Judgment : Challenging the compensation awarded in O.P.No.1730 of 2002 by the Motor Accident Claims Tribunal–cum–I Additional District Judge, Nizamabad (for short, 'the Tribunal') as excessive, the National Insurance Company Limited filed the instant M.A.C.M.A. 2. The factual matrix of the case is thus: a) The 1st respondent in this appeal is the claimant before the Tribunal. On 23-12-2001 at about 6.30 p.m. while he was travelling in an auto bearing No.AP 25 T 475 along with some others from Nizamabad to Arsapally and when their auto reached Omkar Rice Mill at about 6.30 p.m., one Tata Sumo bearing No. AP 09 R 4665 came in opposite direction being driven by its driver at high speed and in a rash and negligent manner and dashed the auto and caused the accident. In the resultant accident, the claimant suffered fracture to his right leg apart from other injuries. Immediately, he was shifted to Government Headquarter's Hospital, Nizamabad, where operation was performed and his right leg above knee was amputated. After discharge, the claimant pleaded, he took treatment in some other private hospitals by incurring medical expenditure of Rs.3,00,000/-. His further case was that prior to accident, he was working as Hamali in a rice mill and earning Rs.10,000/- p.m. besides earning Rs.8,000/- p.m. by doing paddy business. Thus, he was earning Rs.18,000/- p.m. Due to amputation of right leg, the claimant pleaded that he is not able to do any work now and suffered loss of earnings besides suffering physical disability. The claimant averred that the driver of Tata Sumo was responsible for the accident. On all these pleas, the claimant filed O.P.No.1730 of 2002 claiming Rs.15,00,000/- as compensation under different heads against respondents 1 and 2 who are owner and insurer of the offending vehicle. b) The 1st respondent remained ex parte and the 2nd respondent-insurance company filed counter and opposed the claim on various grounds. c) During trial, P.Ws.1 and 2 were examined and Exs.A1 to A6 and Ex.C1 were marked on behalf of claimant. Policy copy filed by 2nd respondent was marked as Ex.B1. d) Perusal of the award shows that having regard to the evidence of P.W.1-the claimant and Ex.A.1-F.I.R. and Ex.A.2- Charge Sheet, the Tribunal held that the driver of the Tata Sumo was responsible for the accident. Policy copy filed by 2nd respondent was marked as Ex.B1. d) Perusal of the award shows that having regard to the evidence of P.W.1-the claimant and Ex.A.1-F.I.R. and Ex.A.2- Charge Sheet, the Tribunal held that the driver of the Tata Sumo was responsible for the accident. e) Regarding compensation, the Tribunal, having regard to Ex.A.5-Disability Certificate issued by District Medical Board, Nizamabad, whereunder the claimant suffered 80% permanent disability, fixed compensation under different heads as follows: S.No. Head of Compensation Amount Rs. (i) Compensation for disability 6,91,200-00 (ii) Compensation for pain and suffering 50,000-00 (iii) Compensation for future loss of earnings 1,00,000-00 (iv) Compensation for medical expenses and transportation charges 50,000-00 TOTAL 8,91,200-00 Thus, the Tribunal awarded total compensation of Rs.8,91,200/- with proportionate costs and interest at 7.5% p.a. from the date of O.P. till the date of deposit. Hence, the appeal by the insurance company. 3. Heard Sri K.Subba Rao, learned counsel for appellant and Sri L.Dayakar Reddy, learned counsel for 1st respondent. 4. Now, the point for determination is: “Whether the award of the Tribunal is legally and factually sustainable”? 5. POINT: Learned counsel for appellant challenged the quantum of compensation as excessive on two grounds. Firstly, he argued that the Tribunal erred in placing implicit reliance on Ex.A5 Disability Certificate and accepting the disability of claimant as 80%, though no doctor from the Medical Board who issued Ex.A5 was examined by the claimant in proof of its authenticity. Learned counsel argued that in order to prove the disability certificate, concerned doctor who issued it must be examined. On this point, he relied upon the decision rendered in Rajesh Kumar @ Raju Vs. Yudhvir Singh & Another (2009 (1) ALD 21 SC). He further submitted that on the face of Ex.A5, it was clearly mentioned that the same was not valid for legal purposes. Hence, the Tribunal ought not to have accepted Ex.A5 for fixation of disability of the claimant. He further argued that in this case, another doctor i.e. P.W.2, who examined the claimant, issued Ex.C1 Disability Certificate, as per which the claimant suffered only 65% permanent disability. Therefore, there is no consistency regarding the percentage of disability suffered by the claimant. Hence, the Tribunal, instead of taking higher percentage, should have taken lower percentage of disability. 