IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE TWENTIETH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A.No.3469 of 2005 Between: K. Sanjukumar .. Appellant AND M/s. Avon Industries Limited and another .. Respondents JUDGMENT: The appeal is directed against the award dated 30-11-2004 in O.P.No.296 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad. The appellant then a minor aged 10 years was playing in the road margin near his house when mini bus No.AP-13-U-962 dashed against him resulting in grievous injuries and fractures. He was treated at Osmania General Hospital and then at C.D.R. Hospital and Shahinayangunj police registered Crime No.117 of 2001 against the driver and prosecuted him. The claimant was permanently disabled in spite of treatment and permanently lost future earnings and employment. The claimant, therefore, sought for a compensation of Rs.3,00,000/- from the owner and insurer of the mini bus. The owner of the mini bus contended that as his vehicle was insured with the insurer at the relevant time, he has to be indemnified in respect of any liability to compensate. The insurer denied the allegations of the claimant including the existence of an insurance policy and questioned the quantum claimed. The Tribunal framed issues about the manner of the accident and entitlement of the claimant to compensation and examined PWs.1 and 2 and marked Exs.A.1 to A.15 and B.1 during the course of enquiry. The Tribunal rendered the impugned award firstly referring to Ex.A.1-First Information Report and Ex.A.2-Charge sheet in corroboration of the claims of PW.1, the father of the minor claimant, and concluded that the fact that the accident was proved leads to the responsibility being fixed on the owner and insurer of the mini bus, even if any rashness or negligence in driving is not proved in the light of the decision of this Court in Shahazadi Bee v. APSRTC, Musheerabad, Hyderabad (2003 (5) ALD 127). Coming to the quantum of compensation, the Tribunal in view of the claimant being aged only 9 years notionally assessed his income at Rs.300/- per month and on the basis of 70% disability suffered by him as seen from the medico legal record including Ex.A.11-Disability certificate, the loss of future earning power was accordingly calculated at Rs.37,000/-. The multiplier applied was 15 as per the Second Schedule to the Motor Vehicles Act for the purpose and then the Tribunal granted the medical expenses to a tune of Rs.84,238/- being the total of the medical bills produced and bills for payment of charges to the hospital and the consultation fees. The Tribunal also considered it appropriate to award Rs.5000/- towards extra nourishment, Rs.1000/- towards mental shock and agony, Rs.2,000/- towards loss of amenities, Rs.5,500/- towards transport to hospital and Rs.10,000/- towards pain and suffering. The total compensation of Rs.1,39,738/- was rounded off to Rs.1,40,000/- and interest at 6% p.a. was awarded on the compensation from the date of petition till realization. The claimant was aggrieved by the non-grant of the compensation to the extent claimed by him and stated in the present appeal that because of the consequences of the injuries suffered the right leg became thinner and there was total loss of sensation below the knee and loss of movements of right ankle. The disability certificate issued accordingly by PW.2 was not adequately appreciated in ultimately not compensating 70% disability. Therefore, the claimant desired that the entire compensation of Rs.3,00,000/- as claimed be awarded. Sri Srinivasa Rao Vutla, learned counsel for the appellant and Smt. Aruna Yalagiri, learned counsel for the 2nd respondent are heard and the 1st respondent owner of the Mini bus remained unrepresented before this Court. The owner or insurer of the vehicle did not challenge the findings of the Tribunal about the responsibility for the accident being with the driver of the Mini bus and they did not also challenge their joint and several liability to justly and adequately compensate the claimant for the injuries and their consequences. Insofar as the damages awarded under different heads like loss of amenities, mental shock and agony, pain and suffering, transport to hospital and extra nourishment are concerned, the assessment was a matter of guess and estimate in the wisdom and experience of the Tribunal and in the absence of any definite material so strong as to interfere with the assessment by the Tribunal, the same need not be disturbed. Insofar as the medical expenses are concerned, the Tribunal referred to the bills produced and took into account that under the scheme under which the claimant had undergone a treatment, the hospital was entitled to collect a substantial amount from the insurance company leaving only the balance payable by the claimant. Taking the other bills produced for purchase of medicines etc., also into account, the Tribunal assessed as a matter of fact the medical expenses at Rs.84,238/-, which also need not be disturbed in the absence of any convincing oral or documentary evidence to the contrary. Further, coming to the loss of future earning power, the boy aged about 9 or 10 years was otherwise hale and healthy prior to the accident and because of the grievous injuries suffered in the accident in both bones of left leg and three other grievous injuries, he suffered a prolonged course of tortous treatment even after which he did not return to normalcy. The evidence of PW.2, the medical expert, shows that notwithstanding the surgeries, skin graft, treatment and use of medicines, still 70% disability was left for PW.1 due to the loss of sensation in the right leg including loss of movement of right knee and ankle and the consequential difficulty in using the right leg. The evidence of PWs.1 and 2 read together suggested that the right leg of the injured boy had become practically useless and therefore, even if the comparable percentage of future loss of earnings adopted under the Workmen’s Compensation Act has to be taken as a safe guide, the 70% disability as certified by PW.2, the medical expert, should have been taken as imposing a minimum of 50% functional disability and consequential adverse impact on the future earnings. The boy obviously was not earning for himself at his tender age and only a notional income could have been the basis for assessing such loss of future earning capacity. When the statute itself in its second schedule adopted a sum of Rs.15,000/- as the notional income in respect of any person, who is not earning for himself, there is no logical reason as to why the same scale should not have been adopted in respect of the boy. Except arbitrarily stating that the adoption of the notional income in respect of the tender aged boy does not arise and the notional income has to be taken at Rs.300/-, no explicable or acceptable reason has been given by the Tribunal. Therefore, taking the notional income under the Second Schedule to the Motor vehicles Act as the basis and taking the disability permanently imposed on the claimant at 50% of his future earning power, the loss of future earning power should be assessed at Rs.7,500/- p.a. and on application of 15 multiplier as per the Second Schedule, the loss of total earning power should have been compensated at Rs.1,12,500/-. Deducting the amount already awarded, the compensation, therefore, should be enhanced by Rs.75,000/-. The interest awarded on the compensation at 6% p.a. being minimal can be adopted for the enhanced compensation also and the award has to be modified accordingly. Accordingly, the award dated 30-11-2004 in O.P.No.296 of 2002 on the file of the Motor Accidents Claims Tribunal-cum-IX Additional Chief Judge (Fast Track Court), FAC X Additional Chief Judge, City Civil Court, Hyderabad, is modified by awarding a further compensation of Rs.75,000/- payable with interest at 6% p.a. from the date of petition till realization, in addition to the compensation already awarded by the impugned award. The appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 20-09-2011 Ksn