IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH M.A.C.M.A.No.768 of 2007 Between: The New India Assurance Co.Ltd. Rep.by its Regional Office, Surya Towers, S.P.Road, Secunderabad ..... APPELLANT AND Ch.Hanman Singh and another .....RESPONDENTS The Court made the following: THE HON'BLE MR JUSTICE V.ESWARAIAH M.A.C.M.A.No.768 of 2007 JUDGMENT: Heard both the counsel. 2. The New India Assurance Company Limited, S.P.Road, Secunderabad filed this appeal aggrieved the order of the Special Judge for trial of offences under SC/ST (POA) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy passed in M.V.O.P.246/2005 dated 26.09.2006. 3. The 1st respondent herein is the claimant who filed the said O.P. against the 2nd respondent as well as the appellant herein. The parties hereinafter referred to as they are arrayed before the Tribunal below. 4. The OP was filed under Sec.166 of Motor Vehicles Act claiming compensation of Rs.3 lakhs for the injuries sustained by the claimant in a motor vehicle accident. It is stated that on 20.09.2004 at about 9.50 p.m. the claimant along with Srinappa started from Ameerpet to go to his residence on a Scooter No.A.P.28F-4293. At about 10 p.m. when they reached near Yellamma temple at Balkampet, Hyderabad, one Maruthi Car bearing No.AP9AG-9720 came in high speed, rash and negligent manner and dashed the Scooter, due to which the claimant who is driving the Scooter as well as the pillion rider Srinappa fell down on the road and received grievous injuries. The case of the claimant is that the accident was occurred due to the rash and negligent driving of the driver of the Car. On a complaint a case in Cr.No.796/2004 was registered under Sec.337 IPC on the file of the Sanjeevareddinagar P.S. Hyderabad against the driver of the said crime vehicle. It is stated that due to said accident, the claimant received compound fractures to both bones of his right lower leg and also received grievous injuries on other parts of the body. Immediately after the accident, the claimant was shifted to Care Hospital, Banjara Hills, Hyderabad. There the claimant got operated and fixed the rods and discharged on 05.10.2004. The claimant is still undergoing treatment and was not in a position to walk, sit and to do his normal activities. The claimant has incurred expenditure of Rs.2 lakh towards treatment. At the time of accident, it is stated that the claimant was working as Quality Checking Officer in Sreenidhi Secure Prints Private Limited and drawing a salary of Rs.5,000/-. Due to the accident, the claimant sustained permanent disability and put to loss mentally and monetarily and also he required further operation for removal of the rods. The claimant claimed compensation of Rs.3 lakh, out of Rs.3 lakh, it is stated that he has spent Rs.2 lakh for undergoing treatment. He also claimed damages for the loss of earning, pain and suffering for his permanent disability, but restricted the total claim for Rs.3 lakh alone. 5. A counter has been filed by the Assurance Company denying all the allegations made in the O.P. It is admitted that the crime vehicle is covered by insurance, but it is stated that the driver was having only the driving licence and necessary precautions have not been taken, and that the claimant has not established about the annual income as well as the particulars mentioned in Items Nos.1 to 7 of the OP and no documentary evidence is adduced to prove the particulars as mentioned in Item-8 also. Thus, it is stated that the claim of Rs.3 lakh in all respects is without any basis. 6. The Tribunal below held that the claimant sustained 30% permanent disability and loss of income. As per Ex.A7 salary certificate the deceased used to earn Rs.2,100/- p.m. and his annual income was taken into account as Rs.25,200/- and a multiplier of 17 was taken into account and the total loss was arrived at Rs.4,28,400/-, out of which the claimant is said to have been sustained 30% permanent disability, and granted 30% permanent disability amount out of Rs.4,28,400/- which comes to Rs.1,28,520/-. In addition, the Tribunal below awarded medical expenses of Rs.1,39,034/- basing on the evidence of PW 2 and Ex.A6, and admittedly out of which the ESI Hospital, Sanathnagar paid Rs.75,000/- towards medical expenses of the claimant and hence the remaining amount of Rs.64,034/- was awarded by the Tribunal below. Thus, the total compensation comes to Rs.1,92,554/- was awarded by the Tribunal below. 7. The learned counsel for the appellant submits that there is no proof of evidence in respect of 30% permanent disability and the claimant has not filed any certificate or document in proof of his contention that he has lost his job due to the accident, except saying in his petition and oral evidence that he has lost his job. As the contention of the claimant with regard to the loss of the job was disputed and in the absence of any documentary evidence adduced by the claimant to that effect, it cannot be said that the claimant has lost the job and that he has sustained 30% permanent disability. 8. The question that arises for consideration in this appeal is whether the claimant is entitled to 30% loss of disability by reason of his contention that he has lost his job. 9. The injured/claimant himself was examined as PW 1 and marked Exs.A1 to A9 in support of his claim. The officer of the appellant Assurance Company was examined as RW 1 and the owner of the car was examined as RW 2. Exs.B2 to B7 were marked through RW 2, and Ex.B1 policy was marked through RW 1. 