IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.1967 OF 2002 BETWEEN: Budumuru Suryanarayana S/o. Late Bodayya …. Appellant AND 1. G. Rama Krishna Raju S/o. Late Sanyasi Raju 2. The Oriental Insurance Company Limited, Rep. by its Branch Manager, Visakhapatnam. …. Respondents (Respondent No.1 dismissed for default vide C.O. dated 22-09-2008) THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.1967 OF 2002 JUDGMENT: This appeal is by the claimant regarding his dissatisfaction with the award of compensation of Rs.1,71,000/- granted by the Motor Accident Claims Tribunal (II Additional District Judge), Visakhapatnam in O.P. No.220 of 2000 dated 06-02-2002. The said claim in the O.P. was made for Rs.2,50,000/- on account of the injuries suffered by the claimant in the accident which occurred on 01-12-1997. The case of the claimant is that on the fateful day, while he was returning to his native village on a cycle, the offending truck bearing No.AHV 8288 came in a high speed in a rash and negligent manner and dashed against the claimant resulting into his fall, leading to crush injury to his right leg apart from other injuries on his body. He further claimed that he has taken prolonged medical treatment and spend considerable amount to a tune of Rs.20,000/- towards medical expenses, Rs.3,000/- for extra nourishment and Rs.5,000/- towards attendant staff. It is also claimed that he was earning Rs.100/- per day as a carpenter and ironing works, which he is unable to attend after the accident on account of the disability suffered by him. The claim for compensation, accordingly, was made. 2. The Insurance Company disputed the said claim by filing a counter, pointing out that though the accident occurred in 1997, the claim petition was filed in 2000. Though, the quantum of compensation claimed was denied and liability also was denied, the insurance coverage of the offending vehicle was however not disputed. 3. Before the Tribunal below, the claimant was examined himself as PW.1 and marked Exs.A-1 copy of FIR, Ex.A-2 copy of wound certificate, Ex.A-3 copy of Motor Vehicle Inspector’s report, Ex.A-4 Disability Certificate, Ex.A-5 Identity card and Ex.A-6 copy of Charge Sheet. Copy of Insurance Policy was marked on behalf of respondent No.2 as Ex.B-1. 4. Out of the above said documents, Exs.A-2 and A-4 are most relevant for assessing the nature of injuries suffered by the claimant. The Tribunal below considered the aforesaid evidence and came to the conclusion on issue No.1 that the offending vehicle was being driven in a rash and negligent manner and to the extent of quantum of compensation, though the Tribunal accepted the claim of the claimant to the extent of Rs.30,000/- towards pain and suffering and Rs.20,000/- towards treatment and medicines and attendant charges were accepted to the extent of Rs.1,000/-. With respect to the compensation to the injuries, the Tribunal considered Ex.A-2 wound certificate but did not accept Ex.A-4 disability certificate and granted a lump sum amount of Rs.1,20,000/-. 5. Out of the aggregate amount of Rs.1,71,000/- granted by the Tribunal, Rs.25,000/- received by the claimant towards no fault liability in M.O.P. No.905 of 1998 was deducted and balance of Rs.1,46,000/- were decreed. The same is questioned in the present appeal, where the claimant seeks enhancement. 6. Learned counsel for the appellant has drawn my attention to Ex.A-4, which is disability certificate of the claimant issued by Medical Board and contends that exclusion of the document by the Tribunal cannot be justified. He also claims that Ex.A-2 wound certificate dealing with initial examination of the claimant immediately after the accident and in any case, Ex.A-4 being a certificate issued by the Medical Board specifying the disability suffered by the petitioner, ought to have been preferred by the Tribunal. He also submits that the evidence of PW.1, claimant, shows that he was earning at least Rs.100/- per day in his avocation and on account of amputation of his right leg just below the knee, he is now disabled and the disability is to the extent of 70%. 7. Learned counsel has relied upon a decision of the Supreme Court in SHANKARAPPA KUBBANNA KATTIMANI v. KARNATAKA STATE ROAD RANSPORT CORPORATION AND OTHERS[1] for the proposition that on the facts and circumstances of the case, the disability of 70% suffered by the claimant must be treated as 100%. He also relied upon a judgment of a Division Bench of Kerala High Court in JAYAPRASAD v. REJIMON PHILIP[2] for the proposition that the amputation of right leg below the knee, the disability was treated as 100% and multiplier of 17 was awarded. 8. On the contrary, learned counsel for the respondent No.2 submits that as per paragraph - 42 of the decision of the Supreme Court in SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER[3] the multiplier for the age group of 31 to 35 years is standardized to 16 and the claimant being falling under the said age group, maximum multiplier applicable is only 16. So far as the income is concerned, the learned counsel states that absolutely there is no evidence in support of the claim made in the O.P. and therefore, at best, notional income of Rs.15,000/- per annum can be adopted. So far as, injury certificate is concerned, learned counsel states that Tribunal below has rightly discarded Ex.A-4, as nobody was examined to prove the said document. 