HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.2115 of 2001 Between: Yerra Ramana Appellant And N.Sundara Rao and another Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD C.M.A.No.2115 of 2001 JUDGMENT: This appeal is directed against the award dated 16-03-1998 in M.O.P.No.733 of 1995 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam. 2. The factual background for the appeal is that the appellant along with some other passengers was travelling in an auto bearing Regn. No.AP.31.T-1546 on 02-03-1995 and the auto driven at a high speed rashly and negligently, turned turtle when the auto driver tried to avoid an opposite coming lorry. The appellant was injured all over his body and his left leg was fractured. He was shifted to Surya Nursing Home, Tagarapuvalasa, and from there, he was shifted to King George Hospital, Visakhapatnam, where a surgery was performed on his left leg inserting a steel rod. The left leg was not properly united and the disability was permanent. The petitioner, who is an auto driver, earning Rs.1500/- per month by plying a hired auto, became unable to drive the auto after the accident and hence, he claimed a compensation of Rs.1.00 lakh from the owner and insurer of the auto. 3. While the owner of the auto remained ex parte, the insurer contested the claim not admitting any of the claims of the petitioner, and putting him to strict proof of all the details including the auto driver holding a valid driving licence at the time of accident. 4. The Tribunal framed appropriate issues on the manner of the accident and the quantum of compensation and examined P.Ws.1 and 2 and marked Exs.A-1 to A-6 during the course of the enquiry while R.W.1 was examined and Exs.B-1 was marked on behalf of the insurer. 5. The Tribunal rendered the impugned award firstly accepting the evidence of P.W.1 corroborated by Ex.A-1, copy of First Information Report, about the manner of the accident and concluded that the accident occurred due to the rash and negligent driving of the auto. The Tribunal then noted that the copy of Insurance Policy, Ex.B- 1, covered four passengers including the driver and in the absence of any plea taken about the breach of the terms and conditions of the insurance policy by the 1st respondent, the insurer cannot disown the joint and several liability to justly and adequately compensate the injured petitioner. The Tribunal then noted that the left hip joint movements of the petitioner became limited and restricted after the accident, and even after treatment, resulting in 30% permanent partial disability. The evidence of P.W.2, the Medical Officer, was also noted to be to that effect and he confirmed the presence of steel rod in the leg of the petitioner. To remove it, a further surgery is also required. The Tribunal noted the age of the petitioner as 22 years at the time of accident and assessed his monthly income notionally at Rs.750/- and applied a multiplier ’17’ and arrived at the proportionate loss of income due to 30% disability at Rs.45,900/-. The Tribunal added Rs.4,000/- towards pain and suffering and Rs.2,000/- towards medical expenses and awarded total compensation of Rs.52,000/- with interest at 12% per annum from the date of petition till the date of realisation and proportionate costs. 6. The petitioner challenged the said award in this appeal contending that the technical assessment of the disability at 30% is in fact 100% disability for the petitioner who was disabled since then from driving an auto which was his profession. The petitioner also complained against granting of meagre sums towards pain and suffering and medical expenses and contended that if an unskilled labourer will get much more than Rs.750/- per month, his monthly income as an auto driver should have been assessed at a minimum of Rs.2,000/- per month. The multiplier adopted should have been ‘19’ but not ‘17’ and therefore, the petitioner desired the impugned award to be modified. 7. Heard Smt. M.Uma Devi, learned counsel representing Sri G.Ramagopal, learned counsel for the appellant, Sri T.Yadgiri, learned counsel, representing Sri T.K.Sreedhar, learned standing counsel for the 2nd respondent. 8. None appeared for the 1st respondent. 9. The point for consideration is what could be the just and adequate compensation to which the petitioner is entitled to. 10. The conclusions of the Tribunal about the rash and negligent driving of the auto driver being the cause for the accident, and the joint and several liability of both the respondents to justly and adequately compensate the petitioner were not challenged by any of the parties and those conclusions have become final leaving only the question of quantum of compensation to be determined herein. 11. The facts that P.W.1 suffered fracture during the accident and that a surgery was performed on him inserting a steel rod in his left leg and that he is still left with 30% disability of the left limb are not in dispute. The consequential loss of earnings was rightly assessed by the Tribunal at 30% of his probable earnings. However, notwithstanding the admitted occupation of the petitioner as an auto driver, the Tribunal assessed his monthly income notionally only at Rs.750/- per month. The Minimum Wages payable to such auto drivers during the relevant period under the Minimum Wages Act were not placed on record, but this Court can take judicial notice of the fact that they may be much more than Rs.750/- per month. Even the minimum wages payable to an agricultural labourer during that period would not have been as meager as Rs.750/- per month. The Motor Vehicles Act itself attributes a notional income of Rs.15,000/- per annum even for non earning persons under its second schedule for purposes of assessing the compensation and even if the probable monthly income of petitioner as an auto driver has to be taken at a minimum of Rs.1500/- to Rs.2,000/- per month, the probable loss of earnings would proportionately come to more than Rs.1.00 lakh even in respect of 30% loss of earnings. Even if the statutory notional income is to be taken into account, the probable loss of earnings would have to be assessed at more than Rs.75,000/-. When a fracture had been suffered, a surgery had to be undergone, and a steel rod had to be inserted, the amounts awarded towards pain and suffering and medical expenses at Rs.4,000/- and Rs.2,000/-, respectively, are also highly conservative and the total compensation claimed at Rs.1.00 lakh by the petitioner is eminently just and reasonable. Under all the heads of account, under which the petitioner is entitled to compensation including the minimum loss of earnings, he will be undoubtedly entitled to the sum claimed in the petition and the Tribunal should have allowed the petition as it is without reducing the compensation. Therefore, the award in question has to be accordingly modified, while of course restricting the interest to be awarded on the enhanced compensation to 7.5% per annum as is usually awarded now. 12. In the result, the award dated 16-03-1998 in O.P.No.733 of 1995 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam, is modified by enhancing the compensation to Rs.1.00 lakh, which compensation shall be paid with costs and with interest at 12% per annum on Rs.52,000/- and at Rs.7.5% per annum on Rs.48,000/- from the date of petition till the date of realisation. No further directions need be given about the disbursement of compensation at this distance of time and the appeal is allowed accordingly without costs. _________________ 2nd August 2010 KVR