IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF November TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE G.BHAVANI PRASAD MA.CMA.No.286 of 2005 Between: G.Somanath @ Someswar. … Appellant And G.Ramasubbaiah and others … Respondents This Court made the following: HON’BLE SRI JUSTICE G.BHAVANI PRASAD MA.CMA.No.286 of 2005 ORDER:- This appeal is directed against the award in M.V.O.P.No.337 of 2000 on the file of Motor Accidents Claims Tribunal- cum-I Additional District Judge, Chittor, dated 09.12.2004. 2. The factual background for the appeal is that the appellant was working as a cleaner at the age of 23 years and he was travelling on the lorry bearing No.AP-02U-0159 owned by the 3rd respondent on 03.06.2000 as a cleaner. The lorry bearing No.AP-16X-1519 owned by the 1st respondent and insured with the 2nd respondent, which was driven rashly and negligently in high speed, dashed against the lorry in which the appellant was travelling near Rangareddi Poultry Farm on Chittoor Palamaner road. The appellant sustained severe injuries and was shifted to the Government Hospital, Chittoor for treatment. Yadamari police registered crime No. 31/2000 against the driver of the 1st respondent’s lorry. 3/4th of the right foot of the appellant was amputated and the fracture to the left thigh made movements of the left leg restricted. The appellant had to limp through out his life and is unable to walk or move without an attendant. He was unmarried, had a driving licence and had bright future, which was destroyed. The prospects of marriage were lost and if his frustration, loss of amenities of life etc., are considered apart from the huge medical expenses etc., he is entitled to a compensation of Rs.6,00,000/- under various heads. More so, he was earning not less than Rs.3,500/- per month, which he was contributing entirely to his parents. 3. The 1st and 2nd respondents put the claimant to strict proof of his allegations and claimed that in spite of best efforts of the driver of the 1st respondent’s lorry, the accident occurred due to the negligence of the driver of the 3rd respondent’s lorry. The claimant did not file any disability certificate from a medical board and his exaggerated claims cannot be accepted. 4. The 3rd respondent contested the claim contending that the claimant was only a coolie in his lorry attending to the work of the cleaner at times. The 3rd respondent was paying his wages regularly. The other allegations of the petitioner/claimant were admitted and the 3rd respondent desired the compensation to be granted against the 4th respondent with whom his lorry was insured. 5. The 4th respondent/insurer of the lorry of the 3rd respondent, contested the claim contending that the 1st respondent’s driver was rash and negligent resulting in prosecution by the police and hence, the 4th respondent is not liable to pay any compensation. The 4th respondent sought for protection under Sections 169 and 170 of the Motor Vehicles Act, 1988, (for short, “the M.V.Act”) and alleged its liability to be confined to the terms and conditions of the insurance policy. 6. On such pleadings, the Tribunal framed issues about the responsibility for the accident and the entitlement of the appellant for the compensation. 7. During the enquiry, P.Ws.1 to 3 and R.W.1 were examined and Exs.A1 to A10 and Ex.X1 were marked. 8. The Tribunal rendered the impugned award firstly concluding that any composite negligence of the drivers of both the vehicles was not proved and the evidence of the injured as P.W.1 and the 3rd respondent as R.W.1 corroborated by Ex.A1-first information report, Ex.A5-charge sheet in C.C.No.309 of 2000 and Ex.A6-Judgment in C.C.No.309 of 2000, proved that the negligence of the driver of the 1st respondent’s lorry was the reason for the accident. While assessing the quantum of compensation, the Tribunal first noted that the 1st respondent’s lorry was validly insured with the 2nd respondent making both the 1st and 2nd respondents jointly and severally liable to compensate the appellant while the 3rd and 4th respondents are not liable to pay any compensation. The Tribunal analysed the evidence of the injured as P.W.1 and the owner of the lorry/3rd respondent as R.W.1 and concluded that the claimant was working as a labourer on the lorry of the 3rd respondent though he might be at times cleaning the lorry. In the absence of proof of his engagement as cleaner or the payment of wages as claimed, the Tribunal assessed the monthly income of the claimant to be probably Rs.50/- per day for 