IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF MARCH TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4162 of 2003 Between: Lenka Raman .. Appellant AND Sri Vijay Kumar S. Desai & another .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4162 of 2003 JUDGMENT: This appeal is directed against the award in M.O.P.No.1540 of 2000, on the file of the Motor Accidents Claims Tribunal-cum- I Additional District Judge, Visakhapatnam, dated 28.03.2003. 2. The appellant/claimant was travelling in lorry No. AP 16T 9596 as a cleaner on 21.04.2000 and lorry No.MP 09 KA 7400 coming in the opposite direction, driven rashly and negligently in high speed, dashed the lorry in which the appellant/claimant was travelling at about 5.00 a.m. near Chitgoppa Cross, Hudgi, and the claimant suffered injuries for which he was treated at Humanabad General Hospital, Bidar and then at Osmania General Hospital, Hyderabad for 45 days as inpatient. He was later treated in a private hospital at Visakhapatnam for 25 days, the total medical expenses being Rs.60,000/- and the claimant claimed to be aged 22 years and to be earning Rs.2,000/- per month as salary and Rs.50/- per day as batta. He claimed a compensation of Rs.3,00,000/- jointly and severally from the owner and insurer of lorry No.MP 09 KA 7400. 3. While the owner of the lorry remained ex parte, the insurer, in its pleadings, denied the allegations of the claimant or the negligence on the part of the lorry driver or the drivers having valid driving licences or the other allegations of the claimant. The compensation claimed was contested as excessive. 4. The Tribunal framed issues about the responsibility for the accident and the entitlement of the claimant to compensation. 5. During the course of enquiry, P.Ws.1 to 3 and R.W.1 were examined and Exs.A-1 to A-7 and B-1 and B-2 and X-1 were marked. 6. The Tribunal rendered the impugned award firstly referring to the evidence of the injured P.W.1 who was corroborated by the First Information Report-Ex.A-1 and the other documents. The Tribunal interpreted Ex.A-1-First Information Report as showing that the lorries coming in the opposite directions dashed in the middle of the road indicating the negligence of drivers of both the vehicles. The Tribunal apportioned the liability between the drivers of both the vehicles, accordingly, at 70% and 30% respectively. In calculating the quantum of compensation to be paid, the Tribunal referred to the evidence of P.W.1 and the doctors, P.Ws.2 ad 3, and noted that the Case Sheet-Ex.X-1 showed a simple fracture on the upper and middle 1/3rd of the right femur, fracture of shaft of right fibula and a permanent disability resulting out of the three fractures. The Tribunal also noted that Ex.A-4-Discharge Report of the Osmania General Hospital, Hyderabad, shows that the claimant was treated between 22.04.2000 and 05.06.2000 as inpatient, while the evidence of P.W.2 is about the treatment from 15.06.2000 to 09.07.2000 for which Ex.A-3 are the medical bills and receipts. The evidence of the injured and the medical evidence led the Tribunal to grant Rs.30,000/- towards the three fractures, Rs.30,000/- towards pain and suffering, Rs.40,000/- towards past and future treatment and Rs.10,000/- towards extra nourishment. Out of Rs.1,10,000/-, the Tribunal attributed the liability to respondents 1 and 2 to the extent of 70%, i.e., Rs.77,000/- and though it found that the evidence of R.W.1 and Exs.B-1 and B-2 disclose that between the expiry of the original licence and the renewal of the driving licence, the driver of the offending vehicle did not possess any valid driving licence at the time of the accident, it held that the insurer cannot absolve itself from the liability, while it has a liberty to recover the amount paid to the claimant from the owner of the vehicle. The Tribunal, accordingly, passed an award for Rs.77,000/- with interest at 9% 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 claimant was aggrieved by the quantum of compensation and preferred the present appeal contending that the compensation claimed by him was reasonable and his treatment for the severe injuries for 45 days and the subsequent treatment for 25 days as out patient were not appreciated. The medical expenses were not properly considered and the permanent disability suffered by the claimant and the impact of the same on his future earnings were not properly assessed. The claimant, therefore, desired that the balance of compensation may also be awarded. 8. Heard Sri Karri Suryanarayana, learned counsel for the appellant and Sri Srinivasa Rao Vutla, learned standing counsel for the second respondent/insurer. The first respondent/owner of the lorry remained unrepresented before this Court also. 9. The points that arise for consideration in this appeal are about the responsibility for the accident and the entitlement of the claimant to compensation and if so, to what quantum and from whom? 10. The earliest version in Ex.A-1-First Information Report was based on the statement given by an eye witness to the accident. The translation of his statement from Kannada showed that he clearly alleged lorry No.MP 09 KA 7400 to have been driven rashly and negligently by its driver and that lorry dashed against the other lorry in which the claimant was travelling. The statement clearly stated about both the lorries being damaged in the accident, but the primary allegation was against the driver of the lorry owned by the first respondent and insured with the second respondent. The injured P.W.1, in his evidence also, positively stated that the lorry coming in the opposite direction came rashly and negligently and dashed against the lorry resulting in injuries to him. During the course of his cross-examination, though he stated that there was head on collision between the two vehicles, there was nothing else in his evidence to suggest any express or implied admission about the driver of his lorry also being responsible to any extent for the accident. The First Information Report-Ex.A-1 was registered only against the driver of the lorry owned by the first respondent and the impact of the accident also showed that the severe injuries sustained by the claimant and the death of the driver of the lorry in which he was travelling would have been caused only on the lorry of the first