IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1950 of 2002 Between: G. Ashaiah .. Appellant AND M/s. India Extrusion & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1950 of 2002 JUDGMENT: This appeal is directed against the award in O.P.No.119 of 1995, on the file of the Motor Accidents Claims Tribunal-cum- I Additional Chief Judge, City Civil Court, Secunderabad, dated 28.06.1997. 2. The appellant was going on cycle on 13.04.1995 at about 1.15 p.m. from his house towards Patancheru on the left side of the road when car No.BNA 5722 coming in opposite direction at high speed and driven rashly and negligently dashed against him. The appellant sustained fractures to his right leg, shaft of femur and other injuries and he was treated at Sri Sai Maternity Nursing Home, Patancheru, and later in Gandhi Hospital, Secunderabad. Ramachandrapuram Police registered a crime and the appellant, after discharge from Gandhi Hospital on 20.04.1995, had a surgery in a private hospital where nails were inserted in his right leg. He spent Rs.15,000/- for the surgery and his cycle and clothing were damaged in the accident. He claimed to be earning Rs.2,000/- per month and other allowances while working in Nagarjuna Steel Private Limited at Patancheru and he claimed to have been confined to bed for six months apart from suffering a permanent disability even after treatment. He claimed that his employer did not pay any amount to him and hence, sought for a compensation of Rs.1,00,000/- with interest and costs against the owner and insurer of the car. 3. The owner of the car denied the claims of the appellant, more particularly about his age, employment and monthly income and he also denied the allegations of the petitioner about the accident, injuries and the treatment. The first respondent also claimed even the number of the car to have been wrongly mentioned and his car to have been insured with the second respondent. The insurer/the second respondent contested the claim contending that the driver of the car had to be impleaded in the claim and the insurer denied all the claims of the claimant/appellant and desired the claim to be negatived. 4. The Tribunal framed issues about the manner of the accident, the injuries sustained by the appellant, the subsistence of a valid insurance for the car and the just and adequate compensation which the appellant may claim. 5. During the enquiry, the Tribunal examined P.Ws.1 and 2 and marked Exs.A-1 to A-13 and Ex.B-1. 6. The Tribunal rendered the impugned award firstly accepting the evidence of the injured P.W.1, corroborated by Ex.A-12-certified copy of the First Information Report and Ex.A-13-Certified copy of the Charge Sheet and concluded that the accident occurred due to the rash and negligent driving of the driver of the car. The Tribunal, referring to the evidence of the injured P.W.1 and the Doctor-P.W.2, concluded that Exs.A-1 to A- 3 probablised by P.Ws.1 and 2 prove that the appellant sustained a severe injury, incurred expenditure for the treatment and was still suffering from disability. The Tribunal also concluded that it was car No.DNA 5722 which was insured with the second respondent that was involved in the accident. The Tribunal noted that the evidence of P.Ws.1 and 2 and Exs.A-1 to A-3, A-10 and A- 11 show that P.W.1 was suffering from 45% disability and that the appellant working as a Supervisor on contract basis in Manohar Engineering and Fabrication Works at Patancheru was shown to be drawing Rs.2,000/- per month from Nagarjuna Steel Private Limited at Patancheru as per Ex.A-9-Salary Certificate issued by Manohar Engineering and Fabrication Works at Patancheru. While there was contradiction between the pleadings and the evidence, the Tribunal, therefore, assessed the monthly income only at Rs.1,500/- and while accepting Exs.A-4 to A-6 and A-8, the Tribunal reduced the cycle repairing charges by Rs.400/- and awarded the remaining sums claimed by the claimant. The Tribunal awarded Rs.9,000/- towards loss of earnings for six months and towards the loss of earning capacity, medical expenses, special diet, etc., the Tribunal granted a consolidated sum of Rs.50,000/-. In total, the Tribunal granted a compensation of Rs.66,900/- payable with interest at 12% per annum from the date of the petition till the date of realization and proportionate costs against both the respondents jointly and severally. 7. The appellant is before this Court claiming that the Tribunal should have noted that the appellant was not even in a position to walk properly and is limping and his income should have been accepted as Rs.2,000/- per month and applying an appropriate multiplier 16.51, the Tribunal should have assessed the future loss of earnings at not less than Rs.1,19,000/-. The appellant also contended that he should have been granted Rs.15,000/- towards pain and suffering and another Rs.15,000/- towards loss of amenities of life and Rs.5,000/- towards extra nourishment. Hence, he sought for grant of the remaining Rs.33,100/- also with the same interest and costs. 8. The learned counsel for the appellant and the second respondent/insurer are heard, while none entered appearance before this Court for the first respondent. 