THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.100 of 2008 & X OBJECTIONS No. 21031 of 2011 COMMON JUDGMENT: This appeal is directed against the order, dated 14.02.2007, in O.P.No.777 of 2006 on the file of the learned Chairman, Motor Accident Claims Tribunal-cum- District & Sessions Judge, Eluru, West Godavari District, wherein the said claim application filed by the 1st respondent herein, was allowed in part awarding compensation of Rs.3,40,346/- with interest @ 7.5% p.a. from the date of the petition. 2. Heard both sides. Perused the record. 3. 1st respondent herein filed the claim application seeking compensation for the injuries sustained by him in the motor vehicle accident that occurred on 18.07.2005. According to the claimant, on that day at about 8 a.m. while he was going to CVR Engineering college of Vatluru, Pedapadu mandal, an Ambassador car bearing No.AP 37T 7755, driven in a rash and negligent manner by its driver, dashed against him resulting in grievous injuries. According to the claimant, he was aged 19 years and was prosecuting his studies and also working as a part-time teacher and earning Rs.4000/- per month. 4. The owner of the vehicle remained ex parte before the Tribunal. The driver and the insurer of the vehicle filed counters opposing the claim and denying their liability to pay the compensation. 5. During enquiry before the Tribunal, P.Ws.1 to 5 were examined and Exs.A1 to 15 were marked on behalf of the claimant. R.W.1 was examined and Ex.B.1-copy of the policy was marked on behalf of the respondents. 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 Ambassador car by its driver. The said finding is not seriously challenged by the appellant. The Tribunal however held that the claimant is entitled for total compensation of Rs.3,40,436/-. Accordingly, an award was passed for the said amount with interest @ 7.5% p.a. Aggrieved by the same, the insurer filed the present appeal and not satisfied with the amount the claimant filed cross objections seeking enhancement. 7. According to the claimant, he suffered fracture of right femur, which resulted in shortening of the leg. In support of the same, he examined P.W.2-Civil Assistant Surgeon, Government Headquarters hospital, Eluru, who issued the disability certificate-Ex.A14 stating that P.W.1 sustained physical partial and permanent disability of 40%. According to P.W.2, petitioner can walk with limping and it is difficult to squat on the floor. P.W.3 is a practicing Orthopedic Surgeon at Kay Vee hospitals, Eluru, who treated P.W.1 for the injury of fracture of right femur. As per the evidence of P.W.3, coupled with Ex.A2-wound certificate and Ex.A8-O.P.card, claimant was admitted in the hospital on 18.07.2005 and underwent surgery for nailing on 02.07.2005 and he was discharged on 05.08.2005. The claimant was again in the hospital on 08.10.2005 for removal of the screw and was discharged on 14.10.2005. Thus, the claimant was in the hospital for a total period of about 25 days. 8. The Tribunal awarded a sum of Rs.25,000/- towards fracture injury of right femur. As per the II Schedule of the Motor Vehicles Act, 1988, which can be taken as a guide, the claimant is entitled for a sum of Rs.5000/- for the grievous injury. The wound certificate-Ex.A2 does not show that the claimant has sustained any other injury. The Tribunal awarded Rs.49,346/- towards medical expenses based on Exs.A6 and A7-bunch of medical bills and the same does not call for any interference and it can be rounded off to Rs.50,000/-. The Tribunal awarded a further sum of Rs.10,000/- towards pain and suffering, which is superfluous. The Tribunal awarded Rs.3000/- towards attendant charges and Rs.3000/- towards extra nourishment and the said amounts are considered to be just and reasonable, having regard to the nature of the injuries sustained by the claimant and also that he was in the hospital for about 25 days as an inpatient. 9. The major item of compensation awarded by the Tribunal is a sum of Rs.2,50,000/- towards loss of earning capacity on account of the permanent disability. The medical evidence on record shows that the fracture of the right femur has resulted only shortening of leg on account of which the claimant can walk with limping. In the cross- examination, P.W.2, who issued the disability certificate- Ex.A14, states that except limping the claimant can walk freely. He did not state in the evidence as to the length of the shortening of the leg. His evidence is also silent about the impact of the said disability over the loss of earning capacity. According to the claimant, he was studying and he was also doing part-time job in Deepthi Residential school and was earning Rs.4500/- per month by giving tuitions to the students. In that connection, he examined P.W.3-Director of the Residential school, who issued a letter-Ex.A13. 