10. It is the case of the injured/claimant/PW 1 is that while he was going along with his friend on his Scooter bearing No.AP28F-4293 and reached near Yellamma temple, Hyderabad, at 10 p.m. one Maruthi car bearing No.AP9AG-9720 came in high speed in rash and negligent manner from his backside and dashed his Scooter. Due to which, he fell down and sustained fractures to his right leg and the skin of his right leg was also damaged. He also received injuries all over his body. Thereafter, he was shifted to NIMS Hospital and on their advice, the injured was shifted to Care Hospital for better treatment. It is stated that the injured was treated as inpatient in Care Hospital from 20.09.2004 to 05.10.2004 and spent nearly Rs.2 lakh in the Care Hospital and he was not in a position to walk freely, he was unable to walk freely and unable to do regular day to day activities and he got permanent disability. At the time of accident, he was working as Quality Checking Officer in Srinidhi Secure Prints Private Limited situated at IDA Jeedimetla, Shapurnagar and he was earning more than Rs.5,000/- per month which includes his salary of Rs.2,100/-. The remaining amount is earning by way of overtime. He was removed from service after the accident and due to the accident he was not in a position to do any work. He has no other sources of income. 11. The appellant-Assurance Company cross examined PW 1. It is the case of the appellant that there is no evidence to show that the claimant was removed from service, and there is also no evidence to show that the claimant was getting more than of his salary of Rs.2,100/- by doing overtime in the company. It is stated that the owner of the vehicle claims certain medical expenses paid in favour of Care Hospital. It is the case of the owner of the vehicle that he has paid Rs.65,224/- towards medical expenses of the claimant but the same was denied by the claimant. It is stated that out of Rs.65,224/- the claimant has repaid an amount of Rs.20,000/- and hence only an amount of Rs.45,224/- is said to have been paid by the owner of the crime vehicle. 12. RW 1 is the officer of the Assurance Company and he stated that Ex.B3 is the learning licence of the wife of the owner of the vehicle and Ex.B4 is the driving licence of the owner. It is admitted that on the date of accident, the policy was in force, but it is contended that the person who is having valid licence was not accompanied the accused driver (wife of the car owner), but the case of the owner of the crime vehicle i.e.RW 2 is that he accompanied his wife at the time of accident and his wife was also having driving licence and therefore, it cannot be said that there is any violation of the terms and conditions of the policy. 13. The dispute is only between the Assurance Company and the claimant. Admittedly, no certificate either from the employer or any document showing that he was removed from service was filed. Unless the claimant establishes that he has lost his job, he is not entitled to the loss of 30% disability. As there is no other evidence to show that the claimant has lost his employment by reason of the said accident and his salary was reduced from Rs.2,100/- per month, I am of the opinion that the claimant is not entitled to any amount of compensation towards 30% of the disability as he has failed to establish that he has permanently sustained the loss of income to the extent of 30%. 14. In so far as the medical expenses incurred for the treatment of the claimant is concerned, the Court below rightly taken into account the actual bill amount of Rs.1,39,034/- and admittedly out of which an amount of Rs.75,000/- was paid by the ESI Hospital authorities on behalf of the claimant and therefore, the claimant is entitled to an amount of Rs.1,39,034/- _ Rs.75,000/- = Rs.64,034/- only. The claimant claimed compensation under the head of pain and suffering but the Tribunal below did not consider any amount towards pain and suffering though admittedly the claimant has undertaken treatment for the fracture of both bones of right leg in Care Hospital for a period of 15 days from 20.09.2004 to 05.10.2004. The claimant gave evidence in 2006 i.e. after two years of the accident. It is stated that even now the claimant is still under medical care and he is unable to walk freely and unable to do his regular activities, therefore, I am of the opinion that the claimant is entitled to compensation of Rs.35,966/- towards pain and suffering. Thus, the claimant is entitled for a total compensation of Rs.1,00,000/- towards pain and suffering and loss of amenities. 15. For the foregoing reasons, the order under impugned is set aside in respect of awarding compensation of Rs.1,28,520/- towards 30% disability by the Tribunal below. I agree with the award passed by the Tribunal below with regard to medical expenses of Rs.64,034/- In addition, the claimant is also entitled to a sum of Rs.35,966/- towards pain and suffering and loss of amenities. Thus, the claimant in total is entitled for compensation of Rs.1,00,000/- (Rupees one lakh only) with interest, as awarded by the Tribunal below. The appellant-Assurance Company is entitled to withdraw the amount over and above Rs.1,00,000/- and interest accrued thereon. 16. Accordingly, the MACMA is allowed in part to the extent as indicated above. No order as to costs. ___________________ V.ESWARAIAH,J Dated: 17.06.2010 Dsr