IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD MONDAY, THE TWENTH SIXTH [26TH] DAY OF OCTOBER, TWO THOUSAND, NINE Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.2422 of 1998 Between: Syed Afzal … Appellant And: Mirza Mohd. Asalam Beg & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.2422 of 1998 JUDGMENT: This appeal is directed against the order dated 24.06.1998 in OP No.331 of 1995 on the file of the Motor Accidents Claims Tribunal cum III Additional Chief Judge, City Civil Court, Hyderabad, wherein, the claim of the appellant was allowed in part awarding compensation of Rs.16,500/- with interest at 12% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the 2nd respondent. None appeared for the first respondent. Perused the record. 3. The appellant/claimant filed claim application before the Tribunal claiming compensation of Rs.80,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 02.03.1995. According to the appellant, on that day, while he was proceeding in a cycle from Tadbund towards Hasan nagar at about 12.30 p.m., a lorry bearing No.AP 13 T 1938 came from Sivarampally side with high speed in a rash and negligent manner and dashed against the claimant near Hasan nagar cross roads and he suffered fracture to the right hand. Bahadurpura PS registered a case against the driver of the lorry in Cr.No.41 of 1995. The claimant pleads that he was a student but was also doing private service and earning Rs.2000/- per month. Due to the injury received in the accident, he became partially disabled. 4. The owner of the lorry remained ex-parte. The appellant/insurer filed counter opposing the claim and denying their liability to pay the compensation. 5. Before the Tribunal, PWs.1 and 2 were examined and Exs.A.1 to A.8 were marked on behalf of the claimant. No oral evidence was adduced by the insurer, but Exs.B.1 and B.2 were marked. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry bearing No. AP 13 T 1938. The Tribunal further held that the claimant is entitled for a total compensation of Rs.16,500/- with interest at 12% per annum from the date of petition. Not satisfied with the award, the claimant preferred the present appeal. 7. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the lorry and that the 2nd respondent being insurer of the lorry, is also jointly and severally liable to pay the compensation has become final, as no appeal was filed by the 2nd respondent/insurance company. The only question that arises for consideration in this appeal is, whether the appellant is entitled for any enhanced compensation and if so to what extent? 8. The evidence on record shows that the claimant sustained fracture on right hand and he was admitted in Osmania General Hospital on 2.3.1995 and was discharged on 13.3.1995 and during the said period on 08.03.1995 he was operated upon and rods were inserted. The Tribunal awarded a sum of Rs.5,000/- towards pain and suffering, which is just and reasonable, as even as per the II Schedule of the Motor Vehicles Act provides compensation of Rs.5,000/- for grievous injury. The Tribunal also granted a sum of Rs.1000/- towards medical expenses and Rs.500/- towards extra nourishment, which are also considered as just and reasonable. However, the Tribunal awarded Rs.10,000/- towards loss of future earning capacity, though, there is no evidence to show that the claimant was employed anywhere or was earning anything and the injury has left any permanent disability. Even according to the claimant, he was a student, but he claimed that he was also doing some private service. However, the details of the said private service is not disclosed and none connecting with such service is examined to show that the claimant was in fact was employed anywhere and was earning any amount, the question of sustaining any loss of earning capacity does not arise, especially, when there is no evidence to the effect that the injury has left any permanent disability. No doubt, PW.2-doctor testified that there is permanent disability of 2 to 3%, but according to him, the said disability was on account of scar that was left due to the operation. In the cross-examination, PW.2 admitted that as on that day, there was no disability. The claimant has not filed any certificate issued by any competent medical expert to show that there was any mal-union of fracture bone or that there was any permanent disability on account of the deformity. In the absence of any such evidence and in view of the evidence of PW.2 to the effect that there is no disability as such, the claim of the appellant for compensation towards loss of earning capacity on account of permanent disability does not, in fact, arise. However, as the Tribunal has granted a sum of Rs.10,000/- towards loss of future earning capacity and the same is not questioned by the insurer by way of any appeal, the said amount of Rs.10,000/- is retained by adjusting the same towards future medical expenses, in view of the evidence of PW.2 to the effect that the claimant has to undergo further surgery for the removal of the rods. 9. Having regard to the facts and circumstances, there are absolutely no valid or justifiable grounds for enhancement of the compensation awarded by the Tribunal. 10. In the result, the appeal is dismissed. ______________________ G.V.SEETHAPATHY, J Date: 26.10.2009 bss