6. He further argued that in this case, another doctor i.e. P.W.2, who examined the claimant, issued Ex.C1 Disability Certificate, as per which the claimant suffered only 65% permanent disability. Therefore, there is no consistency regarding the percentage of disability suffered by the claimant. Hence, the Tribunal, instead of taking higher percentage, should have taken lower percentage of disability. 6. Secondly, he argued that the Tribunal erred in accepting the monthly income of claimant as Rs.4,500/- for computation of compensation for loss of earning power. He argued that the claimant has not placed any cogent evidence regarding his alleged monthly income of Rs.18,000/- by way of doing Hamali work and paddy business prior to accident. Since there is no proper evidence regarding his earnings, the Tribunal ought to have accepted his income as Rs.15,000/- p.a. as laid down in 2nd Schedule of the M.V. Act or at best Rs.3,000/- p.m. which could have been a reasonable one. He, thus, prayed for reassessment of compensation. 7. Per contra, on the aspect of disability, learned counsel for 1st respondent argued that as per Ex.A5 Certificate issued by Medical Board, the claimant suffered 80% permanent disability. The 2nd respondent-insurance company did not challenge the authenticity of Ex.A5 in the cross-examination of P.W.1. Hence, the appellant now cannot argue that no doctor from the Medical Board was examined. Learned counsel submitted that in fact, the claimant wanted to examine the doctor, who treated the claimant in the Government General Hospital, Nizamabad, to prove the disability aspect but since the said doctor is not working there now, he could not examine him. Therefore, as a precautionary measure, he obtained Ex.C1 Disability Certificate from P.W.2 and examined him in the Court. Since Ex.A5 was issued by the Medical Board whose authenticity was unchallenged, the Tribunal rightly accepted the percentage of disability as mentioned in Ex.A5 and computed the compensation accordingly and therefore, there is no reason to find fault with the same. Learned counsel further argued that though physical disability of the claimant is only 80% as shown in Ex.A5 but in fact, the claimant suffered 100% functional disability because he cannot now attend the Hamali work in the rice mill as he did before. Therefore, the Tribunal, in fact, ought to have accepted his disability as 100% instead of 80% and ought to have granted compensation accordingly. Therefore, the Tribunal, in fact, ought to have accepted his disability as 100% instead of 80% and ought to have granted compensation accordingly. He relied upon the decision rendered in Sohel Sardar Khan Vs. S.Rama Pathi Rao ( 2012 (1) ALT 812 )on the point that compensation has to be granted to the extent of functional disability. Learned counsel also argued that in case of a disability, the claimant will be entitled to compensation not only for loss of earning power due to disability but also for the disability itself. On this point, he relied upon the decision rendered in S.Manickam Vs. Metropolitan Transport Corporation Limited (2013 ACJ 1935 (SC)). Learned counsel submitted that in the instant case, the Tribunal granted compensation for loss of earning power alone but not for disability. Therefore, the claimant is entitled to compensation for the disability also. Thus, while supporting the award of the Tribunal, learned counsel prayed for enhancement of compensation. 8. The 1st contention of appellant is concerned, perusal of the evidence shows that the claimant, in addition to filing Ex.A5- Disability Certificate issued by Medical Board showing that he suffered 80% permanent disability, also examined P.W.2 and filed Ex.C1- Disability Certificate issued by P.W.2 showing that he suffered 65% disability. In the light of the above two different percentages of disability and non-examination of the doctor from Medical Board, the appellant now contends that there is no consistency about the extent of disability suffered by the claimant and hence, the Tribunal ought to have accepted the lower percentage. This contention of appellant cannot be accepted for the main reason that when claimant in his evidence stated that his right leg was operated upon and amputated above knee and he obtained Ex.A5 Disability Certificate from Medical Board, the appellant-insurance company in its cross-examination