IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTYFOURTH DAY OF AUGUST TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.2568 of 2003 & 2938 of 2003 C.M.A.No.2568 of 2003 Between: S. Chitti Babu .. Appellant AND S. Govinda and 3 others .. Respondents C.M.A.No.2938 of 2003 Between: M/s. United India Insurance Co. Limited, Visakhapatnam. .. Appellant AND S. Chittibabu and 3 others .. Respondents COMMON JUDGMENT: These two Civil Miscellaneous Appeals arise out of the same award and hence, they are being disposed of by this common judgment. M.O.P.No.1037 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Visakhapatnam, arose out of the claim for compensation of Rs.14,00,000/- by the injured-claimant from the driver, owner and insurer of the lorry No.AP03-U-1159 jointly and severally. The claimant stated that he was walking on the road towards Abidnagar junction, Akkayyapalem at Visakhapatnam on 4-6-2000 at about 6.00 A.M., when the subject lorry driven in high speed dashed against him even without blowing horn resulting in injuring both his hands and amputation of right hand in spite of treatment at King George Hospital, Visakhpatnam. The claimant working as black smith in Port Trust earning Rs.9,500/- per month also took treatment in a private hospital and he is no longer capable of doing his technical job due to which he may have to face removal. The claimant did not press the claim against the driver and the former owner of the lorry sailed with the insurer, while the present owner of the lorry remained ex parte. The insurer contended that the claimant has to directly prove all the ingredients required to claim compensation and the insurer denied its liability to pay the excessive compensation claimed. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation and from which respondents. The Tribunal examined PWs.1 to 3 and marked Exs.A.1 to A.12, C.1 to C.3, X.1 and Ex.B.1 during enquiry. The Tribunal rendered the impugned award firstly concluding that the lorry driver was responsible for the accident for which purpose it relied on the evidence of PW.1, the injured, corroborated by the First Information Report-Ex.A.1 etc. In assessing the quantum of compensation, the Tribunal on the strength of oral and documentary evidence, first concluded that there was no proof of the claimant going on sick leave at any time. The disability certified at 70% by the doctor was considered to be only 30% by the Tribunal. Applying a multiplier of 17 for the age of 35 years of the claimant, the Tribunal assessed the loss of earning power at 30% on the monthly salary of Rs.9,600/-. Apart from Rs.5,87,520/- under that head, the Tribunal considered it fit to award Rs.15,000/- towards medical expenses as against Rs.19,184/- covered by the bills under Ex.A.11. The Tribunal further awarded Rs.10,000/- towards pain and suffering and Rs.10,000/- towards extra nourishment and transport charges. On the total compensation of Rs.6,22,520/-, the Tribunal granted interest at 9% p.a. from the date of petition till realization. The claimant challenged the said award in C.M.A.No.2568 of 2003 contending that disability of 70% should have been accepted on Ex.A.7 and the evidence of PW.2 and his susceptibility for removal at any time, due to loss of right hand, from the technical job should have been appropriately appreciated. The appellant can never attend to his normal duty as earlier and interest ought to have been awarded at 12%. The balance compensation out of Rs.14,00,000/- claimed was also requested, therefore, to be awarded. The insurer filed C.M.A.No.2938 of 2003 contending firstly that there was no rashness or negligence on the part of the lorry driver and consequently, the compensation could not have been awarded when the claimant was continuing in the same employment with the same salary without any loss of earning capacity. Adoption of a higher multiplier and the other circumstances deserve the award to be reversed. Heard Sri Mohd. Asifuddin, learned counsel for the claimant and Sri E. Venugopal Reddy, learned counsel for the insurer. Though there was a faint reference in the grounds of appeal in C.M.A.No.2938 of 2003 to the absence of any rashness or negligence on the part of the truck driver, the same cannot be the subject of any serious pursuit in the face of the evidence of the injured-PW.1 remaining uncontroverted and in the light of the earliest version in the First Information Report-Ex.A.1 further strengthening the claims corroborated by the result of independent investigation by the statutory investigating agency disclosed by Ex.A.8-charge sheet. The conclusion about the rashness and negligence of the lorry driver being the cause for the accident is, thus, inevitable and cannot be interfered with. That leaves the question of just and adequate compensation to which the claimant is entitled. Ex.A.2-wound certificate and Ex.A.7-Disability certificate apart from