IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE TENTH (10TH) DAY OF JUNE, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.462 of 2010 Between: APSRTC, rep. by its Managing Director, Hyderabad & another … Appellants And: K Koteshwar … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY MA CMA No.462 of 2010 JUDGMENT: This appeal is directed against the order dated 23.10.2007 in OP No.2210 of 2005 on the file of the MACT cum Chief Judge, City Civil Court, Hyderabad, wherein the claim application filed by the respondent herein was allowed, awarding compensation of Rs.3,00,000/- with interest at 6% per annum from the date of petition. 2. Heard both sides. Perused the record. 3. The respondent herein filed claim application seeking compensation of Rs.3 lakhs for the injuries sustained by him in the motor vehicle accident that occurred on 07.09.2004. According to him, on that day he was returning from Srisailam in APSRTC bus bearing No.AP 10 Z 9604 and on account of the rash and negligent driving of the bus by its driver, the bus dashed against the stationed lorry bearing No.ADW 5355 from behind. The claimant sustained multiple fracture injuries in the accident and he was shifted to Government Hospital, Kalwakurthy and from there he was shifted to NIMS Hospital, Hyderabad, where he was inpatient from 07.09.2004 to 02.10.2010, during which period, he underwent two operations. According to the claimant, he was aged 38 years, doing business and earning Rs.4000/- per month and on account of the injuries sustained in the accident, he lost his future earning capacity. The appellant herein- APSRTC filed counter, opposing the claim, denying their liability. 4. The Tribunal framed the following issues for trial. i) Whether the accident resulting in injuries to the petitioner occurred owing to the rash and negligent driving of the driver of the bus bearing No.AP 10 Z 9604? ii) Whether the petitioner is entitled for compensation and, if so, to what amount and from whom? iii) To what relief? 5. During enquiry, the claimant was examined as PW.1 and Dr. S Narsing Rao, who issued disability certificate as PW.2 and marked Exs.A.1 to A.9. No oral or documentary evidence was adduced by the appellants herein. 6. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the bus bearing No.AP 10 Z 9604 by its driver. The Tribunal further held that the claimant is entitled for compensation of Rs.4,05,000/-, but restricted the same to Rs.3,00,000/- which is claimed by the claimant. Aggrieved by the said award, APSRTC preferred the present appeal. 7. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the bus by its driver is not seriously challenged. The main contention of the learned counsel for the appellants-RTC is that the Tribunal erred in taking the income of the claimant at Rs.2500/- per month, without there being any basis for the same. He would further contend that the extent of permanent disability taken by the Tribunal into consideration on the basis of Ex.A.5 certificate is on higher side. 8. Learned counsel for the respondent-claimant on the other hand would seek to justify the award on the ground that the claimant was doing business and the income of Rs.2500/- taken by the Tribunal is just and reasonable and the percentage of the disability is taken at 50% based on the medical evidence of PW.2 coupled with Ex.A.5. 9. The evidence on record shows that the claimant suffered six fracture injuries and he was initially taken to the Government Hospital, Kalwakurthy and from there he was shifted to NIMS Hospital, Hyderabad. Ex.A.3 wound certificate shows the nature of the injuries sustained by the claimant. It also shows that he was admitted as inpatient in NIMS Hospital on 07.09.2004. Ex.A.4 discharge record shows that the claimant underwent two surgeries on 07.09.2004 and 20.09.2004 at NIMS and was discharged on 02.10.2004. 10. The Tribunal awarded a sum of Rs.1,15,000/- as compensation for pain and suffering, which is rather on the higher side. As per the II Schedule of the Motor Vehicles Act, for each grievous injury, a sum of Rs.5000/- and for each simple injury Rs.1000/- can be awarded. The claimant sustained six fracture injuries and as such, he is entitled for a sum of Rs.30,000/- towards pain and suffering. The Tribunal awarded a sum of Rs.60,000/- towards medical expenses based on the medical bills Ex.A.6, which does not call for any interference. 11. According to the claimant he was doing business and earning Rs.4000/- per month, but the claimant did not however adduce any evidence whatsoever to show that he was doing any business at all and getting any income there from. In the absence of any such evidence, the claim of the respondent that he was doing business and getting Rs.4000/- per month remains totally unsubstantiated. The Tribunal, however has taken the notional income of the claimant at Rs.2500/-, for which also there is no basis. As per the II Schedule, the notional income of a person in case of non-earning shall be taken as Rs.15000/- per annum. In the present case, as the claimant has not adduced any evidence to show that he was earning any income, the income of the claimant can be taken at Rs.15,000/- per annum as per the II Schedule. As per the medical evidence of PW.2 coupled with Ex.A.5 permanent disability certificate, the claimant suffered the disability to the extent of 50%. No doubt, PW.2 was not the doctor, who treated the claimant at NIMS Hospital, however he testified that he has gone through the previous medical record of the claimant and he also advised the claimant to under go X-rays and based on the clinical and radiological examination, he assessed the disability of PW.1 at 50%. PW.2 further stated that on account of the fracture injuries, the claimant developed vascular microsis of the head of the left femur and osteoarthritis of the left hip restricting the movements. He further deposed that the patient is also having stiffness of left ankle and the disability is permanent and partial and the patient is advised to use hand stick. He also deposed that the patient is having difficult to squat or to attend to hard work. In view of the medical evidence of PW.2, who issued Ex.A.5 disability certificate after clinical and radiological examination, the assessment of permanent disability made by him at 50% cannot be considered to be on the higher side having regard to the fact that the claimant suffered as many as six fracture injuries, which have led to permanent restriction in the movements of the joints, legs and hip. As the percentage of the disability is at 50%, the loss of 50% earnings comes to Rs.7500/- per annum and applying the relevant multiplier of 14, as the claimant was aged 38 years at the time of accident, the loss of earning capacity on account of the said permanent disability would come to (Rs.7,500/- x 14) Rs.1,05,000/-. 12. The discharge summary Ex.A.4 shows that the claimant was inpatient in the hospital for about a month, during which period he underwent two surgeries. The claimant would have engaged the services of some one to assist him during the period of hospitalization in view of the fact that he suffered as many as six fracture injuries. The claimant is therefore, held entitled for Rs.10,000/- towards attendant charges. The evidence on record also shows that the claimant was initially taken to the Government Hospital, Kalwakurthy and from there he was shifted to NIMS Hospital and the medical evidence on record shows that subsequent to the discharge from the hospital also, the claimant has to go to NIMS for periodical check up from his native place Kalwakurthy. The claimant is therefore held entitled for a sum of Rs.10,000/- towards transport charges, instead of Rs.2000/- as awarded by the Tribunal. The claimant is also held entitled for Rs.10,000/- towards extra nourishment and other expenses, having regard to the length of hospitalization and the number of surgeries he underwent, instead of Rs.3000/- as awarded by the Tribunal. The claimant is also held entitled for Rs.25,000/- towards loss of amenities as he has to necessarily use the hand stick for ever and seek the assistance of some one for his transportation on account of the restrictions in the movements of the legs owing to the permanent disability. 13. In the circumstances, the claimant is held entitled for a total compensation of Rs.2,50,000/- with interest at 6% per annum from the date of petition, till the date of realization. The impugned award is modified accordingly. 14. In the result, the appeal is allowed to the extent stated above. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 10.06.2011 bss