THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR M.A.C.M.A No.3968 of 2009 and M.A.C.M.A(SR) No.35826 of 2010 Common Judgment: Since both these appeals arise out of the same award dated 16.07.2009 passed in O.P. No.233 of 2008 on the file of the Motor Vehicles Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad, they are being disposed of by this common judgment. MACMA No.3968 of 2009 is filed by the IFFCO – TOKIO General Insurance Company, represented by its General Manager challenging the quantum of compensation and whereas MACMA (SR) No.35826 of 2010 is filed by the claimant seeking enhancement of compensation. The parties hereinafter will be referred to as they are arrayed before the Tribunal for the sake of convenience. The brief facts of the case are as follows. On 25.05.2007 at about 5.00 PM while the claimant was proceeding on his motor cycle the offending auto trolley bearing No. AP 28X 7070 being driven by its driver in a rash and negligent manner came and dashed against the motor cycle. As a result of which, the claimant sustained fracture to the upper part of left femur and also sustained other grievous injuries. He was shifted to hospital. He was operated. It is the case of the claimant that he was hale and healthy and aged about 20 years, working as driver-cum-owner of the auto trolley and earning Rs.4,000/- per month as on the date of accident. Contending that he sustained permanent disability and has lost his earnings and that he had spent huge amount towards medical expenses, he claimed total compensation of Rs.4,20,000/-. The first respondent is the owner of the vehicle and the second respondent is the insurance company with which the auto trolley was insured. The first respondent remained ex parte. The second respondent filed counter and denied the material averments made by the claimant. The Tribunal framed the following issues. 1. Whether the petitioner sustained injuries in the accident on 25.05.2007 due to rash and negligent driving of auto trolley bearing No. AP 28X 7070? 2. Whether the petitioner is entitled to any compensation? if so, from whom? 3. To what relief? On behalf of the claimant, the claimant himself was examined as PW.1 and Dr. N.B. Chary was examined as PW.2 and one P. Venkatesh was examined as PW.3 and Exs.A1 to A9 were marked. On behalf of the insurance company none were examined, but copy of insurance policy was marked as Ex.B1. Ex.X1 - Case sheet was marked through the Tribunal. The Tribunal, on appreciation of oral and documentary evidence, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the auto trolley. Since the said issue is not in dispute, there is no need to discuss about the same any further. The Tribunal, considering the evidence of the doctor PW.2 and Ex.A3 –injury certificate, Ex.A8 – bunch of medical bills and Ex.A6 - disability certificate, awarded an amount of Rs.1,50,000/- i.e., Rs.75,000/- to each grievous injury (Rs.75,000 x 2 = Rs.1,50,000/-) besides compensation for other heads i.e., pain and suffering. The Tribunal also awarded Rs.90,000/- towards medical expenses including future medical expenses and Rs.20,000/- towards loss of earnings, thus in all Rs.2,60,000/- was awarded to the claimant. Aggrieved by the said award, these two appeals have been filed by the insurance company as well as by the claimant. Sri T. Mahender Rao, learned counsel for the insurance company, submitted that as the claimant sustained only one grievous injury, granting of Rs.1,50,000/- for two grievous injuries is not correct and that there is no material showing requirement of any future medical expenses and therefore awarding of Rs.2,60,000/- compensation is on higher side. It is also submitted that unless the author of the documents is examined or any person connected with the documents are examined, the recitals of documents cannot be said to be proved. Thus, the main submission of Sri Mahender Rao is that mere marking of documents through the claimant does not amount to proof of documents. In support of his contention, he has relied on a decision reported in United India Insurance Company Limited, Hyderabad v. Mohd. Khaj Rasool Sayyed[1]. On the other hand, Sri K. Hari Mohan Reddy, learned counsel for the claimant submitted that the claimant was a young boy of 20 years. He was owner-cum-driver of the auto and that he sustained permanent disability and now he cannot drive the auto and thereby he has lost his earning capacity. It is further submitted that the Tribunal ought to have taken into consideration the percentage of disability sustained by the claimant resulting in functional disability and ought to have calculated the income by applying the multiplier method. It is also his contention that it is not the number of injuries that has to be considered, but physical disability resulting in functional disability should be considered. It is also his submission that the Tribunal ought to have taken the income of the claimant at Rs.2400/- per month and ought to have awarded at least an amount of Rs.50,000/- towards the diminishing marriage prospects and loss of amenities of life. Since the quantum of compensation alone is in question, the point that arises for consideration in these two appeals is what is the just and reasonable compensation that can be awarded to the claimant? As seen from Ex.X1 case sheet the claimant sustained comminuted fracture of shaft left femur. He was admitted in Sujatha hospital on 31.05.2007 and discharged on 21.06.2007. He was operated on 01.06.2007. The claimant has been examined as PW.1. He has categorically deposed that he sustained injuries including fractures. According to PW.1, he was shifted to Relief Hospitals, Katedan and from there to Gandhi Hospital, Secunderabad, and then to Sujatha Hospital, Nagole X Road, Hyderabad and that he was treated as inpatient from 31.05.2007 to 21.06.2007 and was operated on 01.06.2007. According to him, Dr. N.B. Chary, M.S. Ortho (PW.2) treated him and assessed the disability. It is elicited in the cross- examination of PW.1 that he was