THE HON'BLE SRI JUSTICE GHULAM MOHAMMED MACMA No. 635 OF 2006 Dated: 17.02.2011 Between: C.Kumar ... APPELLANT AND V.Ganesh and another ... RESPONDENTS THE HON'BLE SRI JUSTICE GHULAM MOHAMMED MACMA No. 635 OF 2006 JUDGMENT: This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act’) is directed against the Common Award, dated 07.07.2005 in O.P No. 1186 of 2003 (along with O.P.No.1187 of 2003) on the file of the IV Additional Chief Judge-cum-Motor Accident Claims Tribunal, City Civil Court, Hyderabad. The claimant is the appellant herein, who filed the O.P before the Tribunal claiming compensation of Rs.1,50,000/- for the injuries sustained by him in an accident. He pleaded that on 04.02.2003, at about 13.30 hours, he along with other persons were proceeding in an auto bearing No.AP-13-U-9154 from Vikarabad to Nawabpet, side and when they reached the outskirts of Ekmamidi Village, the driver of the auto drove the auto with high speed and in a rash and negligent manner, due to which the auto turned turtle and the claimant and other passengers received serious injuries and that they were shifted to General Hospital and from there they were referred to Osmania General Hospital, Hyderabad. The claimant stated that he sustained grade I compound fracture to shaft femur medial third left, that he undergone surgery and that open induction and interlocking nailing was done and thus, he claimed compensation of Rs.1,50,000/- for the grievous injury received by him and for the treatment. The first respondent remained ex parte before the Court below. The second respondent – Insurance Company filed the counter denying all the material allegations. On the strength of the rival pleadings, the learned Judge framed necessary issues as to whether the petitioner sustained injuries in a motor accident that took place on 04.02.2003, due to rash and negligent driving of Auto bearing No. AP-13U-9154, by its driver; whether the petitioner is entitled for compensation, if so, from whom and what amount and to what relief? The petitioner himself was examined as P.W.1 and examined P.W.2 on his behalf and got marked Exs.A-1 to A-13. Though no oral evidence was adduced, Ex.B-1 copy of the Insurance Policy was marked on behalf of the second respondent – Insurance Company. The Tribunal after considering the evidence on record, held that the accident occurred due to rash and negligent driving of driver of Auto bearing No. AP-13U-9154, and therefore, the claimant is entitled to receive compensation. Accordingly the Tribunal awarded a compensation of Rs.44,000/- i.e., Rs.1,000/- towards attendant charges; Rs.2000/- towards extra nourishment; Rs.1000/- towards transportation charges and Rs.35,000/- for compound communicated fracture. Being dissatisfied with the quantum of compensation awarded, the claimant has filed this appeal seeking enhancement of compensation on the ground that the compensation awarded by the Tribunal is very meager and disproportionate. The learned counsel for the appellant/claimant contended that the compensation awarded by the Tribunal is on lower side, which needs to be enhanced; that though the doctor who was examined as PW2 deposed that the appellant/claimant sustained 15% disability, the Tribunal has not taken the same into consideration; that the Tribunal, while awarding compensation, ought to have applied the multiplier ‘14’ since the claimant was aged 42 years at the time of the accident. He also contended that though the claimant was earning Rs.8,000/- per month from his sundry kirana business, the Tribunal failed to appreciate the same. The learned counsel for the second respondent – Insurance Company contends that the compensation awarded by the learned Judge is quite reasonable and needs no interference. There is no dispute with regard to the rash and negligent driving by the driver of the auto. Regarding the earnings of the claimant, the Supreme Court in Hardeo Kaur vs. Rajasthan State Transport Corporation[1] held that the determination of compensation in respect of injury cases must be liberal. The relevant portion of the same reads as under: “the determination of compensation in respect of injury cases must be liberal and the amount of compensation so awarded should not be niggardly and at the same not a wind fall as a profit making venture through the Learned Judges or Courts. When the compensation is awarded by the Courts and Learned Judges even the tort feasor should feel that he is atoned for the sin committed by him in committing the accident robbing the precious life of a human being and injuring the innocent person for no fault of his and the guidelines from such precedents is only to emphasise that if there are two precedents dealing with the same question of assessing the compensation, the one which has adopted a liberal approach should be preferred than the one which has adopted the conservative approach.” While keeping the above decision in mind and since a perusal of the record shows that the claimant produced Ex.A9 certificate issued by the Executive Officer of Nawabpet Village, Ranga Reddy District, showing that he was doing sundry kirana business and earning Rs.8,000/- per month, though the Tribunal observed that no other documentary evidence was produced to substantiate the same such as payment of sales tax etc, considering the fact that he was doing kirana business was certified by the authorized person i.e., Executive Officer of Nawabpet, on an average his earnings per month can be taken at Rs.3,000/-. Accordingly, per annum his income comes to Rs.36,000/-. Since the claimant was aged 42 years at the time of the accident, as per Sarla Varma v. Delhi Transport Corporation[2] the appropriate multiplier ‘14’ shall be adopted for the purpose of calculating the compensation. Of course, no disability certificate was produced by the claimant to prove that he sustained 15% disability, considering the nature of the injury sustained by him i.e., fracture and the surgeries undergone by him for inserting and removing implants, this Court is of the opinion that disability can be taken at 15%. Accordingly, loss of earnings can be calculated at Rs.5,04,000/- (36000 x 12 x 14), out of which the claimant is entitled for Rs.75,600/- i.e., 15%. In addition to the said amount, considering the facts of the case, the claimant is entitled to Rs4,500/- towards pain and suffering and Rs.10,000/- towards medical expenses. In all, the claimant is entitled to a compensation of Rs.90,100/-. Accordingly, the compensation awarded by the Tribunal is enhanced from Rs.44,000/- to Rs.90,100/- and the enhanced amount shall carry interest at 7% per annum from the date of petition till realisation. With the above modification, the M.A.C.M.A. is allowed in part. There shall be no order as to costs. ________________________ GHULAM MOHAMMED, J FEBRUARY 17, 2011. YVL [1] AIR 1992 SC 1261 [2] 2009 (6) SCALE 129