IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A No.555 of 2008 Dated:10-08-2011 Between: Cheekati Mogli ….Appellant. And V.Chinnaiah and another. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.ANo.555 of 2008 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the award and decree passed in M.V.O.P.No.862 of 2005 by the II Additional Chief Judge, City Civil Court, Hyderabad at the instance of the claimant for enhancement of the compensation. The claimant has filed the above said application claiming compensation of Rs.20,00,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 16.10.2004. On that day while the petitioner was going by walk at Yapal Mandammari and when he reached near the Mandal Revenue Office, a lorry bearing No.AP 26U 6649 came in a rash and negligent manner in high speed from behind and dashed against him, as a result of which, he sustained injuries and he took treatment in the local hospital and also in Osmania General Hospital, Hyderabad. The 2nd respondent, who is the insurer, opposed the said petition contending that the compensation claimed by the petitioner is highly excessive and the accident was occurred due to gross negligence on the part of the petitioner himself. The lower Court has framed the following issues: (1) Whether the accident took place on 16.10.2004 at about 4.30 P.M. due to rash and negligent driving of a lorry bearing No.AP 26U 6649 by its driver? (2) Whether the petitioner is entitled to claim compensation for the injuries sustained by him? If so, to what amount and from whom? (3) To what relief? The petitioner examined himself as P.W.1 and also examined the Doctor as P.W.2 and the Welfare Officer of Singareni Collieries Company Limited as P.W.3 and got marked Exs.A.1 to A.12. No oral evidence was adduced on behalf of the respondent No.2, but Ex.B.1 copy of insurance policy was marked. The lower tribunal by taking into consideration of the said oral and documentary evidence held that the accident was occurred due to rash and negligent driving of the driver of the lorry and awarded compensation of Rs.70,000/- with subsequent interest at 7.5% P.A. from the date of filing of the petition till the date of realization. The claimant having not satisfied with the award of compensation of Rs.70,000/- has filed the present appeal for enhancement of compensation. Learned Counsel for the appellant has pleaded that the claimant has sustained Grade-III compound comminuted supra condylar fracture of left femur with vascular injury and close comminuted fracture of left tibia and amputation was done above knee on the left side and the medical board issued disability certificate assessing the disability at 60% and as the claimant is working as Trammer in the Singareni Collieries Company Limited and earning Rs.14,500/- per month, the compensation has to be fixed by taking into consideration of the 60% disability suffered by him and the claimant is also entitled for compensation towards transportation to the hospital, extra nourishment, attendant charges and in all the claimant is entitled for Rs.20,00,000/- as claimed by him. The learned counsel for the Insurance Company has pleaded that the lower Tribunal has rightly disbelieved the disability certificate and the salary certificate produced by the petitioner and thereby awarded the compensation for the individual injuries sustained by him and also the amputation of the left leg and the said compensation awarded by the lower Tribunal is sufficient for the injuries sustained by the claimant and the claimant is not entitled for any enhancement of the compensation. The petitioner has produced Ex.A.5 disability certificate, Ex.A.6 medical certificate, Ex.A.7 bunch of medical bills, Ex.A.8 letter of the Singareni Collieries Company Limited terminating the services of P.W.1 dated 12.08.2005 and Ex.A.10 pay slip. The lower Tribunal by observing that the claimant was paid Rs.1,05,800/- towards gratuity, Rs.50,000/- under APLIG, Rs.2,900/- towards family benefit scheme, Rs.3,25,515/- towards CMPF and Rs.3,000/- per month towards monthly monetary compensation and Rs.2,424/- per month towards Coal Man’s pension and he also reimbursed with the medical expenses and there is likelihood of a job being provided to the claimant’s son, felt that the ends of justice would be met by granting only a reasonable amount of compensation. The lower Tribunal further observed that Ex.A.10 is fabricated sheet of paper, because the income and the deductions have all been added up to show that P.W.1 getting salary of Rs.14,458.43 Ps. Claimant examined P.W.2 Doctor, who treated him. According to P.W.2, the claimant was admitted in Osmania General Hospital on 17.10.2004 