HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.1875 of 2002 JUDGMENT: The appeal is directed against the award passed in O.P.1010 of 1994 on the file of the Motor Accidents claims Tribunal-cum- III Additional Chief Judge, City Civil Court, Hyderabad, dated 09.04.1997. The factual back ground for the appeal is that the appellant along with his brother-in-law and son was going on Scooter No.ADL 4128 from Nacharam to Bagh Amberpet on 31.10.1994 at 11.00 PM and near Habsiguda cross road, lorry No. AP 10 T 2002 driven rashly and negligently in high speed, dashed the scooter from behind. The appellant driving the scooter, his brother-in-law and minor son fell on the road, sustained severe injuries and were shifted to Gandhi hospital, Secunderabad. The appellant claimed to be running Sai Santosh Sweet Bhandar at Nacharam Cross road, aged 38 years at the time of the accident and earning Rs.2,500/- per month. He suffered fractures in both the legs and a head injury and subsequent to the filing of the claim for Rs.1,00,000/-, the claim was enhanced to Rs.2,00,000/- after amputation of the left leg above the knee. The appellant claimed Rs.15000/- towards loss of earnings, Rs.5,000/- towards transport, Rs.40,000/- towards extra nourishment and medicines, Rs.10,000/- towards damage to the scooter, Rs.40,000/- towards pain and suffering and Rs.80,000/- towards continuing permanent disability, loss of pleasures and amenities of life and loss of future earning power. The first respondent, who is the owner of the lorry remained ex parte, while the insurer contested the claim contending that there was contributory negligence on the part of the driver of the scooter and hence the insurer is not liable to pay any compensation. While putting the claimant to strict proof of all his allegations, the insurer claimed that the lorry driver has to be proved to be having a valid driving licence and desired the claim for excessive compensation to be negatived in the light of the violation of the terms and conditions of the insurance policy. The insurer further claimed that any claim for damage to the scooter cannot exceed Rs.6,000/- under the statute. The Tribunal framed issues on the responsibility for the accident, the truth of the accident and entitlement of the claimant to compensation. The Tribunal examined PWs 1 and 2 and marked Exs.A.1 to A.9 and B.1 during the enquiry. The Tribunal rendered the impugned award referring to the evidence of the injured claimant as PW.1 corroborated by an independent eye-witness PW.2 and also Ex.A.1 copy of the First Information Report and Ex.A.2 copy of the charge sheet. The uncontroverted oral and documentary evidence was held to have established that the accident took place due to the rash and negligent driving by the driver of the offending lorry. The Tribunal further noted that Ex.B.1 proved a valid and subsisting insurance for the lorry in force on the date of the accident, while Ex.A.9 proved that the injured claimant had a valid driving licence. The Tribunal further held that from the physical appearance of PW.1, he appeared to be 45 years in age, though Exs.A.1 and A.2 and PW.1 claimed the age by the time of the accident to be 40 years. The Tribunal also noted that Exs.A.6 and A.7 established that PW.1 was running a Sweet Shop at Nacharam from November, 1993, but in the absence of evidence to prove the actual income from the shop, assessed such income at Rs.1500/- per month. The amputation of the left leg above the knee was held proved by Ex.A.3 photograph and Ex.A.5 medical certificate. On such evidence, the Tribunal firstly concluded that PW.1 was in the hospital from 01.04.1994 to 31.12.1994 as per Ex.A.4. While PW.1 claimed that he was treated for three months in Gandhi hospital, the Tribunal awarded Rs.4,500/- towards loss of income for three months. Towards transport, Tribunal awarded Rs.2,000/-, in the absence of any documentary corroboration for PW.1 and in view of 91 medical bills in Ex.A.8 for Rs.20,906.70ps., the Tribunal awarded Rs.21,000/- towards extra nourishment and medical expenses. As there was no proof of the actual damage caused to the scooter, the Tribunal did not award any amount under that head, while it considered grant of Rs.10,000/- towards pain and suffering and loss of amenities of life. For the permanent disability of 70% as spoken to by PW.2 and certified in Ex.A.5, the Tribunal considered it just to award Rs.40,000/- towards loss of future income. On the total compensation of Rs.77,500/-, the Tribunal awarded 12% interest and proportionate costs and gave directions for disbursement of the compensation. The claimant challenged the said award before this Court contending that the Tribunal should have granted Rs.15,000/- towards loss of past earnings, Rs.5,000/- towards transportation charges, Rs.40,000/- towards extra nourishment and medical expenses and Rs.40,000/-towards treatment, apart from Rs.90,000/- towards pain and suffering and disability and Rs.10,000/- towards damage to the scooter. The appeal was dismissed for default against the first respondent/owner of the vehicle by an order of this Court dated 06.02.2002. Heard Sri U.Pratap Rao, learned counsel representing Sri Kota Subba Rao, learned counsel for the appellant and Sri T.Ramulu, learned Standing Counsel for the second respondent/insurer. While the owner or insurer of the