the other documents coupled with the evidence of PW.2, the doctor, who treated PW.1, positively proved that the claimant had to suffer the amputation of his right fore arm as a result of the accident. While the claimant suffered five injuries, the grievous injuries resulted in the amputation of right hand and his salary being Rs.9,600/- is probablised by Ex.C.3-salary certificate. It is true that out of Rs.9,608-72ps covered by Ex.A.9, all the sums could not have been considered as the basis for assessing the compensation, while the liability to pay taxes including income tax and profession tax should also have been taken into account. The conveyance allowance, the washing allowance etc., are in the nature of reimbursement of actual expenses and taking into account all these circumstances, the income for the purpose of assessment of any loss of future earning capacity could not have been reasonably taken at about Rs.90,000/- per annum out of Rs.1,15,200/-. The disability could have been taken as low as 30% when the medical expert certified the same to be a permanent disability of 70% and the consequences of the amputation are staring at the Tribunal as seen from Ex.A.2. The claimant rightly relied on Depot Manager, APSRTC, Sathupalli v. Ramisetty Koteswar Rao[1] wherein the learned Judge considered loss of left hand of the injured to be resulting in 75% disability though the injured continued to work as before drawing the same salary. The relevant fact of permanent disablement was considered to be a factor, which cannot be lost sight of and the nexus of the permanent disability to the loss of earning capacity also was considered not ignorable. The learned Judge, therefore, considered the injury to result in 50% loss of earning capacity and assessed the compensation accordingly. Similarly, in National Insurance Company Limited, Pudukottai v. A.P. Maha Bharathi and others[2], the Division Bench granted a lump sum amount of Rs.7,00,000/- for amputation of the right hand apart from Rs.1,00,000/- towards medical treatment, Rs.2,00,000/- for mental agony etc., and Rs.3,50,000/- for future medical expenses, artificial limb etc. The total compensation awarded was Rs.14,80,000/-. The Division Bench considered the disability to be 85%. The claimant also referred to Arvind Kumar Mishra v. New India Assurance Company Limited and another[3], but the precedent may not have catered to the needs of the present case where the actual earnings are before the Court and any hypothetical earnings need not be calculated. Taking the disability as 50% herein also like in the binding precedent from this Court in Depot Manager, APSRTC, Sathupalli v. Ramisetty Koteswar Rao (1 supra) will be just and proper, and if so, the loss of earning capacity should be taken as Rs.45,000/- per year notwithstanding the continuance of the claimant in the job getting the same salary. As per Sarla Verma and others v. Delhi Transport Corporation[4], the appropriate multiplier for the person above the age of 35 years is 15. While loss of earning capacity should, therefore, come to Rs.6,75,000/-, the award of Rs.15,000/- towards medicines and Rs.10,000/- each towards pain and suffering and extra nourishment and transport charges need not be interfered with at this distance of time, more so, when the medical bills were to a tune of Rs.19,184/- and when other inevitable charges towards attendant charges, damage to clothing etc., were not awarded and when any future requirement of any treatment including taking recourse to an artificial limb were not considered. The total compensation ought to be awarded, therefore, should never have been less than Rs.7,10,000/- and taking into account the compensation already awarded, the enhancement can be rounded off to Rs.90,000/-. Given the length of time for which interest has to be paid on the enhanced compensation, the same can be confined to 6% p.a. While the insurer cannot succeed in its appeal even on the quantum of compensation merely on the ground of permanently disabled claimant continuing in his job with the same salary, the claimant should succeed partly in getting an enhancement as indicated above. In the result, the award dated 30-04-2003 in MOP.No.1037 of 2000 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Visakhapatnam, is modified by awarding a further compensation of Rs.90,000/- with interest thereon at 6%p.a. from the date of petition till the date of realization, in addition to the compensation already awarded in the impugned award. C.M.A.No.2938 of 2003 is accordingly dismissed and C.M.A.No.2568 of 2003 is accordingly allowed in part and the parties shall bear their own costs in both the appeals. _____________________ G. BHAVANI PRASAD, J Date: 24-08-2011 Ksn [1] 1998 (2) ALT 688 [2] C.M.A.No.1301 of 2002 decided on 27-10-2010 by Madras High Court [3] Civil Appeal No.5510 of 2005 decided on 29-09-2010 by the Apex Court [4] 2009 ACJ 1298