THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.15 of 2006 Date : 13 -08-2010 Between : Vankadhara Muralidhar .. Appellant And P.Shahabuddin Khan & Another .. Respondents This Court made the following: THE HON’BLE SRI JUSTICE NOUSHAD ALI M.A.C.M.A. No.15 of 2006 JUDGMENT: This is an appeal filed by the claimant seeking enhancement of compensation in the award in M.V.O.P.No.622 of 2002, dated 9.8.2005 on the file of III Additional District Judge, Kadapa (Fast Track Court, Kadapa) (MACT). This is a case of injuries. According to the claimant, on 24.5.2002, when he was proceeding on his T.V.S. Suzuki motorcycle to Proddutur, a jeep bearing registration No.AP 04E 4299 came in the opposite direction, driven in a rash and negligent manner and hit his vehicle, as a result of which, he sustained injuries. He was shifted to Government General Hospital, Kadapa and treated therein as an inpatient and that due to the accident, he suffered permanent disability. He therefore, filed O.P. and sought for compensation of a sum of Rs.3,00,000/-. The first respondent (owner of the jeep) remained ex parte. The second respondent-Insurance Company obtained permission under Section 170 of the Motor Vehicles Act, 1988 vide orders in I.A.No.867 of 2005, dated 20.7.2005 and contested the claim. On the basis of the pleadings, the Tribunal formulated issues (1) whether the accident occurred due to the rash and negligent driving of the said jeep; and (2) whether the claimant was entitled for compensation and if so, to what amount and from whom. The claimant examined himself as P.W.1 and examined Dr.G.Venkata Subbaiah as P.W.2 and marked Exs.A.1 (C.C. of F.I.R. in Crime No.37/2002); Ex.A.2 (C.C. of wound certificate); Ex.A.3 (C.C. of charge sheet); Ex.A.4 (disability certificate); Ex.A.5 (admission discharge certificate); Ex.A.6 (salary certificate); Ex.A.7 (xerox copy of degree marks list); Ex.A.8 (xerox copy of I.T.I. pass certificate); Ex.A.9 (bunch of medical bills); Ex.A.10 (bunch of prescriptions); Ex.A.11 (xerox copy of driving licence); Ex.A.12 (transport bills); and Ex.A.13 (x-rays). The second respondent-Insurance Company despite obtaining permission under Section 170 of the Motor Vehicles Act to contest the matter on merits, did not adduce any evidence. On a consideration of the material on record, the Tribunal after noticing the injuries suffered by the claimant, awarded Rs.15,000/- towards medicines and extra-nourishment; Rs.10,000/- towards pain and suffering; Rs.1,000/- towards transport charges; and Rs.30,000/- towards loss of earnings due to partial disability. In all, the Tribunal awarded a sum of Rs.56,000/-. Not satisfied with the said quantum of compensation, the claimant has filed the present appeal. Heard both the counsel. Since the appeal is at the instance of the claimant, the issue relating to rash and negligence need not be gone into. Therefore, the only point for consideration in this appeal is whether the claimant is entitled for enhancement of compensation in this appeal, and if so, to what amount. The amounts granted towards medical and extra-nourishment, pain and suffering and transport are not in dispute. The only dispute relates to the compensation towards the loss of earnings due to the disability suffered by the claimant. The claimant as P.W.1 stated that he was working as sales incharge/representative in a private firm Nirmala Food Products, Proddutur on a salary of Rs.5,000/- per month and also earning from business and thus, his total earnings were Rs.7,000/- per month. He suffered permanent disability and filed disability certificate, dated 2.3.2004 issued by Dr. Venkata Subhash as Ex.A.4; admission discharge certificate (Ex.A.5); bunch of medical bills (Ex.A.9); bunch of medical prescriptions (Ex.A.10); and X-rays (Ex.A.13). He also filed the salary certificate as Ex.A.6. In the cross- examination, he denied the suggestion that he is attending to works and duties as usual before the accident. He also denied the suggestion that his income as claimed was false. In order to affirm the injuries suffered, the doctor was examined as P.W.2, who in his evidence stated that he is running a hospital under the name and style of Lakshmi Venkateswara Orthopedic Trauma Care and Maternity Hospital at Kadapa. He examined the claimant on 2.3.2004 and noticed disability corresponding to the injuries described in the wound certificate (Ex.A.2). He found tenderness over the right leg upper part and one inch shortening of the right leg. As per the X-ray taken on 2.3.2004 the fracture was found to be mal-united. He therefore, issued the disability certificate (Ex.A.4) certifying the disability at 40%. In his cross-examination, he reiterated that even as per the wound certificate there were three simple injuries and one grievous injury, which is in the right leg and the fracture was cured with complications even as on date. He denied the suggestion that the injury was cured and complications did not arise. From the evidence of P.W.2 and the documentary evidence-Exs.A.2 and A.4, it is clear that the claimant suffered physical disability and as certified, the disability is 40%. The Tribunal although noticed this fact did not place reliance on the evidence of P.W.2 apparently on the ground that the disability certificate was not obtained from the Medical Board of the Government General Hospital, Kadapa. It may be mentioned that P.W.2 is the competent doctor being an Orthopedic Doctor, who examined the claimant approximately two years after the accident and still found the disability. There is no requirement that the disability should always be certified by the Medical Board. As mentioned earlier, the second respondent-Insurance Company did not adduce any evidence nor could impeach the evidence of P.W.2. It is therefore, to be held that the claimant suffered 40% disability. It is the case of the claimant that his income was Rs.7,000/- per month out of which, Rs.5,000/- was the salary from Nirmala Food Products, Proddutur and the balance amount was from the business. The learned counsel therefore, would contend that the said amount should be taken into consideration for awarding the compensation. Alternatively, the counsel would also submit that since the Tribunal observed that the earnings would be at least Rs.5,000/-, the same should be taken into consideration. On the other hand, the learned standing counsel appearing for the second respondent-Insurance Company would contend that the salary certificate (Ex.A.6) cannot be relied upon since nobody connected with the said document was examined. If the said certificate is eschewed from consideration, even as per the claimant he was earning Rs.2,000/- per month and the same alone should be taken into consideration. Ex.A.6 is stated to be a salary certificate, dated 1.1.2005, and whereas, the accident took place on 24.5.2002. The said certificate is said to have been issued by one P.Kaladhar, Managing Partner of Nirmala Food Products, Proddutur. The said author of the certificate was not examined and the claimant also did not adduce other evidence by summoning the salary register or other acquittance register. Therefore, no reliance can be placed on Ex.A.6. As rightly pointed out by the learned counsel for the second respondent-Insurance Company and also the evidence of P.W.2, de hors Ex.A.6, the claimant was earning only Rs.2,000/- per month from the business and the same, therefore, can be accepted. Taking the said income at Rs.2,000/- per month into consideration, the annual income would be Rs.24,000/-. There is no dispute that the claimant was aged 32 years at the time of accident. Therefore, as per Schedule-II to the Act, 17 multiplier should be applied. In such an event, the earning capacity would be Rs.4,08,000/-. Therefore, applying 40% disability, the loss of earning capacity would be Rs.1,63,200/- (rounded of to Rs.1,63,000/-). The Tribunal has already awarded Rs.30,000/-. It is therefore, to be held that the claimant is entitled for Rs.1,33,000/- as enhancement in this appeal. The said amount shall carry interest at 6% per annum from the date of petition till the date of realization. The award in O.P.No.622 of 2002 is modified accordingly. The appeal is allowed to the extent indicated above. There shall be no order as to costs. __________________ NOUSHAD ALI, J AUGUST 13, 2010 Tsr