lorry did not challenge the impugned award in any manner by way of any cross appeal or cross objections, the findings of the Tribunal about the happening of the accident, the rash and negligent driving of the lorry being the cause for the accident, the existence of a subsisting valid insurance policy by the time of the accident and the joint and several liability of the owner and insurer of the lorry to justly and adequately compensate the claimant, therefore, have become final. The only point that is left for consideration in this appeal is the quantum of compensation to which the claimant is entitled. The discharge certificate Ex.A.4 shows that the claimant was stated to have been hospitalized since the accident till amputation of the left leg whenever needed, while PW.1 claimed that he was treated as inpatient in Gandhi Hospital for three months. PW.1 would not have been, in the natural and ordinary course of circumstances, able to resume his business in sweets immediately on discharge from the hospital. The nature of the injuries suffered and amputation undergone by the claimant can be safely presumed to have disabled him from attending to his business atleast for a period of four months and even at the rate of Rs.1,500/- per month as assessed by the Tribunal, he should have been granted loss of earnings for four months or Rs.6,000/- in total. While it is true that there is no documentary evidence to corroborate PW.1 about the transport expenses, in respect of medical expenses and extra nourishment, 91 medical bills in Ex.A.8 themselves were to a tune of Rs.20,901-70ps. and the Tribunal did not award practically any sum towards extra nourishment when it awarded only Rs.21,000/- under this head. At least for a period of two months of hospitalization, the Tribunal should have awarded a minimum of Rs.100/- per day or Rs.6,000/- for the entire period towards extra nourishment. Insofar as damage to the scooter is concerned, except the oral claims of PW.1, there is no proof of actual damage and there was no reference to whether the scooter was insured or whether any amount was recovered from the insurer. The Tribunal cannot be considered unjustified in not granting any compensation for the same. However, in respect of pain and suffering and loss of amenities of life, the Tribunal awarded only Rs.10,000/-. But the claimant suffered fractures in both legs and head injury and by amputation of the left leg above the knee, he suffered a permanent disability of 70% according to Ex.A.5 certificate. Ex.A.3 photograph and the photograph affixed on Ex.A.5 show the permanent adverse physical impact left on the claimant due to the accident and for the suffering he had undergone due to the accident till healing of the wounds and due to the amputation as well as the permanent loss of enjoyment of amenities of life for the rest of his life, atleast Rs.20,000/- should have been awarded towards pain and suffering and loss of amenities of life. In assessing the compensation for permanent disability/loss of future earning power, the Tribunal awarded a lumpsum amount of Rs.40,000/- without explaining the basis adopted for grant of such a lumpsum amount. Ex.A.5 shows that insofar as the left leg is concerned, the claimant suffered 70% permanent disability and the Tribunal itself noted that the claimant cannot run his business as effectively as before, after the accident and the amputation. Even if the assessed monthly income of Rs.1500/- as per the Tribunal were to be taken as the basis and if the appropriate multiplier of ‘14’ as per Sarla Verma and others v Delhi Transport Corporation and another[1] were to be applied, the loss of future earnings, if it was total, would be Rs.2,52,000/-. If 70% of permanent disability in respect of the left leg were to be approximately estimated to result in 30% functional disability in respect of the whole body, the probable loss of future earnings will be about Rs.75,000/-. Therefore, the claimant has to be awarded a further compensation of Rs.35,000/- under this head. Therefore, in addition to the compensation of Rs.77,500/- already awarded by the Tribunal, the claimant is entitled to a minimum further compensation of Rs.62,500/- under all the heads. While it may be noted that the assessment of the monthly income from the sweets business by the Tribunal was very conservative, keeping in view the distance of time and the liability of insurer to pay proportionate costs and interest on the enhanced portion of the compensation, the re-assessment is based only on such estimate as made by the Tribunal and future interest will also be hence confined to 6% per annum. The impugned award has to be modified accordingly. Therefore, the award in O.P.1010 of 1994 on the file of the Motor Accidents claims Tribunal-cum- III Additional Chief Judge, City Civil Court, Hyderabad, dated 09.04.1997 is modified by awarding a further compensation of Rs.62,500/- with interest at 6% per annum from the date of the petition till the date of realization and proportionate costs in addition to the compensation already awarded by the impugned award and there is no need for issuance of any directions concerning the disbursement of the compensation at this distance of time. The appeal is allowed accordingly in part. No costs. _____________________ G.BHAVANI PRASAD,J 11th November, 2010. PNV [1] 2009 ACJ,1298