IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE NOUSHAD ALI C.M.A. NO.599 OF 2003 Between : Boya Jayanna .... APPELLANT AND N.Anji Reddy and another. …RESPONDENTS THE HON'BLE SRI JUSTICE NOUSHAD ALI C.M.A. NO.599 OF 2003 JUDGMENT: This appeal is filed by the claimant seeking enhancement of compensation in the award in M.V.O.P.No.272 of 2000, on the file of Motor Accidents Claims Tribunal-cum-II Additional District Court, Kurnool. 2. This is a case of injuries. On 20.12.1999, the claimant along with other passengers was travelling in a D.C.M. Van bearing No.AP- 28-U-869 from Kurnool to Hyderabad. The vehicle was driven in a rash and negligent manner, and in the early hours at about 4.30 A.M., it dashed against a stationary lorry trailor, due to which the appellant sustained injuries. He was shifted to Government General Hospital, Kurnnol, where he underwent treatment. Due to the accident the petitioner suffered physical disability. Therefore, he filed the O.P. seeking compensation of a sum of Rs.1,50,000/-. 3. The first respondent remained exparte and the second respondent-insurance company contested the claim. The appellant examined himself as PW-1 and the Doctor was examined as PW-2 on his behalf. Exs.A1 to A4 were marked, in support of the claim. The second respondent examined its Senior Assistant as RW-1 and got marked Ex.B1 insurance policy. 4. The Tribunal, on the basis of the evidence adduced, and based on Ex.A3, wound certificate, held that there are two grievous injuries and one simple injury and awarded Rs.25,000/- each in respect of the grievous injuries and Rs.1,500/- for the simple injury. The Tribunal, further awarded Rs.10,000/- towards medical and hospital expenses, Rs.8,500/-towards extra nourishment and attendant charges and Rs.70,000/- towards pain and suffering; in all, the Tribunal awarded a sum of Rs.70,000/-. 5. Not satisfied with the quantum, the claimant has filed this appeal. 6. Heard both sides. 7. Since, this appeal is filed by the claimant, the issue relating to rash and negligence need not be gone into. 8. It may be noted that, the Tribunal did not assess the quantum based on the income of the claimant, rather it awarded compensation injury-wise. It was the plea of the claimant that he was doing business and earning Rs.6000/- per month. In his evidence as PW-1 he stated that he was doing business in vegetables and other seasonal fruits and prior to the accident he was earning Rs.5000/- per month, and after the accident, he could not do any business, since he sustained fracture to his leg. In the cross examination, he however, stated that he did not file any document to show his income. But he denied the suggestion that he was not earning Rs.5000/- per month from the business prior to the accident. He reiterated that he has spent Rs.15,000/- towards medical and hospital expenses. 9. PW-2 was a Doctor, working as Assistant Professor of Orthopaedics, Kurnool Medical College, Kurnool. He deposed that the claimant was treated for the injuries sustained by him. The claimant was admitted in the hospital as inpatient from 20.12.1999 to 09.02.2000 and he attended on him during the said period. In his evidence, he stated that he found a malunited fracture of the medial malleolus with subluxation of the ankle joint and satisfactorily united fracture shaft femur. He found that the left lower limb were shortening of 1/ inch with moderate limitation of all the movements around the ankle joint with severe tenderness. The percentage of disability is around 25% to the left ankle and shortening of left lower limb by ½ inch. He further deposed that steel plates were inserted to his left lower limb. They have to be removed by undergoing another surgery. In his cross-examination he reiterated that the claimant was discharged on 09.02.2000. He further stated that the Medical Board would be constituted by the Superintendent, GGH, Kurnool, to estimate the disability percentage. He examined the petitioner clinically on 21.04.2002, due to his experience as Assistant Professor, he was able to read the X-Rays. To a suggestion, he deposed that as per the Medical manual ½ inch shortening of any limb would cause 5% disability only. However, he denied the suggestion that the petitioner was not suffering with 25% disability to his left limb and that he is not suffering with any disability, with his ankle movements. He further certified that as per Ex.A3 the claimant sustained two grievous injuries and one simple injury. 10. From the evidence of PW-2, it is evident that the claimant suffered 25% disability. A suggestion that he suffered 5% disability as per the medical manual does not help the second respondent, in view of the factual assertion of PW-2 that the claimant in fact suffered 25% disability. Therefore, it is to be held that the claimant suffered 25% disability in the accident. 11. It is true that the claimant did not adduce any documentary evidence to show that he was earning Rs.5000/- per month. But in his evidence he clearly deposed that he was doing business in vegetable and seasonal fruits, except suggesting that the claimant was not doing business, the second respondent did not adduce any evidence to contradict the statement of the claimant. 12. The Senior Assistant of the second respondent who was examined as RW-1 also did not state anything even in chief examination that the claimant was not doing business. It is therefore, to be held that the clamant was doing business and earning some amount from out of it. Although, there is no documentary evidence, it is reasonable to infer that he was earning Rs.3000/- per month i.e., @ R.100/- per day. The learned counsel for the second respondent, however, contended that the income should be taken as Rs.15,000/- per annum as per the second schedule. It may be noted that the said amount is a notional income in the case of those who had no income prior to the accident. Considering the fact the appellant was doing business as held herein above, he cannot be considered as the one who had no income. As per the statement of the claimant, in his cross- examination, he was aged about 30 years as on the date of evidence i.e., on 02.04.2002. The accident occurred on 20.12.1999. Therefore, the claimant was aged about 27 years as on the date of the accident. Considering the same, ‘17’ would the right multiplier. Therefore, the income can be assessed at Rs.36,000/- per annum, applying the multiplier ‘17’, the loss of earning capacity would be come to Rs.6,12,000/-. Since the disability is assessed at 25%, the proportionate loss of earnings capacity, at 25% disability, would be Rs.1,53,000/-. But claim was restricted to Rs.1,50,000/- only, hence the compensation is enhanced to Rs.1,50,000/- only. 13. The claimant is entitled for interest @ 7.5% per annum, on the enhanced amount from the date of filing of the petition till realization. 14. The Award in M.V.O.P.No. 272 of 2000 on the file of the Motor Accidents Claims Tribunal– cum – II Additional District Court, Kurnool, is modified and the appeal is allowed accordingly. There shall be no order as to costs. __________________ NOUSHAD ALI, J JULY 08, 2010. YVL