IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE ELEVENTH DAY OF NOVEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.1809 of 2002 Between: Mohd. Yaseen .. Appellant AND Rahmath Khan and another .. Respondents JUDGMENT: The appeal is directed against the award dated 29-01-2002 in O.P.No.1073 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad. The factual background for the appeal is that the appellant was proceeding on Luna No.ATI 6495 on 31-05-2000 at about 00.25 A.M. and near Saleem Function Hall, A.C. Guards, Hyderabad, one Ambassador Car No.AP-12 7887, owned by the 1st respondent and insured with the 2nd respondent, driven rashly and negligently in high speed, dashed the Luna and then an auto rickshaw. The appellant claimed to have suffered a grievous head injury and fracture of right leg for which he was admitted in Osmania General Hospital, Hyderabad. Nampally Police Station was stated to have registered Crime No.83 of 2000 and the claimant, a photographer at the age of 45 years earning Rs.4,000/- per month, claimed a compensation of Rs.1,00,000/-. While the owner of the vehicle did not enter appearance, the insurer contested the claim denying the claims of the claimant and alleging contributory negligence of the claimant to have led to the accident. The driver of the 1st respondent vehicle was claimed to be having no valid driving licence. The Tribunal framed issues on the responsibility for the accident and the entitlement of the claimant to compensation. It examined PWs.1 and 2 and RW.1 and marked Exs.A.1 to A.9 and B.1 to B.3 and X.1 during enquiry. The Tribunal rendered the impugned award, firstly accepting the oral evidence of the injured-PW.1, corroborated by Ex.A.1- copy of the FIR and concluding that the accident occurred due to the rash and negligent driving of the Ambassador Car. The Tribunal also noted that even Ex.B.2-Investigation report produced by the 2nd respondent also corroborates such a conclusion. The Tribunal then noted that the claimant did not place any material to show that he owns and runs a photo studio and therefore, the Tribunal refused to grant compensation towards loss of earnings. It referred to the evidence of the doctor as PW.2 and Exs.A.4 to A.9 and Ex.X.1 as stating about the fracture of both bones of the right leg of the claimant and the claimant suffering disability of about 30%. The Tribunal noted that Ex.A.4-medical bills and Ex.A.6-medical prescriptions were also not contradicted and in the absence of any reason to suspect the case of the claimant, the Tribunal awarded Rs.50,000/- towards pain and suffering and medical expenses. However, the Tribunal refused to act on Ex.A.3-Disability Certificate as it was not issued by any Medical Board. It also accepted Ex.B.3- copy of the receipt-cum-letter written by the claimant’s son about receiving of Rs.3,000/- from the 1st respondent’s son towards medical expenses and deducted the said sum from the compensation of Rs.50,000/- and granted an award for the remaining sum of Rs.47,000/- with interest at 9% per annum and proportionate costs. The claimant, being aggrieved by the said award, filed the present appeal contending that Exs.A.3-Disability Certificate ought to have been acted upon, Rs.3,000/- ought not to have been deducted and interest should have been awarded at 12% per annum. The claimant also contended that loss of earnings, extra nourishment and compensation for permanent disability should have been assessed separately to grant the entire compensation as claimed. The appeal stood dismissed for default in respect of the 1st respondent as per the order of this Court on 25-09-2008. Heard Sri C.S. Chakravarthy, learned counsel for the appellant and Sri Bandarupalli Bhaskara Rao, learned standing counsel for the 2nd respondent-insurer. The owner or insurer of the offending vehicle did not challenge the impugned award by way of any cross-objections or cross appeal and therefore, the findings of the Tribunal about the responsibility of the Ambassador Car driver in causing the accident with his rash and negligent driving and the liability of both the respondents to the claim to justly and adequately compensate the injured-claimant jointly and severally can be considered to have become final. That leaves only the question of quantum of compensation to be awarded. The earliest version Ex.A.1-First Information Report referred to the driver of Luna moped being injured in the accident and Ex.A.3-certificate by PW.2 mentions about old comminuted fracture of both bones of right leg, united with shortening and restriction of right ankle movements. However, the nature of injuries suffered by the claimant was not specified in Ex.A.1 and