* THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY +Civil Miscellaneous Appeal No.2728 of 2003 % 11-11-2010 # 1. Kalla Papamma ..... Appellant Vs. $ Savitha Sankara Rao and another. Respondents ! Counsel for the Appellant : Sri I. Nagesh Counsel for Respondent No. 1: None Counsel for Respondent No.2 : Sri G. Ramachandra Reddy < Gist: > Head Note: ? Cases referred: THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY C.M.A. No. 2728 of 2003 Date: 11.11.2010 Between: Kalla Papamma ..... Appellant AND Savitha Sankara Rao and another. .....RESPONDENTS Counsel for the Appellant: Sri I. Nagesh Counsel for Respondent No. 1 : None Counsel for Respondent No.2 : Sri G. Ramachandra Reddy THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY CIVIL MISCELLANEOUS APPEAL No :2728 of 2003 JUDGMENT: This Civil Miscellaneous Appeal arises out of Award dated 22.9.1999 in O.P. 5 of 1999 on the file of the Motor Accidents Claims Tribunal-Cum-Additional District Judge, (for short ‘the Tribunal’),Viziangaram. The claimant in the O.P. before the Tribunal filed this appeal feeling dissatisfied with the quantum of compensation awarded by the Tribunal for the injuries sustained by her in a motor accident. On 5.8.1997, when the appellant was going on her cycle, she was hit by an auto bearing Registration No. AP 31 U 1664, driven by respondent No.1, who also happened to be its owner. The appellant has sustained injuries on her left leg. These injuries include fracture of both bones of left leg, while the other injuries were simple in nature. The appellant claimed Rs.80,000/- towards compensation for the permanent disability; Rs.25,000/- towards medicines, transport and extra nourishment and Rs. 15,000/- towards pain and suffering. The Tribunal after finding that the accident has occurred on account of the rash and negligent driving of respondent No.1, has however awarded Rs.40,320/- towards permanent disability; Rs. 3,000/- towards medicines, transport and extra nourishment and Rs.5,000/-towards pain and suffering. In view of the fact that respondent No.1 did not hold L.M.V. licence for driving transport vehicles, award was passed only against respondent No.1 absolving respondent No.2 of its liability. Though notice was served, there is no appearance for respondent No.1. Sri G. Ramachandra Reddy, learned Standing Counsel appeared for respondent No.2. I have heard Sri I. Nagesh, learned counsel for the appellant. At the outset, the learned counsel for the appellant has fairly conceded that he has not raised any ground against award of the Tribunal absolving respondent No.2 of its liability. He has however made his submissions on the inadequacy of quantum of compensation awarded against respondent No.1. Learned counsel submitted that the Tribunal ought to have assessed the appellant’s income at Rs.40/- instead of Rs.35/- per day. Learned counsel submitted that P.W.2, the doctor who treated the appellant has issued Ex.A2, Wound Certificate, which clearly shows that the appellant has suffered two grievous injuries as both the bones of left leg were fractured and thereby she has incurred permanent disability of 30%. Despite the said evidence adduced by the appellant, the Tribunal has erroneously taken 20% as permanent partial disability. Learned counsel further urged that the Tribunal has not awarded separate compensation for pain and suffering for the second fracture and other simple injuries and that the Tribunal also erred in awarding a meagre sum of Rs.3,000/- as compensation towards medical expenses, transport and extra nourishment. The learned counsel has also submitted that the appellant was hospitalised for three months and no compensation towards loss of earnings has been awarded. I have carefully considered the submissions of the learned counsel for the appellant and perused the record. As regards the percentage of disability assessed by the Tribunal, it is no doubt true that P.W.2, the doctor has assessed the disability at 30%. However, as rightly pointed out by the Tribunal, except stating that the appellant was still limping, P.W.2 has not explained as to the reasons for estimating the percentage at 30. Ordinarily, every grievous injury need not lead to a person suffering permanent disability. It all depends upon the nature of the injuries suffered by the person. Normally, in a case of fracture, the pain and suffering and its discomfort is transient, except in the case of shortening of limbs and other such serious set backs, and the injured becomes normal after the injuries are healed. In the light of the evidence on record, the Tribunal, in my opinion, has properly appreciated the nature of the injuries of the appellant and has rightly presumed that the permanent partial disability would not have been in excess of 20%. Therefore, I do not find any reason to interfere with this reasoning of the Tribunal. Regarding the income of the appellant, no evidence was placed before the Tribunal. The Appellant was an agricultural coolie. The Tribunal has taken into consideration the minimum wages prevailing at that time in terms of the notification issued under the Minimum Wages Act and has taken average between Rs.28/- and Rs.42/-, which worked out to Rs.35/- per day. This approach of the Tribunal, therefore, cannot be termed as unsound or unreasonable. As regards the submission of the learned counsel for the appellant that the Tribunal ought to have awarded another sum of Rs.5,000/- towards pain and suffering for the other injuries, I find force in this submission. The appellant has suffered two fractures to the left leg. Even under the Second Schedule to the Motor Vehicles Act,1988, which is applicable in cases of compensation claimed under Section 163-A, Rs.5,000/- is payable for each grievous injury. As the appellant has admittedly suffered two fractures, she is entitled to Rs.10,000/- towards pain and suffering. Similarly, the Tribunal ought to have awarded compensation more liberally in respect of medicines and extra nourishment as the appellant appeared to be in hospital as in-patient for three months. I, therefore, find it appropriate to enhance the compensation under this head to Rs.8,000/-. With regard to the submission of the learned counsel for the appellant that the Tribunal has not awarded any compensation under the head “loss of earnings”, though no separate claim under this head has been made, the law is well settled that the Tribunal is entitled to re-adjust the compensation among different heads. The appellant being an agricultural coolie, would have been disabled from attending to her work at least for a period of three months during her hospitalisation. Therefore, it would be reasonable to award a sum of Rs.3,000/- under this head. In the light of the above, the Award of the Tribunal is modified as under: The appellant is entitled to additional compensation of Rs.5,000/- towards pain and suffering; Rs.5,000/- towards medicines and extra nourishment and Rs.3,000/- towards loss of earnings. The enhanced compensation shall carry interest at 6% from the date of petition till the date of payment. The Civil Miscellaneous Appeal is partly allowed. No costs. __________________________ C.V. NAGARJUNA REDDY,J DATE: 11th November, 2010 Note: L.R. copies to be marked. pnb