IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY SECOND [22ND] DAY OF JUNE TWO THOUSAND AND TEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.580 of 2008 Between: The Branch Manager, Oriental Insurance Company Ltd., Kadapa … Appellant And: Shaik Azmathulla & another … Respondents THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY M.A.C.M.A.No.580 of 2008 JUDGMENT: This appeal is directed against the order dated 23.10.2007 in MVOP No.564 of 2004 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Kadapa, wherein the claim of the first respondent herein, was allowed in part, awarding compensation of Rs.2,98,400/-, with interest at 7.5% per annum, from the date of petition. 2. Heard the learned counsel for the appellant. None appears for the first respondent-claimant. Perused the record. 3. The first respondent herein filed claim application before the Tribunal seeking compensation of Rs.3,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 01.01.2003. According to him, on that day, he along with others engaged Tata Sumo bearing No.AP 04 U 4266 to go to Horsely Hills, to celebrate New Year and that on account of the rash and negligent driving by the driver, the vehicle over turned near Mudivedu cross road, as a result of which, the claimant sustained grievous injuries and he was shifted to Government Hospital, Madanapalle and later he continued treatment in a private hospital. The claimant pleads that he was operated upon and steel rods were inserted for the fracture injuries on the right hand and as such he is unable to lift heavy articles. Mudivedu Police registered a case in Cr.No.1 of 2003 against the driver of the vehicle. The claimant pleads that he was working as Salesman in M/s Radha Leather Shoe Company, Kadapa and earning Rs.5,000/- per month and that the injuries sustained to him in the accident led to permanent disability. 4. The 2nd respondent herein-owner of the vehicle remained ex-parte. The appellant herein-insurance company filed counter, opposing the claim and denying their liability to pay the compensation. 5. On the strength of the pleadings, the Tribunal framed the following issues for trial. (1) Whether the claimant received injuries in a motor vehicle accident occurred on 01.01.2003 due to rash or negligent driving of R.1’s Tata Sumo bearing No.AP 04 U 4266 by its driver? (2) Whether the claimant is entitled for compensation and if so for what amount and from whom? (3) To what relief? 5. During enquiry, the claimant examined himself as PW.1 and Dr.Sanjeevaiah was examined as PW.2 and marked Exs.A.1 to A.7. No oral or documentary evidence was adduced on behalf of the appellant/insurer. 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 vehicle by its driver. On issue No.2, the Tribunal held that the claimant is entitled for compensation of Rs.2,98,400/- with interest at 7.5% per annum from the date of petition. Aggrieved by the same, the present appeal is filed by the insurer. 7. The finding of the Tribunal that the accident occurred due to the rash and negligent driving of the vehicle by its driver is not seriously challenged. Even otherwise, the evidence on record, oral testimony of PW.1, and the contents of Ex.A.1 FIR and charge sheet Ex.A.3 would support the contention of the claimant that the accident occurred on account of the rash and negligent driving of the vehicle by its driver. 8. The main contention of the learned counsel for the appellant/insurer is that in the absence of any evidence to show that the claimant was working as Salesman and that he was earning Rs.5,000/- per month as claimed, the Tribunal erred in taking his monthly income at Rs.3,000/- per month and awarding compensation by calculating the loss of earning capacity based on the un- substantiated claim. 9. Learned counsel for the insurer has obtained permission of the Tribunal under Section 170 of the Motor Vehicle Act (for short ‘the Act’) vide orders dated 13.09.2007 in IA No.1108 of 2007 and the same is mentioned in the grounds of appeal. The appellant is, therefore, entitled to question the quantum of compensation as well. 10. The evidence on record shows that the claimant sustained grievous injuries, including fracture of right arm and he was referred to Medical Board for assessment of the disability and the Medical Board on examining the claimant, assessed the nature and extent of the disability at 80% and issued certificate to that effect. PW.2 Dr.Sanjeevaiah also testified to the said aspect. The Tribunal, however, has taken the percentage of the disability only at 50% without affording any reasons for the same. The Tribunal, however, erred in taking the income of the claimant at Rs.2,500/- per month, merely on the ground that the claimant was hale and healthy. According to the claimant, he was working as Salesman in M/s Radha Leather Shoe Company and was earning Rs.5000/- per month and he did not, however, adduce any evidence in support of the said plea. He did not examine the employer or any one from the employer organization nor did he produce a salary certificate. The claim of the claimant that he was working as salesman and earning Rs.5,000/- per month, therefore, remained totally unsubstantiated. When that is so, the Tribunal ought to have taken into consideration the notional income of the claimant, which is indicated at Rs.15,000/- per year in the II Schedule of the Act. There is absolutely no basis whatsoever for the Tribunal in taking into consideration, the amount of Rs.2,500/- per month as income of the claimant. 11. It is not disputed that the claimant was aged 22 years and the appropriate multiplier applicable for his age is 17. Thus, taking the notional income of the claimant at Rs.15,000/- per annum and applying the multiplier 17, the loss of earning capacity on account of 80% disability would come to [Rs.15,000/- x 17 x 80%] Rs.2,04,000/- . The Tribunal awarded a sum of Rs.12,500/- towards loss of past income, for a period of five months. As the notional income of the claimant is taken into consideration at Rs.15,000/- per annum, the apportionate loss of income for a period of five months of hospitalization would come to Rs.6,250/- and the claimant is entitled for the said amount. The Tribunal has awarded a sum of Rs.8,000/- towards pain and suffering, Rs.3,000/- towards mental agony, Rs.2,000/- towards transportation, Rs.5,000/- each towards attendant charges and extra nourishment and Rs.7,900/- towards medical bills as borne out by medical bills Ex.A.5. Having regard to the nature of the injuries sustained and the disability resulting there from and the period of hospitalization, the above amounts awarded by the Tribunal under various heads, do not call for any interference. In the circumstances, the claimant is held entitled for a total compensation of [Rs.2,04,000/- + Rs.6,250/- + Rs.8,000/- + Rs.3,000/- + Rs.2,000/- + Rs.10,000/- + Rs.7,900/-] Rs.2,41,150/- with interest at 7.5% per annum from the date of filing of the petition. The amount awarded by the Tribunal is modified accordingly. 12. In the result, the appeal is allowed in part. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 22.06.2010 bss