9. The conclusion of the Tribunal about the responsibility of the car driver for the accident with his rash and negligent driving is not challenged by any party and similarly, the subsisting insurance for the car owned by the first respondent with the second respondent is also not in dispute. Therefore, the liability of both the respondents jointly and severally to justly and adequately compensate the injured claimant cannot be in dispute. 10. Coming to the assessment of compensation, the Tribunal appears to have been conservative in this regard and the appellant is stated to be aged 28 years by the time of the accident which claim is not contradicted by any evidence and he claimed to be working in Nagarjuna Steel Private Limited at Patancheru according to the petition, while Ex.A-9-Salary Certificate filed by him mentioned that he was working as a Supervisor in Manohar Engineering and Fabrication Works at Patancheru. The monthly salary was claimed to be Rs.2,000/-. Even assuming that there was a contradiction between the pleadings and Ex.A-9-Salary Certificate about the employer of the appellant, still the able-bodied appellant, engaging himself in a suitable occupation so as to maintain himself and his family, cannot be in dispute and he claimed on oath that Ex.A-9-Salary Certificate was issued by his employer. In the absence of any contrary evidence, the same need not have been rejected and even otherwise, even if the minimum wages payable to unskilled workers at about the relevant time were to be taken as the basis and in view of the appellant being claimed to be engaged in a Supervisory job, his claim that he was earning Rs.2,000/- per month cannot be considered to be such an exaggeration which deserved rejection. As such, his monthly income can be safely accepted to be about Rs.2,000/- per month at the relevant time. If he was earning Rs.2,000/- per month at the relevant time and if he was completely confined to bed due to the accident for a period of six months which claim was accepted by the Tribunal, the loss of earnings for the period would be Rs.12,000/-. 11. The appellant also claimed under Exs.A-4 to A-6 and A-8 to have incurred expenses towards medicines, repairs to the cycle, etc., which were accepted by the Tribunal except to the extent of Rs.400/- towards repairs to the cycle and the same were taken into account and rounded off to the nearest figure. An amount of Rs.8,500/- needed to be granted towards the same. So far as the permanent disability left for the petitioner due to the injury to the leg is concerned, there is medical evidence of P.W.2 corroborated by Exs.A-1 to A-3 and the Tribunal accepted that the appellant was left with a permanent disability in this regard which was stated to be 45%. 45% permanent disability in respect of the leg has to be compensated by a reasonable sum, which can be a sum of Rs.20,000/-. 12. The claimant would also be entitled to the effect of the permanent disability on his capacity to earn in future and keeping in view his avocation as a Supervisor and the disability suffered by him in his leg, the assessed 45% disability in respect of the leg can be reasonably taken as functional disability of 10% with reference to the whole body vis-à-vis, the occupation of the injured. If the monthly salary of the injured were to be taken at Rs.2,000/- as claimed by him, for the age of 28 years, the appropriate multiplier applicable would be 17 and if it were 100% loss of earning capacity, the same comes to about Rs.4,00,000/- and 10% of the same would have been assessed at Rs.40,000/-. 13. In addition, the claimant would also be entitled to the attendant’s charges, extra nourishment, damage to clothing and other inevitable expenses and also to the loss of amenities of life, etc., and all those miscellaneous heads of pecuniary and non-pecuniary damages may be compensated by a lump sum amount of Rs.10,000/-. While assessing the compensation in such cases, an element of guess and estimate becomes inevitable and on a comprehensive view of the material on record, grant of a compensation of Rs.90,000/- in total may be grant of adequate and just compensation commensurate with the consequences of the accident on the appellant. 14. While the compensation should be enhanced to that extent, in view of the length of time for which interest has to be paid by the respondents on the enhanced portion of the compensation, the interest can be confined to 6% per annum and proportionate costs, of course, shall follow suit. The appeal has to be ordered accordingly. 15. In the result, the award, dated 28.06.1997, in O.P.No.119 of 1995, on the file of the Motor Accidents Claims Tribunal-cum-I Additional Chief Judge, City Civil Court, Secunderabad, is modified by granting a further compensation of Rs.23,100/- with interest thereon at 6% per annum from the date of the petition till the date of realization and proportionate costs in addition to the compensation already awarded by the Tribunal. 16. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 1st February, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.1950 of 2002 Date: 1st February, 2011 KL