IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.2577 and 2652 of 2004 C.M.A.No.2577 of 2004 Between: Y. Niranjani .. Appellant AND Vilayat Ali Khan and another .. Respondents C.M.A.No.2652 of 2004 Between: National Insurance Company Limited, represented by its Divisional Manager, Hyderabad .. Appellant AND Y. Niranjani and another .. Respondents COMMON JUDGMENT: These appeals are directed against the award in O.P.No.84 of 2000 dated 10-10-2003 on the file of the Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad. The factual background is that the injured claimant claimed to be earning Rs.3,000/- per month as tailor at the age of 30 years and when she and her daughter were travelling on her husband’s scooter on 14-5-1999 at about 2.15 P.M., lorry No.AP-11-U-3747, driven rashly and negligently at high speed, dashed against the scooter near BRO cross roads, Thirmulghery. The claimant suffered amputation of toes of the right leg and multiple injuries all over the body for which she was treated as inpatient at Gandhi Hospital for two weeks and was still undergoing treatment at a cost of more than Rs.1,50,000/-. The permanent disability in spite of three plastic surgeries left her handicapped and hence, a compensation of Rs.3,00,000/- was claimed from the owner and insurer of the lorry. While the owner of the lorry remained ex parte, the insurer contested the claim denying the allegations of the claimant, the valid driving licence of the lorry driver, the alleged permanent disability and other claims and contended that the compensation claimed is excessive. The Tribunal framed issues about the manner of the accident and the entitlement of the claimant to compensation and examined PW.1 and Exs.A.1 to A.8 during the course of enquiry. The Tribunal rendered the impugned award accepting the evidence of PW.1, the injured, corroborated by Ex.A.1-First Information Report and Ex.A.2-Charge sheet about the accident occurring due to the rash and negligent driving of the lorry. The Tribunal, in assessing the quantum of compensation, referred to the claims of PW.1 about the crush injury of the right foot resulting in degloving, amputation of great toe and second toe of right foot, compound fracture of BBG left, right foot ankle injury and other multiple injuries all over the body. The Tribunal noted that Ex.A.3- Medico Legal Certificate issued by Gandhi General Hospital, Secunderabad showed that PW.1 received a crush injury on the right foot and deformity of left leg. The Tribunal further noted Ex.A.4 showing the nature of treatment at Gandhi Hospital and Ex.A.5-medical certificate issued by the Regional Medical Board estimating the permanent partial disability at 30%. The further treatment undergone by the injured at a Private Hospital as stated by Ex.A.6-prescriptions, the bunch of medical bills-Ex.A.7 etc., was also referred to including Ex.A.8-X-rays and the Tribunal observed that the claimant will not be in a position to carryout any tailoring work because of amputation of toes and fracture injury to left leg and is handicapped to carryout her day to day household chores. Therefore, assessing the loss of earning capacity at 100% on an estimate of Rs.1500/- as against Rs.3,000/- claimed by the claimant, the Tribunal considered it just to assess the loss of earnings at Rs.3,06,000/-, apart from Rs.21,000/- towards medical expenses, further amounts towards extra nourishment, transport charges, pain and suffering and shock due to amputation. Therefore, considering Rs.3,00,000/- claimed by the claimant to be more than reasonable, the Tribunal awarded the same with interest at 9% p.a. from the date of petition till the date of realization. The insurer challenged the same in C.M.A.No.2652 of 2004 stating that the insurer is not liable to pay excessive compensation awarded by taking the income at Rs.1500/- and the disability at 100%. The disability should have been calculated only to the extent of the disability certified at 30% and therefore, the insurer desired the impugned award to be reversed. The claimant challenged the award in C.M.A.No.2577 of 2004 stating that though she claimed only Rs.3,00,000/-, the Tribunal having arrived at just compensation of Rs.3,27,000/- should have awarded the same. Sri Ramachandra Reddy Gadi, learned standing counsel for the insurer and Sri J. Srinivasarao, learned counsel for the claimant are heard. The appellant had not challenged the conclusion of the Tribunal about the responsibility of the lorry driver for the accident with his rash and negligent driving, the ownership of the lorry with the 1st respondent to the claim and the subsisting insurance for the vehicle with the 2nd respondent to the claim, and therefore, the entitlement of the injured claimant for just and adequate compensation jointly and severally from both the respondents to the claim cannot be in question. It is only the quantum of compensation to which the claimant is entitled that is under adjudication herein. It is true that insofar as the probable income of the claimant from tailoring is concerned, the available evidence was only the oral claim of PW.1 herself claiming Rs.3,000/- per month. When the Tribunal assessed such probable income at Rs.1500/- per month, the Tribunal also had no explicable basis for the same. The Minimum wages payable to a tailor under the Minimum Wages Act at about the relevant time in respect of Handloom Weaving Establishments was Rs.1663/- being total basic wage payable per month under G.O.Ms.No.58, dated 22-10-1998. The Government Order itself also permits payment of higher rate of wages or receipt of other allowances. Therefore, the probable income, which the injured might be earning as a tailor at the relevant time, can be taken to be about Rs.1700/- per month and her age at 30 years by the time of accident being not in dispute, the appropriate multiplier applicable as per Sarla Verma and others v. Delhi Transport Corporation and another[1] is 17. Coming to the loss of earning capacity due to the injuries and their consequences, a reference to the injuries suffered as per the documents on record suggests that the claimant suffered amputation of great toe and second toe of the right foot, a compound fracture in the left foot, a crush injury in the right foot ankle, injury in the right foot and other multiple injuries. The compound fracture of the left leg was claimed to have not been united in spite of surgeries and the disability certificate estimated the disability at 30%. The said disability is with reference to the amputation only and not about the further consequences of the other injuries nor was it with reference to the continued capability of the injured to carry on the profession of tailoring with the same degree of efficiency and capability as earlier. Taking an over all view of the facts and circumstances, the future loss of earning capacity can be reasonably estimated at about 50% of the probable income. Even otherwise, if it were to be estimated at 30% in tune with the disability certified by the medical expert plus the other disability due to the other injuries totalling to 50%, the loss of future earnings will come to about Rs.1,73,400/-. Proved medical expenses were to a tune of Rs.21,000/- upheld by the Tribunal apart from her entitlement to extra nourishment, transport charges etc., the total of which can be reasonably estimated at Rs.26,000/-. For amputation of two toes, a crush injury, a compound fracture ankle injury and other injuries, given the conventional sums awarded in petitions under Section 166, the compensation payable for pain and suffering and shock due to amputation, loss of future amenities of life due to amputation etc., can be reasonably rounded off to Rs.50,000/- in estimate of which of course an element of guess and estimate are inevitable. If the total compensation payable to the claimant thus comes to Rs.2,50,000/-, the interest thereon payable by the insurer should also be reasonably limited to 6% p.a. keeping in view that the insurer, who is also a custodian of public funds, has to pay such interest for more than 11 years. While the compensation already awarded is thus a little higher than what it should be, the claim of the claimant for further enhancement is no way justified on the evidence on record and the impugned award has to be modified accordingly on the above lines. Therefore, the award dated 10-10-2003 in MVOP.No.84 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad, is modified by restricting the compensation to Rs.2,50,000/- payable with interest thereon at 6% p.a. from the date of petition till the date of realization and C.M.A.No.2652 of 2004 is allowed in part and C.M.A.No.2577 of 2004 is dismissed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 10-10-2011 Ksn [1] ACJ 2009 1298