HONOURABLE SRI JUSTICE NOUSHAD ALI Dated 9-7-2010 M.A.C.M.A. No.31 of 2006 Between: S.Bablu. …Petitioner. And: A.P. State Road Transport Corporation, represented by its General Manager, R.T.C. Cross Road, Musheerabad, Hyderabad and another. …Respondents. HONOURABLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.31 of 2006 JUDGMENT: This is an appeal filed by the appellant-claimant seeking enhancement of compensation in the Award in O.P.No.2109/2002 dated 15-10-2005 on the file of the Fast Track Court, X Additional Chief Judge, City Civil Court, Hyderabad, whereunder the Tribunal has awarded Rs.1,27,500/- as compensation in favour of the appellant-claimant. 2. On 13-5-2002, the claimant was carrying a load of mangos in the auto trolley bearing registration No. A.P. 12 T 6505 from Kothapet fruit market to Puranapool, Hyderabad. When the vehicle reached Jam Bagh Kali Khabar, the bus of the respondent/A.P.S.R.T.C. bearing registration No. A.P. 10 Z 9715 hit the auto from behind, as a result of which, the auto over-turned causing grievous injuries to the claimant. He was hospitalized from 13-5-2002 to 3-7-2002. He, therefore, filed O.P. seeking a compensation of Rs.3,06,600/- for the injuries sustained by him in the accident. 3. Respondent-A.P.S.R.T.C. contested the claim. 4. The Tribunal formulated the following issues: 1. Whether the claimant received injuries in the accident on 13-5-2002 at about 12-45 P.M., due to rash and negligent driving of the RTC Bus bearing No. AP 10 Z 9715 by its driver? 2. Whether claimant is entitled to claim compensation from the respondents? If so, to what amount and from whom? 3. To what relief? 5. On consideration of the evidence, the Tribunal estimated the disability at 40% and awarded Rs.1,08,000/- towards permanent disability, Rs.12,500/- towards fracture injuries, Rs.2,500/- towards pain and suffering, Rs.2,500/- towards loss of earnings, Rs.1,000/- towards extra nourishment and Rs.1,000/- towards transportation, in all awarded Rs.1,27,500/-. 6. Not satisfied with the claim, and contending that the appellant is entitled for more, the claimant has filed this appeal. 7. Heard the learned counsel for both the parties. 8. Since the appeal is filed at the instance of the claimant for enhancement of compensation, it is not necessary to examine the issue relating to rash and negligence. 9. The claimant examined himself as P.W.1 and further examined P.Ws.2 to 4. P.Ws.3 and 4 are the doctors who provided medical treatment to the claimant. Exs.A.1 to A.10 were marked on behalf of the claimant and Ex.X.1 Case Sheet was also marked. The respondent did not adduce any evidence. 10. P.W.1 in his evidence stated that he sustained hipbone right leg fracture and other internal injuries. He also suffered injuries to vital organs which incapacitated him from performing marital obligations. He was admitted in Osmania General Hospital. He underwent orthopedic Surgery and was inpatient from 13-5-2002 to 3.7.2002. On account of the injuries sustained by him, he is disabled from driving the auto which is the only source of his livelihood. He further stated that he used to earn Rs.200/- per day excluding auto rental payable to the owner. He further stated that he suffered 40% disability as certified by the Medical Board of Osmania General Hospital under Ex.A.1 dated 19-8-2004. It is his evidence that he was bed ridden for four months and even after the discharge, he was availing treatment at private Nursing Home also. 11. In the cross-examination he reiterated that he is an auto driver and at the time of accident, he was actually driving the auto. He also reiterated that he was inpatient in the Osmania General Hospital. 12. P.W.2 deposed that he is also a driver like the claimant and he and the claimant took the auto trolleys on contract basis from one Joginder on a rent of Rs.140/- and he, in his evidence stated that they saved not less than Rs.200/- per day per an average and thus, the monthly income would be not less than Rs.6,000/-. 13. In the cross examination, no contradiction cold be brought out. 14. P.W.3 was the Civil Surgeon in Osmania General Hospital at the relevant point of time. He stated that Ex.A.6 is the Disability Certificate issued by the Medical Board of which he is one of the members. In his evidence, he further stated that the claimant was suffering from Post Trauma Sequela i.e., old fracture acetabulum with orthoritis of the right hip joint. It is about 40% and there is a shortening of right lower limb. In fact, in his cross-examination, he stated that the percentage on disability was arrived at in Ex.A.6 as per the Workmen Compensation Act. 15. P.W.4 is also a doctor who treated the claimant. In his evidence he stated that as per Ex.X.1, the claimant was treated in the Hospital from 13-5-2002 to 3.7.2002 as inpatient and found that there is shortening of right lower limb by 2 inches the right hip joint movements restricted. He also stated that the claimant suffered 40% disability. He further stated that the claimant would suffer increasing pain and he requires future treatment since the ankle movement is also restricted. No contradiction was brought forthwith in the cross examination. 16. From the medical evidence of P.Ws.3 and 4 and the disability certificate Ex.A.6 and Case Sheet Ex.X.1, it is evident that the claimant suffered disability as certified at 40%. The Tribunal reached the same conclusion. To this extent, there is no dispute in this appeal. 17. The Tribunal computed the pecuniary loss on the ground of disability by taking the income of the claimant at Rs.1250/- per month. As noted above, the claimant is an auto driver who used to transport the goods in the said auto trolley. According to him, he used to earn Rs.200/- per day. 18. P.W.2 who is also an auto trolley driver supported the version of the claimant that he used to ply auto and earn the said amount. 19. The Tribunal did not rely on the evidence of P.W.2 on the only ground that he is a friend of the claimant and treated him as a non-earning member. It may be noted that evidence of a witness cannot be discarded merely on the ground that he is related. In a case like the one on hand where the claimant is an auto driver, a friend is the best person to speak the profession. The respondents did not impeach the evidence of either P.W.1 or P.W.2 by adducing any rebuttal evidence. It did not examine even its driver who could have spoken whether the claimant was actually driving the auto at least at the time of the accident. No such presumption can be drawn simply because P.W.2 did not produce his driving licence. The claimant besides asserting that he is an auto driver filed his own licence as Ex.A.5 which fact was not disputed. Hence considering the totality of circumstances it has to be held that the claimant is an auto driver and an earning member. The finding contra by the Tribunal is incorrect. 20. It is true that the claimant did not produce any documentary evidence to support that he was earning Rs.200/- per day. As it is now held that he is an auto driver for this reason, it can not be presumed that he was earning a meager amount of Rs.40/- per day only. Therefore, it is reasonable to take the income of the claimant at Rs.100/- per day. At this rate, the income of the claimant per annum would be Rs.36,000/-. Since the claimant was aged 28 years, 18 multiplier is to be applied. On the said basis, the pecuniary loss for disability at 40% would come to Rs.2,59,200/-. (Rs.3600 x 18 x 40/100). Therefore, the claimant is entitled for compensation for this amount towards 40% disability. The Tribunal has already awarded amounts towards other heads. 21. In the above analysis, the compensation is enhanced from Rs.1,08,000/- to Rs.2,59,200/- towards 40% disability. The claimant is also entitled to the interest at 6% on the enhanced amount from the date of this order. The award in O.P.No.2109/2002 dated 15-10-2005 on the file of the Fast Track Court, (In the Court of X Additional Chief Judge, City Civil Court, Hyderabad) is accordingly modified. 22. Appeal is accordingly allowed. There shall be no order as to costs. __________________________ JUSTICE NOUSHAD ALI Dated 9-7-2010 Dvs HONOURABLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.31 of 2006 Dated 9-7-2010