IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FOURTEENTH DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4440 of 2004 Between: Mallam Kanaka Mallaiah .. Appellant AND 1. S. Ravi 2. The Oriental Insurance Co. Ltd. .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4440 of 2004 JUDGMENT: This appeal is directed against the award in O.P.No.1835 of 2001, on the file of the Motor Accidents Claims Tribunal-cum- II Additional Chief Judge, City Civil Court, Hyderabad, dated 09.07.2004. 2. The appellant/claimant was going on a bullock-cart on 03.05.2001 at about 8.00 a.m. carrying paddy bags to the market and at the outskirts of Rangadhampally Village on Rajeev Rahadari, the lorry No.TN 37 3230, owned by the first respondent and insured with the second respondent, being driven rashly and negligently in high speed, dashed the bullock-cart from behind. The claimant claimed to have suffered fractures in the right hand lan oblique, shaft fore arm and right leg of distal radius with intra-anticular extension and multiple injuries all over the body for which he was stated to have been treated in CDR Hospital, Hyderabad till 15.06.2001. He was claimed to have been subjected to surgeries and to be continuing his treatment as an outpatient. Siddipet (R) Police registered Crime No.27 of 2001 about the incident and hence, he claimed a compensation of Rs.2,50,000/-. 3. While the owner of the lorry remained ex parte before the Tribunal, the insurer put the claimant to strict proof of all his allegations and contended that the liability of the insurer arises only on proof of the lorry driver having a valid driving licence and compliance of other terms and conditions of the insurance policy. 4. The Tribunal framed issues about the responsibility for the accident and the quantum of compensation and during the enquiry, it examined P.Ws.1 and 2 and marked Exs.A-1 to A-10 and B-1. 5. The Tribunal rendered the impugned award firstly concluding the lorry driver to be responsible for the accident with his rash and negligent driving in the absence of any evidence to the contrary for P.W.1 and the documents marked by him. The Tribunal noted the injuries which the claimant suffered and the treatment he had taken and awarded a compensation of Rs.30,000/- for the two fractures, Rs.6,000/- towards pain and suffering, extra nourishment and transport, Rs.45,000/- towards 45% disability certified in Ex.A-8-Disablity Certificate and Rs.2,000/- towards medical expenses with reference to Ex.A-10-Medical Bills. The total compensation of Rs.83,000/- was directed to carry interest at 9% per annum and proportionate costs. 6. The claimant’s complaint in this appeal is about the Tribunal ignoring Ex.A-6-Medical Bill issued by CDR Hospital, Hyderabad and not awarding sufficient compensation for the permanent disability. The claimant, therefore, desired that the entire compensation as claimed be awarded. 7. Heard Sri J. Srinivas Rao, learned counsel representing Sri P. Srinivas Rao, learned counsel for the appellant and Sri Suresh Kumar Routhu, learned counsel representing Sri Bathula Venkateshwara Rao, learned standing counsel for the second respondent/insurer. The owner of the lorry remained unrepresented before this Court also. 8. The conclusion of the Tribunal about the lorry driver’s responsibility for the accident with his rash and negligent driving is unchallenged and has become final. The ownership of the lorry with the first respondent and the existence of a valid and subsisting insurance with the second respondent are not in dispute. The joint and several liability of both the respondents to justly and adequately compensate the injured claimant is, therefore, not in dispute. 9. It is only the quantum of compensation that is in question and the positive claim of the claimant is that he suffered two fractures apart from multiple injuries all over the body and was treated in a Super Specialty Hospital/CDR Hospital, Hyderabad from 03.05.2001 to 15.06.2001 during which period he underwent surgeries for correction of the fractures. The Tribunal found the Accident Register-Ex.A-3 to be disclosing the injuries noted at the time of the claimant’s immediate shift to the Government Community Hospital, Siddipet after the accident and it is only for those two fractures specified in Ex.A-3-Accident Register that the claimant took treatment in a private hospital at Hyderabad later. The evidence of P.W.1 about the treatment he had taken was not contradicted by any evidence for the respondents and P.W.2 who certified about the disability still persisting in the injured limbs under Ex.A-8-Disability Certificate is an independent medical Professional. The uncontroverted evidence of P.W.1 corroborated by Ex.A-2-X-rays, Ex.A-3-Accident Register, Ex.A-4-Medical Certificate, Ex.A-5-Discharge Summary, Ex.A-7-Outpatient Card, Ex.A-9-Medical Prescriptions, etc., provide sufficient justification for an expense of about Rs.60,000/- for the entire treatment covered by Exs.A-6 and A-10, Medical Bills, respectively and awarding only Rs.2,000/- towards medical expenses is an obvious underestimate. The nature of the fractures, the surgeries which the claimant underwent and the period of treatment do not suggest the claimed medical expenses to be exaggerated or excessive and, therefore, the respondents should reimburse the claimant by about Rs.58,000/- more towards medical expenses. 10. While the compensation awarded towards the fractures, pain and suffering, extra nourishment and transport at Rs.36,000/- is not low or unreasonable, the disability certified at 45% by Ex.A-8-Disability Certificate by P.W.2 was attempted to be compensated only by Rs.45,000/- by the Tribunal. The injured is an Agriculturist and in the absence of any evidence showing the lands owned or cultivated by him or the income derived by him therefrom, the minimal income presumed by the Second Schedule to the Motor Vehicles Act, 1988, in case of non-earning persons can be taken as the basis and if he were aged 30 years by the time of the accident as claimed, the appropriate multiplier would have been 17 as per SARLA VERMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER[1]. If so, the total loss of income for the injured could have been about Rs.2,55,000/-. The percentage of disability certified at 45% in respect of two limbs resulting in the claimant walking only with the help of a stick can be reasonably assessed to be causing a disability of 20% in respect of the whole body/the avocation of P.W.1 and if so, the loss of future earning power could have been assessed at Rs.51,000/-. The deficit of Rs.6,000/- also has to be supplied to make good the necessity of just and adequate compensation. 11. Thus, the compensation already awarded needs to be enhanced by Rs.64,000/-, but in view of the length of time for which interest has to be paid on the enhanced compensation, the same can be restricted to 6% per annum, while, of course, awarding proportionate costs on the enhanced compensation also. 12. Therefore, the award, dated 09.07.2004, in O.P.No.1835 of 2001, on the file of the Motor Accidents Claims Tribunal-cum-II Additional Chief Judge, City Civil Court, Hyderabad, is modified by granting a further compensation of Rs.64,000/- 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 by the impugned award. 13. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 14th March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4440 of 2004 Date: 14th March, 2011 KL [1] 2009 ACJ 1298