20 days in a month. Considering the evidence of P.Ws.2 and 3 the Doctors, concerning the injuries and their consequences and the claims of the injured P.W.1 himself, the Tribunal noted that P.W.3 stated that P.W.1 can do some work though not as a cleaner. The Tribunal considered the claimant to be entitled to Rs.10,000/- each for the two fractures, Rs.5,691.70 ps. towards the amounts covered by Ex.A7-medical bills, Rs.2,000/- towards loss of income for two months, Rs.1,500/- per month towards attendant charges and Rs.500/- towards transport charges. The permanent disability sustained by amputation of 3/4th of the right foot was considered to be entitling him to a compensation of Rs.50,000/- towards pain, trauma, loss of amenites etc., granting another Rs.3,800/- towards extra nourishment and miscellaneous expenses. The Tribunal rounded off the compensation to Rs.85,000/- payable with interest at 9% per annum and proportionate costs. It gave further directions about the disbursement of the said compensation. 9. The claimant challenges the said award herein contending that the disability should have been considered 100% with reference to his occupation and the total loss of earnings of Rs.3,185/- per month should have resulted in the grant of entire compensation as claimed. The specific loss of income was for 3½ months and not 2 months and the general and special damages were not awarded as per law. Hence, the claimant desired the impugned award to be reversed. 10. Sri J.M.Naidu, learned counsel for the appellant and Sri T.Mahender Rao, learned counsel for the 2nd respondent and Sri Ravi Shankar Jandhyala, learned counsel for the 4th respondent are heard. While the 3rd and 4th respondents were absolved from any liability by the Tribunal itself, the claimant did not desire any liability to be fixed on them even in this appeal and to that extent the impugned award has to be considered as final. 11. Insofar as the finding of the Tribunal about the responsibility of the driver of the 1st respondent’s lorry for the accident is concerned, none of the parties challenged the same and so was the finding about the subsistence of a valid insurance policy for the vehicle of the 1st respondent with the 2nd respondent. If so, the joint and several liability of the 1st and 2nd respondents to justly and adequately compensate the claimant has to be considered to be not in dispute. 12. What remains as the only point for consideration in this appeal is the quantum of compensation to which the claimant is entitled? 13. The injuries suffered by the appellant and their consequences are also not seriously in dispute and the claimant suffered a crush injury to the right foot due to which 3/4th of the right foot was amputated and the fracture on the left thigh was claimed to have resulted in restricted movements of the left leg also. The claimant had examined two doctors to probablise the adverse consequences suffered by him. P.W.3 stated about the amputation of the right foot and mal united fracture of the left thigh resulting in a permanent disability of 65% as certified in Ex.A3. The evidence of the other Doctor as P.W.2 does not contradict the evidence of P.W.3 and the mere fact that P.W.3 examined P.W.1 long after the accident will not detract from the evidentiary value of his claim as presumed by the Tribunal. When the physical impact of the injuries is evident from amputation of the right foot and mal-united fractures of the left thigh, which were not attributed to any other incident or to any other cause other than the accident, the Tribunal without appropriately assessing the impact of the permanent disability, awarded a lumpsum amount of Rs.50,000/- towards physical pain, trauma, agony, mental pain, suffering and loss of amenities and the like, which cannot be considered justified or in proportion to the loss suffered by the claimant. 14. Sri J.M.Naidu, learned counsel for the appellant referred to the Division Bench decision in C.M.A.No.3202 of 2002, dated 22.10.2009, with reference to the relevant precedents on the aspect. The Division Bench concluded that what is to be assessed is whether the injured is in a position to do some work, which he was doing at the time of accident and what is the percentage of disability sustained by him i.e., the physical disability and functional disability. It again said that the loss of earning capacity has to be determined considering the nature of work the claimant was doing prior to the date of the accident, even in the absence of medical evidence. Keeping these principles in view, it is to be noted that on the evidence before it, the Tribunal came to the conclusion that though the occupation of the claimant was described as lorry cleaner and cultivation in the claim petition, there was no reference by the claimant himself to any agricultural income. 