IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTYSECOND DAY OF MARCH TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.329 of 2004 Between: Dr. R.N. Prasad .. Appellant AND Shaik Sajid and another .. Respondents JUDGMENT: The appeal is directed against the award dated 26-05-2003 in O.P.No.1443 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal-cum-Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad. The appellant was proceeding on Matador van bearing No.AP-28-T-2016 of his company on 26-09-1999 at about 5.20 P.M. when the lorry No.AP-25-T-957 dashed against the van near Chinnathokatta bridge, Bowenpally, due to which the appellant sustained fracture to the right leg and left ankle and other severe injuries all over the body. The lorry was driven rashly and negligently and Bowenpally Police registered Crime No.205 of 1999. The appellant was working as General Manager in Swan Vacuum Systems Limited, Jubilee Hills, Hyderabad, for a monthly salary of Rs.18,000/- at the age of 42 years and he claimed to have spent more than Rs.2,00,000/- for treatment. Hence, he claimed a compensation of Rs.5,00,000/- from the owner of the lorry and its insurer. While the owner of the lorry remained ex parte before the Tribunal, the insurer filed a counter denying the allegations of the claimant about the accident and the injuries and also putting him to strict proof of the lorry driver having a valid and effective driving licence. The contributory negligence on the part of the van driver resulted in the accident and hence, the owner and insurer of the van are also necessary parties. The compensation claimed was excessive and hence, the insurer desired the claim to be negatived. The insurer also obtained permission under Section 170 of the Motor Vehicles Act in I.A.No.496 of 2003. The Tribunal framed issues about the appellant sustaining injuries in the accident due to the rash and negligent driving of the lorry, the entitlement of the appellant to compensation and the relief to which he is entitled. During the course of enquiry, the Tribunal examined PWs.1 and 2 and marked Exs.A.1 to A.12 and B.1. The Tribunal rendered the impugned award, firstly accepting the evidence of PW.1-the injured, corroborated by Ex.A.1-First Information Report and Ex.A.2-Charge sheet. The Tribunal concluded that the uncontroverted evidence of PW.1 and the unchallenged contents of Exs.A.1 and A.2 proved that the rash and negligent driving of the lorry by its driver resulted in the accident. The Tribunal, in assessing the quantum of compensation to which the appellant is entitled from both the respondents, referred to the evidence of PW.1-the injured and PW.2-the doctor, who treated him and came to the conclusion that the evidence of PWs.1 and 2 in this regard was also not contradicted by the contesting insurer and it is proved that the appellant sustained fractures of both the bones of right leg, mandible, left calcanium (cakcaneum), loss of incisor teeth, involvement of his facial nerve and abrasions over the head, face, leg and foot. The Tribunal also accepted the evidence of PW.2 about the appellant sustaining paralysis of his right jaw due to involvement of a nerve resulting from the fracture of mandible and permanent discomfort of loss of senses on the left side of the face with difficulty in holding food or water in the mouth and swallowing the same. Though there is no certification of the percentage of permanent disability, the claims of PWs.1 and 2 were accepted by the Tribunal concerning the consequences of the injuries suffered in spite of treatment. The Tribunal considered that grant of Rs.50,000/- towards pain and suffering towards three fractures and four simple injuries will be just, while the expenditure incurred as per the bills filed also has to be reimbursed to a tune of Rs.57,516/-. Though Ex.A.11-Salary certificate was accepted by the Tribunal, still only the basic salary was taken as the criteria for awarding Rs.30,000/- towards loss of income for three months. The Tribunal also considered it appropriate to award Rs.1000/- towards transport for five months during the period of treatment and Rs.2,000/- towards extra nourishment. The Tribunal also considered it appropriate to award Rs.60,000/- towards permanent disability. The ownership of the vehicle with the 1st respondent and the subsisting insurance of the vehicle with the 2nd respondent having been probablised by Ex.B.1-Insurance policy, the Tribunal made both the respondents jointly and severally liable for the total compensation of Rs.2,00,516/- with interest at 9% p.a. from the date of petition till the date of realisation and proportionate costs. The claimant was aggrieved by the meagre compensation awarded and contended in this appeal that the permanent disability suffered by him as deposed by PW.2 was not adequately compensated and there was no reason not to accept the salary certificate filed by him. Hence, he sought for grant of balance of compensation claimed by him. Sri C. Vikram Chandra, learned counsel for the appellant and Sri V. Sambasiva Rao, learned counsel for the 2nd respondent-insurer are heard and the 1st respondent-owner of the lorry remained unrepresented before this Court also. The ownership of the lorry with the 1st respondent and its subsisting insurance with the 2nd respondent by the date of accident are not in dispute. The conclusion of the Tribunal about the rash and negligent driving of the lorry being the cause for the accident remained unchallenged by any party. Therefore, both the respondents are jointly