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.385 of 2006 Between: Palakuri Srihari .. Appellant AND M. Shiva Brahammam and another .. Respondents JUDGMENT: This appeal is directed against the award in O.P. No.122 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nalgonda, dated 25-10-2005. The appellant was going on a motor cycle on 25-11-2002 at about 7.30 P.M. when lorry No.AP 16U 1299, driven rashly and negligently at high speed, dashed against him. The appellant sustained fractures of right thigh, left forearm, right leg below the knee, left thigh, left knee and right upper thigh. The police, Kattangur registered crime No.121 of 2002 against the lorry driver and the appellant, aged 40 years, was earning Rs.4,000/- per month from agriculture and milk vending. In spite of treatment at Kamineni hospital at an expense of Rs.55,000/-, he did not fully recover and hence, he claimed a compensation of Rs.2,00,000/-. While the owner of the lorry remained ex parte, the insurer filed a counter denying the allegations of the claimant and contending that there was no valid driving licence for the lorry driver and there was collusion between the owner of the lorry and the claimant. The claim was contended to be bad for non-joinder and mis-joinder of parties in the absence of the owner and insurer of the motor cycle. The claimant was alleged to have contributed by his negligence to the accident. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation and examined P.Ws.1 to 3 and marked Exs.A.1 to A.11 and B.1 during the course of enquiry. The Tribunal rendered the impugned award firstly accepting the evidence of the injured P.W.1, corroborated by Ex.A.1 first information report and Ex.A.2 charge-sheet in the absence of any contrary evidence for the respondents, to conclude that the rashness and negligence of the driver of the lorry caused the accident. The Tribunal in assessing the quantum of compensation payable by the owner and insurer of the lorry in view of Ex.B.1 insurance policy, referred to the claims of P.W.1 and the evidence of orthopaedic surgeon as P.W.2. The Tribunal further referred to the evidence of P.W.3 who certified the permanent disability suffered by the injured to be 40%. The Tribunal further noted that the claimant had received Rs.10,500/- as compensation from New India Assurance Company towards the damage to his motor cycle, under which head, therefore, no compensation need be awarded herein. The Tribunal further referred to the surgeries undergone by P.W.1 and in respect of the five fractures, which were received by P.W.1, the Tribunal found the medical bills Ex.A.6 to be totalling only to Rs.24,247.65 ps. In respect of the compensation towards permanent disability, the Tribunal considered grant of a lump sum compensation of Rs.80,000/- to be reasonable in the absence of any definite evidence about the income being received from the cultivation of Ac.8.00 of land by P.W.1. The Tribunal also considered it appropriate to award Rs.20,000/- towards medicines, treatment, etc., and thus, granted a total compensation of Rs.1,00,000/- with interest at 7.5 per cent per annum from the date of the petition till the date of realization. The claimant is before this Court with this appeal contending that the 40% disability spoken to by P.Ws.2 and 3 was not properly appreciated and the medical bills were not properly considered leading to the grant of lesser compensation than that claimed. Therefore, he desired the balance compensation as claimed to be awarded. Heard Sri M. Madhava Reddy, learned counsel for the appellant and Sri Kota Subba Rao, learned counsel for the 2nd respondent-insurer, while the 1st respondent-owner of the lorry remained unrepresented before this Court. In so far as the finding of the Tribunal about the responsibility of the lorry driver for the accident due to his rash and negligent driving and the consequential liability of the owner and insurer of the lorry to jointly and severally compensate the claimant is concerned, there was no challenge by either respondent by way of cross-appeal or cross objections and therefore, the only question left for consideration is the quantum of just and adequate compensation to which the claimant is entitled. Though the claimant was stated to be an agriculturist owning Ac.8.00 of land, who is also doing milk vending business, and as the Tribunal also rightly noted, there was no definite evidence of the probable income, which the claimant might have been receiving from his activities while meeting the agricultural expenses and the expenses for maintenance of milch cattle. In the absence of any indication from any evidence on record, the minimum income presumed by the Second Schedule to the Motor Vehicles Act, 1988 as the income that can be presumed to be received even by a non-earning person, can be taken as the basis for assessing the loss of earning capacity due to 40% permanent disability suffered by P.W.1 according to the medical experts P.Ws.2 and 3 and as stated in Ex.A.4 disability certificate. If the appropriate multiplier applicable to the age of P.W.1 at 40 years is 15 as per Sarla Verma v. Delhi Transport Corporation of India[1] and if the claimant is deemed to have suffered 40% loss of earning capacity in proportion to 40% physical permanent disability suffered by him, the amount payable under that head would come to Rs.90,000/-. For the five fractures suffered by him, even if the minimal damages under the Second Schedule to the Motor Vehicles Act, 1988 were to be taken as the basis, Rs.25,000/- are to be paid towards pain and suffering. Ex.A.6 bills, even according to the Tribunal, were to a tune of Rs.24,247.65 ps. and together with the expenses which would have been necessarily incurred without any bills, Rs.25,000/- can be safely awarded towards the expenses incurred for medicines and treatment. In addition to that, the claimant would have, undoubtedly, incurred some more expenses for attendant charges, transport, damage to clothing and other inevitable expenses, which can be assessed at about Rs.10,000/- and if so, the claimant would have been entitled to a sum of Rs.1,50,000/- towards just and adequate compensation from both the respondents. The amount of Rs.1,00,000/- granted by the Tribunal cannot, therefore, answer the necessity to grant just and adequate compensation. The award has to be, therefore, revised accordingly. Coming to the interest payable on the enhanced portion of compensation, in view of the length of time for which such interest has to be paid by the insurer, a custodian of public funds, the same can be limited to 6 per cent per annum, while the interest granted at 7.5 per cent per annum on the original compensation needs no disturbance, as it is not shown to be deviant from the then prevailing rate of interest. Therefore, the award, dated 25-10-2005 in O.P. No.122 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Nalgonda, dated 25-10-2005 is modified by granting a further compensation of Rs.50,000/- (Rupees fifty thousand only) with interest thereon at 6 per cent per annum from the date of the petition till the date of realization in addition to the compensation already awarded by the impugned award and the civil miscellaneous appeal is allowed accordingly in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 20-09-2011 Svv [1] 2009 ACJ 1298