HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.3089 of 2002 JUDGMENT: The appeal is directed against the award passed in O.P.No.545 of 1992 on the file of the Motor Accidents Claims Tribunal-cum- Additional District Judge, Nizamabad, dated 10.05.1995. The factual back ground for the appeal is that on 21.09.1992 at about 11.30 A.M. while the appellant was going by walk from Gandhi Chowk, near Popular Radio House, Nizamabad, lorry bearing No.MTV 3673 driven rashly and negligently in high speed came from behind without blowing horn and dashed him. The front wheel of the lorry ran over the left foot of the appellant, who suffered head injuries and other injuries also. He was shifted to Government Headquarters Hospital, Nizamabad where he was operated and he suffered a permanent disability. He was earning Rs.3,000/- per month as a labourer and hence he sought for a compensation of Rs.1,00,000/-. The owner of the vehicle questioned the claims of the appellant and submitted that as the vehicle was insured with the 2nd respondent, the compensation was payable by it. The 2nd respondent/insurer denied any rashness and negligence on the part of the lorry driver and put the claimant to strict proof of all his claims. The compensation claimed was contested as excessive. The Tribunal framed issues on the responsibility for the accident, and entitlement of the claimant to compensation. The Tribunal examined PWs 1 to 3 and marked Exs.A.1 to A.4 and B.1 to B.3 during the enquiry. The Tribunal rendered the impugned award firstly accepting the evidence of the injured as PW.1 and the eye-witness PW.2 corroborated by Ex.A.1 copy of the First Information Report and Ex.B.1 copy of charge sheet and concluded that the accident occurred due to the rash and negligent driving of the driver of the lorry. The Tribunal also noted from Exs.A.2 and B.3 that there was a valid and subsisting insurance and the wound certificate Ex.B.2 was noted as showing the treatment of the claimant from 21.09.1992 to 07.10.1992 for the fracture of the left foot. The Tribunal also referred to the evidence of PW.3, the doctor who certified the claimant to have suffered 40% partial disability but did not act on his evidence as he was not the doctor who treated the claimant and as there was no evidence of the claimant suffering any disability due to the injury. Considering all the facts, the Tribunal considered it just to award Rs.10,000/- towards the grievous injury, Rs.5,000/- towards medical expenses, extra nourishment and attendants and Rs.5,000/- towards pain and suffering and on the total compensation of Rs.20,000/-, the Tribunal awarded interest at 12% per annum and proportionate costs. The claimant preferred the present appeal contending that the disability ought to have been considered 100% in the light of the injury suffered and the occupation of the injured and compensation awarded under all the heads was too low. The appeal against the 1st respondent/the owner of the offending lorry was dismissed for default by an order of this Court dated 24.04.2008. Heard Sri U.Pratap Rao, learned counsel representing Sri Kota Subba Rao, learned counsel for the appellant and Sri Bajrang Singh Thakur, learned Standing Counsel for the second respondent/insurer. As the owner or the insurer of the lorry did not challenge the impugned award in any manner by way of any cross appeal or cross objections, the findings of the Tribunal about the happening of the accident, the responsibility of the lorry driver for the accident, the existence of the insurance policy and the joint and several liability of the owner and the insurer to justly and adequately compensate the claimant are to be considered as having become final. Sri Bajrang Singh Thakur, learned Standing Counsel for the 2nd respondent contended that the appeal is no longer maintainable after the dismissal of the same for default against the owner of the offending vehicle/insurer. But the learned counsel for the appellant has brought to notice the decision of this Court reported in Meka Chakra Rao v Yelubandi Babu Rao @ Reddemma and others[1], which is binding on this Court. The objection against the maintainability of the appeal as of now, therefore, cannot be considered. That leaves only the question of the quantum of compensation to which the claimant is entitled. The claimant as PW.1 claimed to be aged 40 years earning Rs.100/- per day by doing cooli work and he claimed to have sustained two fractures in his left leg and injuries to his right leg and head in the accident. He also claimed that he lost his sight and is feeling giddiness due to the head injury. He claimed to be an inpatient for 15 days and in his cross-examination, he stated that he was 4 or 5 years old at the time of independence of the Country. PW.2 the eye-witness to the accident also claimed that PW.1 was an inpatient for 20 days and he was aged 38 years and was earning Rs.100/- per day. He claimed to be earning similarly but PW.2 did not speak about any giddiness or loss of sight suffered by PW.1 even after treatment and he did not state about any consequences of the injuries leaving any permanent total or partial disability on the claimant. PW.3 the Medical Officer, who certified 40% disability in Ex.A.3 spoke about two healed fractures in the left leg and he was not the person who treated the claimant. He tried to claim that the disability was the combined percentage of the injuries with 5% plus or minus. The evidence of PW.3 as noted by the Tribunal did not appear to provide any justification for presuming the claimant to have suffered 40% permanent partial disability. The doctor did not say that the fractures were not healed nor did he refer to any giddiness or loss of sight as claimed by PW.1. While there was no evidence on behalf of the respondent, the just and adequate compensation has to be determined on the above material. If the claimant had suffered two fractures/two grievous injuries, the compensation for pain and suffering even if the minimum as per the second schedule to the Motor Vehicles Act is adopted, it should have been Rs.5,000/- for each injury and Rs.10,000/- in total. The pain and suffering have to be, therefore, compensated with another Rs.5,000/-, while the loss of earnings of the petitioner/claimant due to the fractures would have been in ordinary course for a minimum period of six weeks and even if he was a labourer, the loss of earnings should have been atleast Rs.2,500/- at that time for the said period. Apart from the loss of earnings, the expenses towards attendants, extra nourishment, medicines not supplied by the hospital and other incidental expenses also would have been much more than Rs.5,000/- granted and a further sum of Rs.2,500/- can be granted under that head. While the two grievous injuries were compensated by Rs.10,000/-, the compensation has to be therefore enhanced atleast by Rs.10,000/- more. While the enhanced compensation has to carry interest and proportionate costs, in view of the length of time for which such interest has to be paid, the same can be confined to 6% per annum and the impugned award has to be modified accordingly. Therefore, the award in O.P.No.545 of 1992 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Nizamabad dated 10.05.1995 is modified by granting a further compensation of Rs.10,000/- with interest at 6% per annum from the date of petition till the date of realization and proportionate costs in addition to the compensation already awarded by the Tribunal. The appeal is allowed in part accordingly without costs. _____________________ G.BHAVANI PRASAD,J 11th November, 2010. PNV [1] 2001(1) ALT 495 (DB)