respondent dashing against the other lorry violently. The earliest version attributing the rashness and negligence only to the driver of the lorry No.MP 09 KA 7400 could not have led to any assumptions or presumptions by the Tribunal in the absence of evidence on record about any contributory negligence by the driver of the other lorry. No eye witness to the accident or any person travelling in either vehicle were examined by the respondents and under the circumstances, the accident appears to have been probablised to have occurred only due to the rash and negligent driving of the lorry No.MP 09KA 7400. Consequently, the apportionment of liability attempted to be made by the Tribunal has to be reversed and the responsibility has to be fastened jointly and severally only to respondents 1 and 2, the owner and the insurer, in view of the ownership of the lorry with the first respondent and its subsisting insurance with the second respondent not being in dispute. 11. Coming to the quantum of compensation, the injured P.W.1 stated that he was 22 years old at the relevant time and was earning Rs.2,000/- per month as salary apart from Rs.50/- per day as batta. He also stated that he suffered injuries on the head, knees and the right leg with fractures in the right thigh. He claimed to have been treated at Humanabad General Hospital, Bidar and then at Osmania General Hospital, Hyderabad and then at Visakhapatnam in Shanti Nursing Home. He claimed to have incurred a total expenditure of more than Rs.66,000/- and he claimed to be still unable to work as usual after the accident. He claimed that movements of the foot became limited after the accident. He filed various documents relating to the treatment and his cross-examination did not bring out any factors to suspect his claims. 12. P.W.2 is the Assistant Neuro Surgeon at the King George Hospital, Visakhapatnam, who stated about issuing Ex.A-3-Medical Bills and confirmed the facts in Ex.X-1-Case Sheet. He claimed to have performed a surgery on the claimant and received remuneration as per Ex.A-3-Receipt from the claimant. P.W.2 is an independent witness to discredit whom there is no reason and P.W.3 is another Orthopaedician who claimed to have examined the claimant and issued Ex.A-5- Disability Certificate certifying the claimant to have suffered 40% disability. He stated that there was limitation of movements of the right ankle of the claimant and pain on walking and inability to squat. Shortening of the right leg and consequential disabilities were stated by P.W.3 to be the result of the injuries suffered in the accident and, therefore, the claimant will be entitled to be compensated for the pain and suffering suffered due to the injuries, the permanent disability suffered due to the injuries, the medical expenses he had incurred and the damages towards extra nourishment, damage to clothing, attendant charges, any other inevitable medical expenses and transport charges, etc. The Tribunal, on the basis of the medical bills, awarded Rs.60,000/- towards the three fractures and pain and suffering for the three fractures, Rs.40,000/- towards past and future treatment and Rs.10,000/- towards extra nourishment and the total compensation of Rs.1,10,000/- so arrived at was not challenged by either respondent in any manner by way of any cross objections or cross appeals. The said assessment of compensation has to be, therefore, left uninterfered with, but in respect of the probablisation of the permanent disability suffered by P.W.1 by the evidence of P.Ws.2 and 3, the Tribunal did not award any compensation towards the loss of future earning capacity. For continuing his avocation as a cleaner, undoubtedly, the shortening of the leg, the difficulty in walking and the pain he suffers while squatting will adversely affect his capacity to work and consequently the capacity to earn. The permanent disability of 40% certified by Ex.A-5-Disability Certificate with reference to the injured limb can be reasonably assessed to cause 10% loss of functional ability with reference to the whole body and with reference to the avocation of the claimant. If the claimant was earning Rs.2,000/- per month as a cleaner which is not higher than the minimum wages payable to a cleaner under the Minimum Wages Act, 1948, at about the relevant time and even if the daily batta were to be ignored and the appropriate multiplier applicable to the age of 22 years is adopted, the total loss of earnings of the claimant would have resulted in loss of about Rs.4,32,000/-. If 10% of the same were to be computed towards loss of future earning capacity, the same would come to about Rs.43,000/-. Therefore, if the same is rounded off to Rs.45,000/- and added to the sum already awarded, the same will result in grant of just and adequate compensation to the claimant. 13. It is also seen from the evidence of R.W.1 and Exs.B- 1 and B-2 that during the interregnum between the expiry of the original driving licence and the renewal of the same by the driver of the offending vehicle, this accident has occurred, but the conclusion of the Tribunal that the insurer is bound to pay the compensation and recover the same from the owner of the vehicle was not challenged by either respondent and has to be left untouched. 14. On the portion of the compensation for which the respondents are being made liable by virtue of this judgment, it would be in the interests of justice to limit the interest payable to 6% per annum in view of the length of time for which such interest has to be paid and proportionate costs on the total compensation, of course, shall follow suit. 15. Therefore, the award, dated 28.03.2003, in M.O.P.No.1540 of 2000, on the file of the Motor Accidents Claims Tribunal-cum-I Additional District Judge, Visakhapatnam, is modified by granting a compensation of Rs.1,55,000/- against both the respondents jointly and severally with interest on Rs.77,000/- at 9% per annum from the date of the petition till the date of deposit and at 6% per annum on Rs.78,000/- from the date of the petition till the date of deposit with proportionate costs. 16. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. _____________________ G. BHAVANI PRASAD, J Date: 24th March, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL MISCELLANEOUS APPEAL No.4162 of 2003 Date: 24th March, 2011 KL