Ex.A.3-Certificate on 22-10-2001 about the injuries suffered on 31- 05-2000 did not specify about the extent of shortening and the extent of restriction of right ankle movement to consider the permanent physical impairment and loss of function to be 30% of the normal functioning of the said limb. PW.2, the doctor, who issued Ex.A.3, was stating about the fracture of both bones of the right leg and fracture of occipital bone but did not specify in the evidence also about the extent of shortening and restriction of movement and he did not elaborate as to what was the basis of his estimate of disability at 30%. Even if there was 30% disability in the function of the right leg, the functional disability with reference to the whole body of the claimant and the occupation of the claimant as a photographer has to be taken into account in assessing the compensation payable, and if so, the occupation in photography cannot be considered to have been significantly effected adversely by the disability in the right leg as described by PW.2. PW.1, the claimant, tries to claim that he was unable to sit or stand properly for a long period due to the effects of the injury and the evidence of PW.2 did not straight away corroborate such a claim. That apart, the claimant also did not produce any evidence to establish the ownership and running of a photo studio by him or the probable income he was deriving from the said Photo studio. RW.1’s evidence on behalf of the 2nd respondent coupled with Ex.B.3-receipt and Ex.B.2-Investigation report show that an amount of Rs.3,000/- was received on behalf of the claimant from the owner of the vehicle towards treatment, which amount has to be accounted for in assessing the compensation payable. The quantum of compensation, which has to be granted to the claimant, has to be assessed with reference to the above factual background and the evidence on record and if so, it is seen that the Tribunal took into account the medical expenditure of Rs.10,748/- probablised by Ex.A.4-medical bills and Ex.A.6- prescriptions, apart from Exs.A.5 and A.7-reports, while quantifying the compensation at Rs.50,000/-. Though the Tribunal refused to act upon Ex.A.3- Disability Certificate when the functional disability with reference to the whole body and the profession of the claimant would have been negligible even if Ex.A.3 is acted upon, the grant of lump sum compensation towards the medical expenses and pain and suffering at Rs.50,000/- can be considered to represent reasonable compensation covering the aspect of any marginal disability suffered by the claimant due to the accident also. However, the Tribunal did not award any compensation towards extra nourishment, attendant charges, transport and other inevitable expenses, which the claimant would have incurred during the period of hospitalization and recovery. The nature of the injuries is such that the claimant would have incurred such inevitable expenses and in the absence of any definite material, awarding a sum of Rs.5,000/- under such miscellaneous heads may be just and reasonable. Similarly, the very nature of the injuries would have disabled the claimant from carrying on his avocation at least for 6 to 8 weeks and though there is no definite evidence about the Photo studio and the income therefor, even a non-earning person is presumed as per the Second Schedule to the Motor Vehicles Act to be earning Rs.15,000/- per annum. The claimant would have undoubtedly engaged himself in some avocation to maintain himself and his family and if the period of disablement were to be taken as two months and even if the minimum wages payable to an agricultural labourer during the relevant time were to be taken as the basis, the claimant may be entitled to Rs.5,000/- under the head of loss of earnings. Grant of Rs.10,000/- in total under these two heads in addition to the compensation already awarded may meet the requirement of just and adequate compensation and the impugned award has to be modified accordingly. In view of the length of time for which the interest has to be paid on the enhanced portion of the compensation, such interest can be confined to 6% per annum, while proportionate costs should follow suit. In the result, the award dated 29-01-2002 in O.P.No.1073 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-III Additional Chief Judge, City Civil Court, Hyderabad, is modified by awarding a further compensation of Rs.10,000/- with interest thereon at 6% per annum from the date of petition till realization and proportionate costs, in addition to the compensation already awarded by the impugned award and the appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 11-11-2010 Ksn