did not challenge the factum of claimant meeting with accident and loosening his right leg above knee by traumatic amputation etc., facts. It should be noted that the appellant-insurance company did not challenge the authenticity of Ex.A5 Certificate. It was its case in the cross-examination that he managed the Medical Board and obtained the disability certificate with more percentage. So, a keen observation of cross-examination would show that the appellant did not challenge the authenticity of Ex.A5 but only suggested that a high percentage of disability was got manipulated in it. It was its case in the cross-examination that he managed the Medical Board and obtained the disability certificate with more percentage. So, a keen observation of cross-examination would show that the appellant did not challenge the authenticity of Ex.A5 but only suggested that a high percentage of disability was got manipulated in it. In this backdrop, Ex.A5 need not be discarded just because the doctor from Medical Board was not examined by the claimant. In Rajesh Kumar case (1st supra) cited by the appellant, the Hon'ble Supreme Court, doubting the authenticity of disability certificate, which was obtained two years after the accident, had held that the same cannot be believed as the author of the certificate was not examined but in the case on hand, as already observed supra, authenticity of the certificate was not challenged. Hence, non-examination of doctor is not a consequence here. Then, coming to the percentage of disability, Ex.A6 Photograph of claimant clearly shows that his right leg was traumatically amputated above knee. Hence, the percentage of disability as mentioned in Ex.A5 cannot be said to be on high side. It appears the claimant examined P.W.2 – Private Medical Practitioner and filed Ex.C1 Certificate issued by him since he could not get the doctor who treated him in Government Hospital, Nizamabad. Though P.W.2 as also a competent doctor to issue disability certificate, when the matter of preference comes, Ex.A5 can be accepted since it was issued by a team of doctors from Medical Board. Therefore, the Tribunal rightly accepted Ex.A5 in preference to Ex.C1. Hence, I find no merit in the 1st contention of the appellant. 9. The 2nd contention of appellant is with regard to earnings of the claimant. The Tribunal, observing that the claimant did not place any record for proving his monthly income as Rs.18,000/-, has fixed his monthly income at Rs.4,500/-. This income was fixed basing on the facts that his profession was Hamali at Dasaradh Rice Mill and he was a Youngman of 38 years old. Hence, the observation of Tribunal cannot be found fault. In the result, I see no merits in the contentions raised by the appellant. 10. Coming to the submission of learned counsel for 1st respondent, he sought for enhancement of compensation on the submission that the claimant suffered 100% functional disability and compensation must commensurate with it. Hence, the observation of Tribunal cannot be found fault. In the result, I see no merits in the contentions raised by the appellant. 10. Coming to the submission of learned counsel for 1st respondent, he sought for enhancement of compensation on the submission that the claimant suffered 100% functional disability and compensation must commensurate with it. This argument of the learned counsel for the 1st respondent cannot be accepted because he did not prefer any appeal challenging the adequacy of compensation. The 2nd argument of 1st respondent is that as per Apex Court's decision stated supra, he is entitled to compensation not only for loss of earning power due to disability but also for disability itself. He is right in the light of the aforesaid decision. In fact, the Tribunal granted compensation separately for loss of earning power due to disability and disability itself. However, it appears by mistake, it mentioned “compensation for loss of earning power due to disability” as “compensation for disability”. Similarly, by mistake, it mentioned “compensation for future loss of earnings” instead of “compensation for disability” (vide paragraph Nos. 15 to 17 of the award). So, the 1st item of compensation mentioned in paragraph No. 17 of the award can be treated as compensation for loss of earning power due to disability. Similarly, compensation mentioned in item No. 3 of the award can be treated as compensation for disability. 11. In the result, with the above observations, this M.A.C.M.A. is dismissed. No costs. Pending miscellaneous petitions in this appeal, if any, shall stand dismissed.