treated as inpatient in Gandhi Hospital for about six days and that he has not filed any medical records from Gandhi hospital. PW.1 has categorically deposed that he sustained disability and he cannot sit and squat of long distances and he has been limping. According to PW.2 - Dr. N.B. Chary, he is working as Assistant Professor of Orthopedics in Gandhi Hospital and also a Consultant in Sujatha Hospital, Nagole. He speaks about the injuries sustained by the claimant and about the operation done on the claimant. According to PW.2, the claimant sustained lacerated wound of 3 x 1 x 1 cm on upper part of the left thigh, resulting in tenderness and abnormal mobility and deformity. According to this doctor PW.1 even after operation came for regular follow up treatment as advised by him. He further deposed that he has advised physiotherapy for the claimant for stiffness of left knee joint. He has categorically deposed that in spite of treatment the claimant cannot seat cross legged and there is shortening of one inch and stiffness of left knee joint resulting in limping and that the claimant cannot lift heavy weights. According to PW.2, the claimant sustained partial and permanent disability and he had estimated the disability at 25%. We have to see whether the physical disability results in functional disability. The claimant is an auto driver. When he cannot seat cross legged and sustained shortening of one inch stiffness of left knee joint and cannot lift heavy weights, it may not be possible for PW.1 to run the auto as previously. Therefore, the percentage of disability assessed by the doctor may be less, but the functional disability may be more. For example, in case of a Carpenter if his right hand is amputated he will be unfit for carpentry work. Similarly, in case of a Mason and agricultural coolie, if one hand or leg is amputated, practically they will not be in a position to do any work. Considering the nature of job, functional disability sustained has to be assessed. In this case, considering the nature of job of the claimant, I consider it just and reasonable to take the functional disability of the claimant at 50%. According to the claimant, he was working as an auto driver and earning Rs.4,000/- per month. I consider it just and reasonable to take the income of the claimant at Rs.3,000/- per month. When functional disability is taken at 50% the loss of earnings of the claimant comes to Rs.1500/- per month and annual loss of earnings comes to Rs.18000/-. The appropriate multiplier for the age group of 20 is ‘18’. If the same is applied, the total loss of earnings comes to Rs.3,24,000/- (18000 x 18 = 3,24,000). According to PW.1, he incurred Rs.85,000/- towards medical expenses. It is not the case of the insurance company that any objection was taken at the time of marking of the medical bills. More over, the claimant has examined PW.3. According to PW.3, he is working as billing incharge in Sujatha hospital, Nagole, and he has categorically deposed that the final bill of PW.1 amounting to Rs.58,950/- under Ex.A8 was issued from their hospital. Ex.X1 is the case sheet from the Gandhi hospital, which is a government hospital. There cannot be any doubt about the genuineness of Ex.X1. Unless the objection with regard to marking of documents is taken at the initial stage and the recitals of the documents are in dispute the contention of the learned counsel for the insurance company cannot be accepted. Nothing prevented the insurance company from taking steps in getting the claimant examined by any competent orthopedic surgeon to asses his disability. The claimant has filed number of documents including x- rays. The x-rays when thoroughly examined reveal mal-union of fractures. It is not the case of the insurance company that they had appointed an investigating officer who visited those hospitals and enquired with those hospitals and found that the documents produced by the claimant are not genuine. It is settled law that the strict niceties of technicalities of CPC and the Evidence Act need not be applied while dealing with the compensation cases under the Act or Workmen’s Compensation Act. In view of the same, I am of the view that the contention of the learned counsel for the insurance company cannot be accepted. So, in the circumstances, I consider it just and reasonable to award Rs.60,000/- towards medical expenses. As far as the future medical expenses are concerned, the doctor estimated the future medical expenses between Rs.25,000/- and Rs.35,000/-, therefore, I consider it just and reasonable to award Rs.25,000/- towards future medical expenses. Considering the nature of injuries and the operation undergone on the claimant an amount of Rs.20,000/- is awarded towards pain and suffering. Similarly, I consider it just and reasonable to award Rs.5,000/- towards transport charges, Rs.5,000/- towards attendant charges, Rs.10,000/- towards loss of amenities of life, Rs.5,000/- towards extra nourishment and Rs.10,000/- towards loss of expectation of life. Thus, in all the claimant is entitled to Rs.4,64,000/-. However, since the claimant has claimed only Rs.4,20,000/-, which also appears to be just and reasonable, I am of the view that the ends of justice would be met if an amount of Rs.4,20,000/- is awarded as total compensation and accordingly the same is awarded to the claimant. Since the rate of interest awarded by the Tribunal is at 7.5%, and the same appears to be just and reasonable, I confirm the same. However, the enhanced compensation shall carry interest at 6% p.a., till the date of realization. The claimant is entitled to receive 50% of the compensation amount and the remaining 50% amount shall be kept in FDR in any nationalized bank for a period of seven (7) years. Accordingly, the MACMA(SR) No.35826 of 2010 filed by the claimant is allowed and the MACMA No.3968 of 2009 filed by the insurance company is dismissed. However, in the circumstances, no costs. ______________________ B. CHANDRA KUMAR, J. Date: 30th April 2011 Nsr [1] 2003 (5) ALD 162