10. In the cross-examination, P.W.3 admitted that the claimant was not among the teaching staff of the school. According to P.W.3, the claimant used to collect tuition fee from the students directly and it is only his assumption that the claimant is earning Rs.4500/- per month. Thus, it is not as though the claimant was employed by the school and was paid any salary of Rs.4500/- per month, and the alleged income of the claimant by giving tuitions to the students is not borne out by the record or register of the school. P.W.1 himself admitted in the cross-examination that he has not filed any documentary proof to show that he was rendering tuitions and earning Rs.4500/- per month. The Tribunal has not made any assessment of the loss of earning capacity on account of the permanent disability sustained by the claimant. The Tribunal has not indicated in the impugned order as to how the amount of Rs.2,50,000/- was arrived at. In fact, the impugned order shows that the said amount was awarded towards disablement and not for any loss of earning capacity. 11. Learned counsel for the appellant relied upon a decision reported in RAMPRASAD BALMIKI v. ANIL KUMAR JAIN AND OTHERS[1], wherein the apex Court held that mere suffering of fracture resulting in shortening of leg to some extent does not come within the purview of permanent disablement. 12. In the above case also, the claimant who was a driver, sustained fracture of right femur and right tibia and underwent three operations and the right leg of the claimant got shortened. The doctor is stated to have declared the claimant unfit to drive the vehicle and consequently an order of premature retirement from service on medical grounds was passed by the authorities. The apex Court in the above case observed that the claimant was guilty of suppression of fact and he has not disclosed the other benefits received pursuant to the order of retirement on medical invalidation. He has also not disclosed as to the amount of pension. He has also not disclosed as to whether any of his dependents got employed on medical grounds on medical invalidation and the Civil Surgeon, who examined the claimant and issued disability certificate, opined that the claimant suffered permanent disability of 40%. 13. The apex Court observed that some shortening of the leg can be made up with specially manufactured shoes and a person can even drive a vehicle even with artificial limbs and the claim for 100% of permanent disability must be supported by reason and no such material, justifying the claim, was brought on record. 14. In the present case, though the evidence on record shows that the claimant suffered physical disability of an extent of 40%, there is no assessment of the loss of earning capacity and the Tribunal has also not indicated as to how the sum of Rs.2,50,000/- was arrived at and on what basis. 15. Learned counsel for the claimant would seek to rely upon a decision of a Division Bench of this Court in B.RAMULAMMA AND OTHERS v. M/S VENKATESH BUS UNION, REP. BY A.M.VELU MUDALIYAR, BANGALORE AND ANOTHER[2] , wherein it was observed that the notional income of a B.E. graduate can be fixed at Rs.12,000/- per month. 16. In the present case, admittedly, the claimant was only in the first year of Engineering course and was not a B.E. graduate. The specific case of the claimant is that he has been doing part-time job as a tutor and earning Rs.4500/- per month but the same has not been substantiated by any acceptable evidence. On the other hand, learned counsel for the claimant, on instructions, would submit that the claimant has since secured a job in a bank and is working as a bank employee. Thus, it is not as though the claimant has suffered any loss of earning capacity on account of the physical disability. In the circumstances, though the claimant is entitled to some compensation for the permanent disability suffered by him by way of loss of amenities of life, he is not entitled to any compensation towards loss of earning capacity inasmuch as he has not suffered any loss and on the other hand is gainfully employed in a bank notwithstanding the injury sustained in the accident. Simply because there has been shortening of leg resulting from the injury, which even if taken as permanent disability to an extent of 40%, it has not lead to any loss of earning capacity for the claimant. 17. In the circumstances, claimant is held not entitled for any compensation towards loss of earning capacity. However, he is held entitled for compensation towards loss of amenities of life, including loss of matrimonial prospects, as it cannot be said that his matrimonial prospects would be as bright as they would have been in the absence of the permanent disability. In the circumstances, it is considered just and reasonable to award a sum of Rs.1,00,000/- towards loss of amenities of life, including loss of future prospects. The claimant is therefore entitled for a total compensation of Rs.1,61,000/- with interest @ 6% p.a. from the date of the petition. The impugned order is modified accordingly. 18. It is stated that the appellant insurer has deposited half of the amount awarded by the Tribunal in pursuance of the interim order of this Court, dated 28.09.2007, and the same has been withdrawn by the claimant. It is held that the amount already deposited and withdrawn by the claimant may not be recovered by the appellant-insurer. It is open to the appellant insurer to recover the balance amount from the owner of the vehicle. 19. In the result, appeal is allowed to the extent stated above and the cross objections are dismissed. _______________________ G.V.SEETHAPATHY, J 21st October, 2011 Tsy [1] 2008 (6) ALD 82 (SC) [2] 2009 (60 ALT 784 ( D.B.)