to the body. Any amount of compensation will not compensate the suffering on the disfigurement of the petitioner. Therefore, while assessing the disability of the petitioner at 90%, his earnings come to Rs.63,000/- per annum as correctly held by the Tribunal and the same was computed with multiplier ‘15’. However, admittedly, the petitioner was aged about 43 years at the time of accident and as per the principles laid down in SARLA VARMA’s case (1 supra), the multiplier relevant to the age of the petitioner is ‘14’. Therefore, after applying multiplier ‘14’ to the annual loss of earnings, the total loss of earnings of the petitioner comes to Rs.8,82,000/- (Rs.63,000/- X 14). 12. The petitioner also filed medical bills for an amount of Rs.1,12,000/-. As seen from the impugned order, there was no discussion about the inducement of those bills and the Tribunal straight away granted Rs.1,12,000/- towards medical bills in lump sum and therefore, the same is reduced to Rs.75,000/-. The finding of the Tribunal granting Rs.50,000/- towards pain and suffering is sustainable. 13. In view of the above findings, the petitioner can be awarded an amount of Rs.10,07,000/-. But, however, as there is 25% negligence on his part, 25% has to be deducted from Rs.10,07,000/- and after deducting the same, the total compensation to which the petitioner is entitled to comes to Rs.7,55,250/-(Rs.10,07,000/- – Rs.2,51,750/-). However, the rate of interest granted by the Tribunal at 7.5% per annum is reduced to 6% per annum from the date of petition till the date of realization. 14. Accordingly, the M.A.C.M.A. filed by the Insurance Company is partly allowed and the Cross Objections are dismissed. No order as to costs. ________________ K.S. APPA RAO, J Date:24-06-2011 YCR [1] (2009) 6 SCC 121 [2] 2006(5) ALD 50