15. The prospects of P.W.1 becoming a driver due to his having a driving licence might be real, but admittedly the occupation was not that of a driver by the time of the accident. Future imponderables could not have been the basis for assessing the compensation. The claim of the injured and the lorry owner about the occupation of the injured P.W.1 was analysed in great detail by the Tribunal to differ from which there is no reason and the Tribunal concluded on such reasonable analysis that by the date of the accident, the claimant was working on the lorry only as a labourer, though now and then he might be cleaning the lorry. If the claimant was only a coolie/labourer cleaning the lorry now and then, the 3/4th amputation of the right foot or the restricted movements of the left leg cannot probably be considered as imposing a cent percent disability on the claimant for pursuing the same occupation. Though the physical discomfort, which the claimant suffers in continuing to carry on such an avocation was there to see, such physical discomfort and disability could not have been assessed at more than 65% functional disability vis-à-vis his occupation in the light of the evidence of P.W.3 and his certificate about the percentage of disability with reference to the disabled limbs alone. 16. If so, in the absence of any definite formulae under the M.V.Act, for assessment of compensation under such circumstances, the minimum wages payable to an unskilled labourer at the relevant time and assessment of compensation with reference to the scientific method adopted by the Workmen’s Compensation Act, 1923 (for short, “the Act”) may be of help. It is brought to notice by Sri T.Mahender Rao, learned counsel that in the period between 13.06.1999 and 26.07.2000, the minimum wages payable to such a labourer under the age group of 40 was Rs.675/- basic wage and Rs.900/- variable Dearness Allowance, coming to Rs.1575/- per month. While Sri T.Mahender Rao, vehemently opposed enhancement of compensation even by a small sum, a reference to schedule-I of the Act shows that amputation of leg below middle thigh to below knee was specified to result in 60% loss of earning capacity. While the injured/claimant was aged 23 years by the time of accident, the factor applicable to him for working out lump sum equivalent of compensation in case of permanent disability under schedule–IV of the Act, will be 219.95. If so, 60% of the minimum wages at Rs.945/- multiplied by the said factor would lead to a sum of Rs.2,07,852.75 ps., as lump sum compensation payable to the claimant, if the Act were to be beneficially adopted. Such compensation of course, will not take care of extra nourishment and miscellaneous expenses compensated at Rs.3,800/-, transport charges at Rs.500/-, attendant’s charges at Rs.3,000/-, medical bills at Rs.5,691.70 ps., compensation for pain and suffering for the two fractures at Rs.10,000/- each and loss of income at Rs.2,000/- as assessed by the Tribunal. The said total sum of Rs.35,000/- should be awarded in addition to the compensation above assessed, which can be rounded of to Rs.2,08,000/-. The total compensation payable justly and adequately to the claimant will be thus Rs.2,43,000/-. Sri J.M.Naidu, learned counsel referred to Rs.4,081/- with reference to the minimum wages for motor transportation workers, but they came into effect from 29.03.2001 subsequent to the accident. While the compensation awarded by the Tribunal should be thus enhanced, in view of the distance of time for which interest has to be paid on the enhanced portion of the compensation, such future interest can be restricted to 6% per anum while proportionate costs be awarded on the enhanced compensation. Therefore, the award, dated 09.12.2004, in M.V.O.P.No.337 of 2000 on the file of Motor Accidents claims Tribunal-cum-I Additional District Judge, Chittoor is modified by granting a further compensation of Rs.1,58,000/- with interest thereon 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 impugned award and no further directions need be given at this distance of time on the disbursement of the compensation. The appeal is allowed, accordingly, in part, without costs. ______________________ G.BHAVANI PRASAD, J 19th November 2010 lmv