and severally liable to compensate the injured-appellant justly and adequately for the injuries suffered and the consequences that ensued due to the accident. Therefore, it is only the quantum of compensation that has arisen for adjudication in this appeal. Insofar as the medical expenses are concerned, whatever actual medical expenses were shown to have been incurred by the appellant, they were directed to be reimbursed by the Tribunal and there is no other evidence on record to add any more amount to the compensation payable under that head. Insofar as the loss of income is concerned, the Tribunal had reason to believe on the evidence that the appellant sustained loss of earnings at least for three months. The Tribunal also accepted Ex.A.11-Salary certificate in spite of the objection about the non- examination of anybody connected with the employer and when it found Ex.A.11 to be genuine, no acceptable reason can be stated to have been expressed for taking the income of the appellant only at Rs.10,000/- per month for granting Rs.30,000/- towards loss of income for three months. In view of conclusion on Ex.A.11-Salary certificate by the Tribunal and absence of any challenge to such conclusion, the balance of Rs.24,000/- also ought to be awarded towards loss of income. Coming to the amount granted towards transport to hospital and extra nourishment at a total of Rs.3,000/-, the Tribunal itself noted that the course of treatment undergone by the appellant was for a period of five months. The positive evidence of PWs.1 and 2 showed that even after discharge of the appellant from the hospital, he was forced to continue his contact with the doctor for treatment even later and the expenses, which would have been incurred towards extra nourishment, transport, attendant charges, damage to clothing and other inevitable expenses involved in the course of prolonged treatment undergone by the appellant would have been much more and in the absence of any specific evidence, the same can be assessed to be about Rs.9,000/- in total. While an element of guess and estimate are inevitable in such assessment deducting Rs.3,000/- already granted, a sum of Rs.6,000/- has to be added to the compensation under these heads. Insofar as pain and suffering are concerned, the injuries accepted by the Tribunal to have been proved involved four fractures apart from loss of teeth and involvement of facial paralysis apart from simple injuries over the head, face, leg and foot. Even if these grievous injuries were to be compensated at Rs.10,000/- each, a further sum of Rs.10,000/- ought to be paid to the claimant under the head of pain and suffering even assuming that the simple injuries also stood compensated under that head by the over all amount of Rs.60,000/-. Coming to the amount granted towards permanent disability, it is true that there was no permanent disability certificate filed by the appellant, but his own evidence on oath before the Tribunal more than satisfactorily presented the permanent consequences left with him for the rest of his life due to the injuries suffered in the accident. His claims, even if they were considered to be interested, are sufficiently and independently corroborated by the medical expert as PW.2 and the paralysis of right jaw, the loss of senses on the left side of the face and difficulty in holding the food and water in the mouth and swallowing them are disadvantages of such a magnitude, which cannot be monetarily assessed adequately in terms of any quantified sums. However, as some quantification has to be made, if the admitted monthly income of the appellant by the time of accident were to be taken as the basis and if total loss of earnings were to happen to him at the age of 42 years, on application of multiplier of 14, the total loss of future earning capacity would have been about Rs.30,24,000/-. If the permanent consequences left physically to the appellant were to be assessed to be resulting in effecting about 5% of the functioning of the whole body or functioning with reference to his avocation, even then he would have been entitled to about Rs.1,50,000/- under this head. The mere fact that no percentage of permanent disability had been certified should not have distorted the Tribunal from arriving at a reasonable compensation under this head and therefore, under the head of permanent disability, the claimant can be considered to be entitled to a further sum of Rs.90,000/-. Therefore, considering the enhancement to be granted in respect of pain and suffering, the miscellaneous expenses including transport, extra nourishment etc., the loss of income and permanent disability, the compensation already awarded should be enhanced by a further sum of Rs.1,30,000/- to meet the need for grant of just and adequate compensation. In view of the length of time for which the interest has to be paid on the enhanced portion of the compensation, the same can be restricted to 6% p.a., while proportionate costs of course shall follow suit. In the result, the award dated 26-05-2003 in O.P.No.1443 of 1999 on the file of the Chairman, Motor Accidents Claims Tribunal- cum-Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, is modified by awarding a further compensation of Rs.1,30,000/- with interest at 6% p.a. thereon from the date of petition till the date of realisation and proportionate costs, in addition to the compensation already awarded by the Tribunal under the impugned award and the appeal is allowed in part accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 22-03-2011 Ksn