HON’BLE SRI JUSTICE B.N. RAO NALLA C.M.A. No. 3921 of 2002. DATED:09.09.2010 Between: Konijeti Venkataramayya .. Appellant And 1. Shaik Fakeer Ahmed 2. The United India Insurance Company Ltd. .. Respondents JUDGMENT: This Civil Miscellaneous Appeal is directed against the order dated 16.05.1991 made in O.P. No. 390 of 1989 by the Motor Accident Claims Tribunal-cum-Additional District Judge, Ongole, whereby the appellant-claimant was awarded a total compensation of Rs.17,000/-. Out of which, the 2nd respondent-Insurance Company was held to be liable to pay Rs.12,000/- under no fault liability since in the case of permanent disablement its liability is limited only up to Rs.12,000/-, The facts of the case in brief are that on 17.07.1989, while the appellant-claimant along with his wife was travelling by a mini lorry bearing No. ABG-58 belonging to the 1st respondent with luggage of rice of 25 kgs. from Poddili to Darsi and when the vehicle reached near Kothareddypalem, the driver of the Mini lorry drove it at high speed and in a rash and negligent manner and lost control over it, as a result, the vehicle turned turtle. Consequently, all the occupants of the vehicle sustained multiple injuries and the appellant suffered fracture to right hand besides sustaining other injuries. The appellant was treated at Government Civil Hospitals, Ongole and Guntur as in- patient for 20 days. Due to the fracture to his right hand he is unable to carry on with barber’s avocation and play pipe and drum in marriages. Hence, he filed the claim petition seeking compensation of Rs.50,000/-. On the other hand, the 2nd respondent - Insurance Company inter alia denied the averments made in the claim petition including rash and negligent driving on the part of the driver of the Mini lorry No. ABG-58, the age, avocation and monthly earnings of the appellant- petitioner and the nature of injuries sustained by him. The 2nd respondent specifically denied that the driver of the accident vehicle was holding a valid driving licence at the time of accident. On the basis of the above pleadings, the Tribunal framed relevant issues for trial. During the course of trial, the appellant got himself examined as PW-1 besides examining PWs.2 to 5, the other injured in the accident. PW5 is the Special Civil Assistant Surgeon, Government Hospital, Ongole. On appreciation of both oral and documentary evidence, the Tribunal answered the first issue holding that the driver of minim lorry No.ABG-58 was rash and negligent in driving the vehicle and was responsible for the accident. With regard to the second issue, the Tribunal, while taking into consideration the fact that the appellant is a barber by profession and was earning income by playing pipe and drum at marriages, and also taking into consideration his own evidence to the effect that wound certificate was not filed and the Doctor, who treated, was not examined, gave a finding that the appellant was aged 50 years at the time of accident. The Tribunal also observed that since the appellant was treated as in-patient in Government General Hospital, Guntur for 20 days on account of fracture injury sustained by him, fixed the average loss of his earnings for two months during which period he would have been immobilized, at Rs.1000/- i.e., Rs.500/- for each month and the Tribunal also fixed the loss of earnings on account of permanent disability at Rs.100/- per month. Thus, it has calculated the loss of annual earnings Rs.100 x 12 = Rs.1200/- and after fixing his age roughly and fixing his average life span at 70 years and considering the pecuniary loss for ten years, granted a total pecuniary compensation amount at Rs.1000/- + (Rs.12,00/- x 10) = Rs.13,000/- . In addition thereto, it has fixed Rs.4000/- towards pain and suffering, discomfort, etc. Thus, the Tribunal, relying on the evidence of PWs.1 to 4 and 5, the Doctor, who treated the appellant and deposed that the appellant had suffered 50% disability, answered the second issue in favour of the appellant by granting a total compensation of Rs.17,000/-. The learned counsel for the appellant contends that the Tribunal failed to appreciate the evidence of PW5 - medical witness in proper perspective, and in fact, PW5 treated the appellant for the fracture injury suffered by him in the accident. The learned counsel submits that PW5, in clear terms stated in his evidence that X-ray of right forearm of the appellant was taken and it revealed fracture of both bones of forearms on the right side and the disability on account of the same is 50% and the movement of right hand elbow joint is restricted due to fixed flexion deformity and the appellant could not do normal work as he was doing previously i.e., work of a barber as well as playing pipe and drum at marriage. Therefore, the learned counsel contends that the Tribunal ought to have allowed the claim petition in toto, granting compensation of Rs.50,000/-. Heard the learned counsel for the appellant and perused the material placed on record. Since the appellant-claimant is sated to be a barber by profession and was also playing pipe and drum at marriages, the earnings fixed by the Tribunal for two months at Rs.1000/- appears to be quite unreasonable. Therefore, this amount, in the opinion of this Court, may be and is hereby enhanced to Rs.2000/- i.e. Rs.1000/- per month from each avocation. So far as the loss of earnings on account of permanent disability fixed at Rs.100/- per month is concerned, no doubt, it appears to be absolutely unreasonable and the same may be and is hereby enhanced to Rs.300/- per month. Thus, the loss of annual earnings has got to be calculated at Rs.300/- x 12 = Rs.3,600/- and if the pecuniary loss is considered for ten years, it comes to Rs.3,600/- x 10 = Rs.36,000/-. Thus, a total compensation of Rs.42,000/- (Rs.2,000/- + Rs.36,000/- + Rs.4,000/-) is granted by this Court. However, considering the decision reported in Sarala Varma case and other decisions of the Apex Court, it is thought appropriate to reduce the rate of interest at the rate of 12% p.a. awarded by the Tribunal to 7.5%, and the same is hereby reduced on the enhanced compensation and the rest of the order passed by the Tribunal, in other aspects of the matter, remains unchanged. With the above modification, this Civil Miscellaneous Appeal is disposed of. No order as to costs. ________________ B.N.RAO NALLA, J 9th September, 2010 isl / bcj