IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTIETH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.M.A. No.2720 of 2004 Between: Dr. Tirumalasetti Shankar Rao .. Appellant AND Pudota Mariyadas and another .. Respondents JUDGMENT: The appeal is directed against the award in M.V.O.P. No.382 of 1992 on the file of the Motor Accidents Claims Tribunal- cum-III Additional District Judge, Guntur, dated 09-04-1998. The facts leading to the appeal are that the appellant was going on scooter No.AP7-1877 as a pillion rider on 01-03-1992 at about 10-20 P.M. when jeep No. CRM 4841, driven rashly and negligently at high speed, dashed against the scooter near Hindu college car stand at Guntur. The jeep ran over the left leg of the appellant causing grievous injuries, for which crime No.31 of 1992 was registered by the police. The claimant, aged 38 years, working as a medical officer, was getting a salary of Rs.6,969/- per month and he was an in-patient in Government General hospital, Guntur from 01-03-1992. He underwent surgery on 02- 03-1992 and was bedridden for several months spending Rs.2,62,834/- towards medical expenses. Hence, he claimed a compensation of Rs.10,00,000/- from the owner and insurer of the jeep. While the owner of the jeep remained ex parte before the Tribunal, the insurer contested the claim contending that the claimant is put to strict proof of all his allegations and as it is a case of collision between the two vehicles, the claim is excessive including the claim for interest. The Tribunal framed issues on the manner of the accident, the driving licence of the jeep driver, the liability of the insurer and the entitlement of the claimant to compensation. During enquiry, it examined P.Ws.1 to 3 and marked Exs.A.1 to A.12. The respondents did not produce any evidence. The Tribunal rendered the impugned award firstly accepting the evidence of P.Ws.1 and 2, the pillion rider and the driver of the scooter and concluding that the evidence of P.Ws.1 and 2 established that the accident occurred due to the rash and negligent driving of the jeep. The insurer was concluded to have not proved the absence of any driving licence for the driver of the jeep and the absence of any liability for the insurer. The Tribunal, while assessing the compensation, referred to the evidence of P.W.3, the doctor, who spoke about the injuries and treatment and the permanent disability left. The Tribunal considered it just to award Rs.2,60,000/- towards the medical expenses incurred and Rs.30,000/- towards pain and suffering, but while coming to the grant of Rs.1,65,665/- towards loss of leave salary, the Tribunal opined that the injured has much balance of service and the leave will be earned and accruing till his retirement. Therefore, the Tribunal granted only Rs.13,602/- towards salary of one month as shown in Ex.A.12 and did not grant any sum towards loss of leave salary for the period of earned leave or half-pay leave. The Tribunal assessed the disability permanently suffered by the claimant to grant a compensation of Rs.1,50,000/- under that head and it did not grant any sum towards transport charges, extra nourishment and other miscellaneous expenses in the absence of proof. The Tribunal considered it reasonable to award interest at 12 per cent per annum and burdened both the respondents with liability to pay the entire compensation of Rs.4,53,602/- with interest at 12 per cent per annum and it gave further directions about the disbursement of the compensation. The claimant was aggrieved with the award and challenges the same in this appeal contending that the permanent disability is a lifetime suffering for which any amount of paltry compensation cannot adequately compensate and the Tribunal erred in not granting the compensation as claimed. The accident destroyed the career of the appellant and the Tribunal also erred in refusing the amount claimed towards loss of leave, as the claimant would have utilized the leave so lost for some other purpose or would have encashed. The claimant also contended that transport charges, extra nourishment charges, etc., also have to be granted and the entire compensation should have been awarded. The appeal stood dismissed for default against the owner of the jeep/1st respondent by an order of this Court, dated 04-12- 2003. Heard Sri G.L. Nageswara Rao, learned counsel for the appellant and Smt. S.A.V. Ratnam, learned standing counsel for the 2nd respondent-insurer. The insurer or the owner of the jeep did not challenge the liability to pay compensation to the appellant for the injuries suffered in the accident and their consequences and therefore, the only question that remains for consideration herein is the just and adequate compensation to be paid to the appellant. The Tribunal discussed the oral and documentary evidence in this regard in depth and the expenditure of Rs.2,62,834/- towards medical and other expenses claimed by the claimant was almost allowed when a sum of Rs.2,60,000/- was granted under that head. Similarly, whatever was claimed towards pain and suffering was awarded and the conclusion of the Tribunal about the absence of any evidence in proof of transport charges or extra nourishment charges or other miscellaneous charges may not be open to interference in the absence of any specific evidence in support of such expenditure. In so far as the amount awarded to compensate the permanent disability is concerned, as against the claim of Rs.5,18,501/-, the Tribunal awarded Rs.1.5 lakhs. The Tribunal noted that the claimant can work with the aid of prosthesis and the disability was only 38% to 40% according to the medical evidence. It was only with reference to the binding precedents that the amount of Rs.1,50,000/- was arrived at in proportion to the physical disability of only one limb. The Tribunal obviously took into account the lesser percentage of functional disability with reference to whole body and the lesser adverse impact of permanent disability in respect of the limb on the professional capabilities of the injured as a doctor. There is no strong material to interfere with the judicial discretion exercised by the Tribunal in this regard in assessing the monetary compensation for the permanent disability. However, when it came to the question of compensation for loss of leave, P.W.1 deposed on oath about availing half-pay leave for a period of 288 days which could have been encashed by the claimant at the time of retirement on the basis of last pay. Ex.A.11 leave salary particulars and Ex.A.12 salary certificate were before the Tribunal to know the quantum of loss and the Tribunal accepted the monthly salary to be Rs.13,602/- as shown in Ex.A.12. The fact that the claimant by availing earned leave or commuting half-pay leave during the period would have received the entire salary and allowances, will not detract from the fact that he lost whatever earned leave or half-pay leave he earned proportionately and even if he earns leave on full pay and allowances or half pay and allowances in the balance of his official career, the same will not put him back in the same position in respect of both the leaves in which he would have been, but for the accident. Sri G.L. Nageswara Rao, learned counsel for the appellant rightly relied on B. Anandhi v. R. Latha and another[1] by a division Bench, in which answering a similar question, it was held that when the claimant was constrained to apply for leave because of the accident, the fact that he received salary for that period is not a ground to contend that he is not entitled to get compensation for loss of earnings for that period. The principle is unexceptionable and when the calculation of the amount at Rs.1,65,665/- towards leave salary was not alleged or shown to be factually incorrect, the claimant would be entitled to the same and therefore, there should be enhancement of compensation to that extent, of course, minus Rs.13,602/- already awarded by the Tribunal under this head, the balance being Rs.1,52,063/-. In view of the length of time for which interest has to be paid on the amount so enhanced, the same should be confined to a minimal level at 6 per cent per annum. The appeal has to be allowed only to that extent. Therefore, the award, dated 09-04-1998 in M.V.O.P. No.382 of 1992 on the file of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Guntur is modified by awarding a further compensation of Rs.1,52,063/- (Rupees one lakh fifty two thousand and sixty three only) with interest thereon at 6 per cent per annum from the date of the petition till the date of realization and no further directions need be given at this distance of time regarding disbursement of compensation. The appeal is ordered accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 20-07-2011 Svv [1] 2002 ACJ 233