IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SEVENTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY M.A.C.M.A.NO.804 OF 2008 Between: Thaher Miya …APPELLANT AND Md.Salar and another …RESPONDENTS THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY M.A.C.M.A.NO.804 OF 2008 JUDGMENT: This appeal is directed against the order, dated 28.11.2007 in O.P.No.182 of 2003 on the file of the VII Additional District Judge, Mahabubnagar, whereunder the claim application filed by the petitioner was allowed in part granting compensation of Rs.20,000/- with costs and interest @7.5% per annum from the date of filing of the petition till the date of deposit of the awarded amount. 2. Heard both sides. 3. The petitioner filed the claim application under Section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.1,00,000/- for the injuries sustained by him in a Motor Accident that occurred on 04.10.2002. The petitioner was an agricultural coolie and he was attending for loading and unloading of paddy bags on the tractor bearing No.AP-28-U-4739 and 4740 and on account of rash and negligent driving by its driver, the vehicle turned turtle, resulting in grievous injuries to the petitioner including fracture of hip. The petitioner is aged about 47 years at the time of accident. Respondent No.1 filed counter denying their liability. 4. During enquiry, the petitioner himself examined as P.W.1 and also examined the Doctor, who treated him, as P.W.2 and got marked Exs.A.1 to A.6. On behalf of the respondents, no oral or documentary evidence was adduced. 5. On consideration of evidence available on record, the Tribunal held that the accident occurred due to rash and negligent driving by driver of the tractor. The said award is not challenged by way of an appeal. The Tribunal held that the petitioner is entitled to a sum of Rs.20,000/- and accordingly awarded compensation with interest @7.5% per annum from the date of filing of the petition till the date of deposit of the awarded amount. 6. Not satisfying with the same, the petitioner filed the present appeal. 7. The only ground urged by the learned counsel for the appellant is that the Tribunal failed to take into consideration the evidence on record showing that the appellant suffered disability to an extent of 30% on account of injuries and fracture of hip sustained by him in a Motor Accident. The appellant himself examined as P.W.1. In support of his evidence he examined P.W.2, the Doctor who treated him and issued Ex.A.4 disability certificate. As per medical evidence on record, the appellant has suffered physical disability of 30%. However, the Tribunal has taken the same as 5% without any basis. When the expert evidence is available on record and the same is not challenged in the cross-examination, Tribunal ought to have taken percentage of the disability at 30% as stated by P.W.2 coupled with Ex.A.4, instead of substituting the same, with its own assessment at 5% without there being any basis for making such assessment. The Tribunal awarded a sum of Rs.5000/- for the grievous injury and Rs.4000/- for the simple injuries under the head of pain and suffering and the said amount is considered to be just and reasonable. An amount of Rs.2000/- was awarded for loss of income during the period of hospitalization. The Tribunal awarded a sum of Rs.9000/- towards loss of earning capacity, taking income of the appellant at Rs.50/- per day and applying multiplier ‘11’ and taking the percentage of disability at 5%. The appellant being an agricultural coolie, the income taken by the Tribunal and also the multiplier were considered to be just and reasonable. However, taking the percentage of the disability at 30%, the compensation payable on account of loss of earning capacity comes to Rs.59,400/-, in which event, the appellant would not be entitled for a separate amount of Rs.2000/- towards loss of past earnings as the age, on the date of accident is taken into consideration for estimating his earning capacity. The appellant is entitled for a compensation of Rs.68,400/- (59,400/- + Rs.9000/-) with interest @7.5% per annum on the original amount awarded by the Tribunal from the date of petition and 6% per annum on the enhanced amount from the date of filing of the appeal. 8. Accordingly, the appeal is partly allowed modifying the impugned order. There shall be no order as to costs. _______________________ G.V. SEETHAPATHY, J OCTOBER 17, 2011. YVL