with Grade-3 compound comminuted supra condylar fracture on left femur with vascular injury and close comminuted fracture of left tibia and above the knee amputation on left side was done on 21.10.2004 and he was discharged on 29.11.2004. Ex.A.5 is the disability certificate issued by the Medical Board of Osmania General Hospital, in which he is one of the members. They assessed the permanent disability of the claimant is 60%. In the cross- examination, he has stated that surgery was performed by the members of his unit and he do not know the name of the doctor, who performed the amputation as he do not have the record. The lower Tribunal has discarded the evidence of P.W.2 on the ground that P.W.2 is not able to give the name of the Doctor, who performed the amputation. Apart from the evidence of P.W.2, the petitioner has got marked Ex.A.3 Medico Legal certificate issued by the Medical Officer, Government Area Hospital, Mandamarri, therein also the injuries referred to by the P.W.2 were mentioned. Therefore, the evidence of P.W.2 cannot be discarded simply because he is not aware of the doctor, who conducted amputation. As stated by him he is the head of the unit in Osmania General Hospital and the claimant is admitted in his unit and at the time of admission he has found the said injuries and as the record is not available with him, he might not able to give the name of the doctor, who conducted amputation. Further, no suggestion was put to P.W.2 that no amputation was done to the left leg of the claimant. Therefore, Ex.A.5 disability certificate issued by the Medical Board, in which P.W.2 was one of the member, has to be accepted. Moreover, in view of the injuries sustained by the petitioner, his services were terminated by the Singareni Collieries Company Limited as per Ex.A.8. The said termination Order was issued by the Singareni Collieries Company Limited basing on the medical certificate issued by their Medical Officer. Therefore, the petitioner could able to establish that he has sustained amputation to the left leg above knee and as per Ex.A.5 disability certificate; he has suffered 60% disability due to the injuries sustained by him in the said accident. Therefore, the compensation has to be awarded to the petitioner basing on the disability suffered by him. According to P.W.1, he is drawing salary of Rs.14,000/- per month and he has examined P.W.3 Welfare Officer to establish his employment in Singareni Collieries Company Limited. According to P.W.3, the petitioner was drawing Rs.11,000/- per month. The petitioner got marked Ex.A.10, the salary slip. The lower Tribunal has disbelieved the said salary slip Ex.A.10 by making an observation that the same is fabricated sheet of paper. Ex.A.10 is a computerized pay slip issued by the Singareni Collieries Company Limited and as per the said pay slip, he is drawing Rs.10,230/- per month after deductions. Therefore, the monthly salary of the deceased can be taken as Rs.10,230/- per month and he is getting annual income of Rs.1,22,760/-. Since the petitioner sustained 60% disability, his loss of earnings would be Rs.73,656/- per year. With regard to the age of the petitioner, it was mentioned as ‘35’ in the claim petition, but whereas in the charge sheet Ex.A.2 the age of the claimant is shown as ‘40’ years and in Ex.A.3 medico legal certificate, the age of the petitioner is shown as ‘45’ years and in Ex.A.4 discharge summary issued by the Osmania General Hospital, the age of the petitioner is shown as ‘35’ years and in the disability certificate Ex.A.5 the age of the petitioner is shown as ‘42’ years. Thus, in view of the various ages mentioned in the above said documents, the age of the petitioner can be taken between 36 to 40 years. As per the decision rendered in “Smt. Sarla Verma and others v. Delhi Transport Corporation and another (2009 AIR SCW 4992)”, the appropriate multiplier that is applicable for the age group of 36 to 40 is ‘15’. Thus, the loss of earnings sustained by the petitioner due to the injuries sustained by him would be Rs.73,656 X 15 = Rs.11,04,840/-. The lower Tribunal has awarded an amount of Rs.25,000/- towards shock, pain and loss of amenities in life, but no amount was awarded to him towards nutritious food. Hence he can be awarded another sum of Rs.5,000/- towards nutritious food. Thus, in all the petitioner is entitled for Rs.11,34,840/-. In the result, the appeal is partly allowed with costs and the compensation of Rs.70,000/- awarded by the lower Tribunal is enhanced to Rs.11,34,840/- with interest at 6% P.A. from the date of filing of the petition till the date of realization. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:10-08-2011 Ksp