9. In the light of these rival contentions, it has to be first ascertained as to the nature of injury and disability suffered by the claimant in the said accident. From the record, it is not very clear as to on which date Ex.A-2 wound certificate is given. A reading of the said document shows that the doctor, who attended on the claimant on the date of accident, appears to have noted the injuries suffered by him. The said wound certificate, therefore, notices the injuries immediately after the accident and apparently the first injury is grievous in nature, whereas the other injuries are simple in nature and it is also recorded in the said would certificate that the said injuries are possible in a road accident. There is also a date appearing on the said document as 13- 2-1998 and assuming that the certificate was given on that date, the said document does not clearly indicate the disability in any case. 10. Ex.A-4, however, a certificate issued by the Chairman, District Medical Board, District Hospital, Srikakulam and it issued in respect of orthopaedically handicapped candidates in a standard proforma in accordance with G.O.Ms. No.109, Women’s Development and Child Welfare and Labour Department dated 15-06-1992. The said certificate was issued on 17-08-1998 and it states that the claimant has been examined on 17-08-1998 and that the amputation of right lower limb has resulted in 70%. A photograph of the claimant, showing the disability, is affixed on the certificate. The aforesaid document is obviously excluded from the consideration by the Tribunal below, on the ground that nobody is examined to prove the said certificate. The Tribunal below has failed to appreciate that the Chairman of District Medical Board has issued the said document and it is in accordance with the proforma prescribed under the G.O., referred above. Even with respect to proof of the said document is concerned, had the respondents disputed the document, the question of proof might have arisen and then it becomes necessary to examine the person concerned, who has issued the same. In the cross examination of PW-1, one does not find any cross examination or suggestion with respect to or doubting the genuineness of Ex.A-4. The cross examination merely proceeds by suggesting that there is no document of prolonged hospitalization of the claimant and that he did not incur so much expenditure on medicines and on attendants and that the accident is not on account of the negligence of the lorry driver. The aforementioned cross examination, therefore, can hardly be said to be probative and as such, since there is no material doubting Ex.A- 4, exclusion of the said document by the Tribunal below is unjustified. In fact, Ex.A-4 being a disability certificate, in point of time, having been issued by the Medical Board, the same has to be preferred to Ex.A-2. The Tribunal below therefore committed an error in excluding Ex.A-4 and preferring Ex.A-2. Therefore, I am inclined to accept Ex.A-4 and proceeded to examine the assessment of disability of the claimant being at 70%. 11. The decision of the Supreme Court (1st cited supra) by the learned counsel for the appellant to claim disability must be treated as 100%, however, is justifiable on the facts in that case. The claimant in that case had lost one arm and his avocation as a coolie, was therefore, impossible. In that situation, the disability was treated as 100%. The present case is that of amputation of right leg below knee and the aforesaid decision of the Supreme Court cannot be applied to the facts of the present case. 12. So far as the decision of Kerala High Court (2nd cited supra) is concerned, the said decision, no doubt, is nearer on facts to the present case. In that case, Tribunal has adopted the disability at 40% basing on the disability certificate and the appellate Court assessed the disability at 100% though it was certified as 40%. The disability, though in lesser degree and percentage in fact effects the entire earning capacity of the claimant would depend upon the avocation, age etc., from case to case. In the case before Kerala High court, the claimant was carrying on the avocation as a driver and obviously, on account of the amputation, he would not be in a position to carryon his avocation. Under those circumstances, though the disability certified at 40%, he would not have been able to earn his livelihood as a professional driver and therefore, the disability was treated as 100%. 12. So far as the avocation of the claimant in the present case is concerned, admittedly, it is relating to carpentry and ironing and that the amputation of right leg below the knee would cause considerable disability. It cannot be said that there is 100% disability in the present case as contended by the learned counsel for the appellant. The disability therefore, has to be treated as 70% as certified in Ex.A-4. 13. So far as income of the claimant is concerned, it is true that there is no evidence and it is equally true that there is no cross examination of PW-1 that he was earning Rs.100/- per day prior to the accident. But, the income of the claimant has to be proved by positive evidence and not by inference from lack of cross examination. In the absence of any positive evidence, therefore, we have to proceed on the footing that notional income of the claimant as Rs.15,000/- per annum. Since, he is in the age group of 31 to 35 years, a multiplier of 16, as stipulated in paragraph No.42 of the decision (3 cited supra), would be appropriate to be adopted and applying the same, the compensation would work out to Rs.2,40,000/-. Since the disability of 70% is to be accounted there from, the same would worked out to Rs.1,68,000/-. The compensation of Rs.1,20,000/- granted by the Tribunal below shall stand modified and substituted by Rs.1,68,000/-. The components of Rs.30,000/- granted by the Tribunal below towards pain and suffering and Rs.20,000/- towards medicines and Rs.1,000/- towards attendant charges, however, do not deserve any interference. 14. Accordingly, with the above modification, the appeal is allowed. The amount enhanced as above, shall carry interest at 7.5% from the date of claim till realization. There shall be no order as to costs. ________________________ VILAS V. AFZULPURKAR, J November 27, 2009. KTL [1] 2007 ACJ 2279 [2] 2008 ACJ 1272 [3] 2009 (6) SCC 121