IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2209 OF 2002 Between: Md. Gulam Moinuddin ..... Appellant And V.V.J. Prasad & another …Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2209 OF 2002 JUDGMENT: The Civil Miscellaneous Appeal is directed against the award in O.P.No.279 of 1997, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Saroornagar, Hyderabad, dated 15.05.1999. 2. The claimant was crossing the road at Gachibowli on 16.10.1996 at about 3.00 p.m. when the motorcycle bearing No.AEX 2169, driven rashly and negligently, dashed against him. P.C.1770 of Chandanagar Police Station took him to the Osmania General Hospital from the scene where he was treated for fracture of the left leg. The claimant took treatment outside later and hence, made the claim for Rs.70,000/- against the owner and insurer of the motor cycle. 3. The first respondent claimed to have sold away the motor cycle 13 years earlier, but admitted that no transfer was effected. 4. The second respondent-insurer put the claimant to strict proof of his allegations and contended the claim to be excessive. 5. On such pleadings, the Tribunal framed issues on the responsibility for the accident, the receipt of injuries by the claimant during the accident and the entitlement of the claimant to compensation. 6. During the enquiry, the Tribunal examined P.W.1 and marked Exs.A-1 to A-10, while the respondents did not adduce any evidence. 7. The Tribunal rendered the impugned award firstly accepting the evidence of P.W.1 corroborated by Ex.A-1-First Information Report about the rash and negligent driving of the motor cycle being the cause for the accident. Then referring to Exs.A-2 to A-5, the Tribunal felt that the nature of the injury, the pain and suffering, etc., will deserve a compensation of Rs.10,000/- in the absence of any disability. The Tribunal, therefore, granted a compensation of Rs.10,000/- with interest at 12% per annum and proportionate costs. 8. The claimant challenged the said award contending that the compensation awarded was meagre, unreasonable and unjust and the award was made without considering all the documents produced and proved by the claimant. 9. Heard Sri M. Praveen Kumar, learned counsel for the appellant and Sri B. Devanand, learned standing counsel for the second respondent-insurer. The appeal against the first respondent, owner of the motor cycle, was dismissed for default on 21.02.2002. 10. The findings of the Tribunal about the responsibility of the driver of the motor cycle for the accident with his rash and negligent driving and the absence of proof of any transfer of the vehicle of the first respondent and the subsisting insurance of the vehicle with the second respondent are not challenged by any party and, therefore, the joint and several liability of both the respondents to justly and adequately compensate the claimant is not in question herein. 11. The only point for consideration is the quantum of compensation to which the claimant is entitled. 12. The claimant as P.W.1 stated that he received injuries to his left leg in the accident and produced Ex.A-2-out patient ticket, Ex.A-3-out patient ticket, Ex.A-4-diagnosis report of the Appollo Hospital and Ex.A-5-estimation for treatment in corroboration of his claims. He also produced Ex.A-9-medical bills and Ex.A-6- salary certificate and Ex.A-7-duty absence report. He further produced Ex.A-8-investigation report and Ex.A-10-x-ray films. He claimed that he could not attend the duty for six months. During cross-examination by the second respondent-insurer, the very suggestion that the accident occurred due to the fault of the claimant would suggest that the accident is admitted and the further suggestion that the claimant did not receive any major injury would further suggest that suffering of some injury by the claimant is also admitted. None of the documents produced by the claimant were questioned during cross-examination and therefore, the non-examination of the doctor who treated P.W.1 cannot be termed as fatal as admitted facts need not be proved. 13. Exs.A-2 to A-5 show that the claimant suffered two fractures in his left leg, but even the claimant did not allege that he underwent any further treatment as per the estimation for treatment under Ex.A-5, dated 17.09.1997, suggesting an expenditure of Rs.20,000/- for a further surgery. The duty absence report-Ex.A-7 is as though P.W.1 was absent from duty for six months since the accident, while Ex.A-6-salary certificate is about his being paid a monthly salary of Rs.2,200/- by his employer. Ex.A-8-bills were to a tune of Rs.340/- and the facts probablised by those documents should have been duly considered by the Tribunal in fixing the compensation. 14. If Rs.10,000/- granted by the Tribunal towards pain and suffering were to be considered adequate towards damages under that head, P.W.1 who was stated to be on leave for six months should be compensated for the loss of earnings for the said period. While Ex.A-7-duty absence report and Ex.A-6-salary certificate were not corroborated by examining anybody connected with the employer of P.W.1, taking into account the natural tendency of the claimant to claim as higher a compensation as possible, the monthly income and loss due to absence can be reasonably estimated at half of the claimed amount or Rs.6,600/-. The claimant would have undoubtedly incurred expenses towards extra nourishment, transport, attendant charges, medicines not supplied by the hospital and other incidental expenses even if the treatment at the Osmania General Hospital was free and would have undoubtedly incurred further expenses for the later treatment at the private hospitals. Considering all the pecuniary and non- pecuniary damages to which the claimant may be entitled under various other heads than pain and suffering and loss of earnings, grant of another Rs.3,400/- towards the same and rounding of the compensation to be enhanced to Rs.10,000/- would be entitling the claimant to just and adequate compensation. 15. As the insurer has to pay interest for a long period on the enhanced portion of the compensation, the same can be confined to 6% per annum, while proportionate costs should be awarded. 16. Accordingly, the award in O.P.No.279 of 1997, on the file of the Chairman, Motor Accidents Claims Tribunal-cum-I Additional District Judge, Saroornagar, Hyderabad, dated 15.05.1999, is modified by granting a further compensation of Rs.10,000/- with interest thereon at 6% per annum from the date of the petition till the date of the realization and proportionate costs in addition to the compensation already awarded by the Tribunal by the impugned award and no further directions need be given at this distance of time regarding the disbursement of the compensation. 17. The appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 18th November, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.2209 OF 2002 November 18, 2010. KL