IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD TUESDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.1553 OF 2009 Between: Thota Kumaraswamy …Appellant A n d Halvath Saraiah and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.1553 OF 2009 JUDGMENT: This appeal is directed against the order dated 04.02.2008 in M.V.O.P.No.389 of 2006, on the file of the Chairman, Motor Accidents Claims Tribunal (III-Additional District Judge), Warangal (for short ‘the Tribunal), wherein the said claim application filed by appellant herein for compensation was allowed-in-part, awarding Rs.75,500/- with interest at 7.5% per annum from the date of petition. 2. Heard the learned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. The appellant herein filed the claim application seeking compensation of Rs.3,50,000/- for the injuries sustained by him in a motor vehicle accident that occurred on 21.08.2004. According to the claimant, on that day, he was travelling by auto bearing No.AP 36 V 9243 to go to Narsampet and that at Jarubanda canal another auto bearing No. AP 36 V 9878, driven by its driver in a rash and negligent manner, dashed against the auto in which the claimant was travelling, resulting in multiple injuries to the claimant, who was shifted to Narsampet Government Hospital and then to MGM Hospital for better treatment. A case was registered against the driver of auto bearing No.AP 36 V 9878 and after investigation, the police filed a charge sheet against him. The claimant was inpatient in the hospital till 25.09.2004. The injuries have resulted in shortening of right leg by one inch which is a permanent disability. The claimant further pleaded that he was required to undergo future surgery for removal of the rods. 4. Respondents 1 and 2 remained ex parte. Respondents 3 and 4 field a counter opposing the claim and denying their liability to pay the compensation. 5. During enquiry, P.Ws.1 to 3 were examined and Exs.A-1 to A-9 and Ex.X-1 were marked on behalf of the claimant. No oral evidence was adduced by the respondent, but Ex.B-1 copy of insurance cover note was 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 auto bearing No. AP 36 V 9878 by its driver and further held that there was contributory negligence on the part of the driver of the auto bearing No.AP 36 V 9243 in which the claimant was travelling and, therefore, the liability of the respondents is reduced to half. The Tribunal further held that the claimant is entitled for a total compensation of Rs.1,51,000/-, but in view of the equal apportionment of liability among the drivers of the two autos, award was passed for an amount of Rs.75,500/- with interest at 7.5% per annum. Aggrieved by the same, the claimant filed the present appeal. 7. The main contention of the learned counsel for the appellant is that the Tribunal erred in apportioning the liability and reducing the amount by half and the Tribunal also erred in deducting one-third towards personal expenses though it is a case of injuries and the Tribunal also erred in taking the percentage of disability at 20%, though the medical evidence on record showed that it was 30%. 8. The Tribunal has taken the age of the claimant as 45 years and his earning as Rs.36,000/- per annum and applied the multiplier ‘15’, after deducting one-third towards personal expenses. Since it is a case of injuries, the question of making deduction towards personal expenses does not arise. Thus, by taking the income of the claimant at Rs.36,000/- per annum and applying the multiplier ‘15’ adopted by the Tribunal for the age of the claimant, the loss of earning capacity on account of permanent disability comes to Rs.1,62,000/- (Rs.36,000/-x 15 x 30%). When the medical evidence on record i.e., the testimony of P.W.3 who issued the disability certificate Ex.A-8 shows that the claimant was having a permanent disability of 30% on account of post traumatic stiffness and post operative fixation of right femur and tibia with shortening of leg by 3 inches and limitation of movements of knee and, therefore, it was difficult for the claimant to run, do hard work and agricultural work, the Tribunal ought to have taken the same into consideration instead of unilaterally reducing the percentage of disability to 20% without any basis. The Tribunal awarded a sum of Rs.20,000/- for Grade-III compound comminuted fracture to both bones of right leg, Rs.15,000/- for Grade-I compound fracture of supra candela right femur and Rs.3,000/- for laceration, totalling to Rs.38,000/- which includes pain and suffering, mental discomfort and inconvenience. The Tribunal also awarded Rs.3,000/- towards attendant charges, Rs.1,000/- towards transportation charges and Rs.3,000/- towards extra nourishment and Rs.25,000/- towards medical expenses covered by Ex.A-9 bunch of medical bills and Rs.9,000/- towards loss of earnings. 9. As the respondent-insurer has not filed any appeal questioning the award, the above amounts granted by the Tribunal are left undisturbed. The total compensation payable to the claimant comes to Rs.2,41,000/-. 10. Even according to the claimant, as seen from the impugned order, the auto bearing No.AP 36 V 9243 in which he was travelling was also going at high speed and in a rash and negligent manner and the accident occurred on account of rash and negligent driving of both the autos by its drivers. P.W.1 further admitted in the cross-examination that the accident occurred due to the collision of both the vehicles. As the claimant himself pleaded before the Tribunal that the accident occurred on account of the rash and negligent driving of the auto in which he was travelling by its driver and in view of the admission of P.W.1 in the cross-examination, the Tribunal has rightly apportioned the liability on both the vehicles equally. The owner and insurer of auto AP 36 V 9243 in which the claimant was travelling were not made parties to the claim application. The owner and insurer of the other auto AP 36 V 9878 respondents herein were, therefore, held liable for payment of half of the compensation towards their 50% share of liability. The appellant is, therefore, held entitled to recover a sum of Rs.1,20,500/-, being half of the amount of Rs.2,41,000/- together with interest at 7.5% per annum on the original amount awarded by the Tribunal from the date of petition and with interest at 6% per annum on the enhanced amount from the date of filing of the appeal. The impugned order is modified accordingly. 11. In the result, the appeal is allowed to the extent stated above. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 06th September, 2011 Lrkm.