HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.872 OF 1999 DATED: 25.08.2009 BETWEEN: Nelakurthi Padma Priya .. Appellant And Kesana Srinivasa Rao and others .. Respondents HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.872 OF 1999 JUDGMENT:- 1. This appeal is filed by the appellant/claimant against the award dated 04.09.1998 passed by the Motor Vehicles Accidents Claims Tribunal-cum-II Additional District Judge, Guntur in O.P.No.240 of 1995. 2. In respect of the motor vehicle accident occurred on 15.05.1995 wherein the appellant apart from some other passengers traveling in a Bus bearing No.AHJ 5455 sustained head injury and fracture to her right leg, which ultimately resulted in disability of 30%, which according to the doctor is partial and permanent in nature, the Tribunal awarded a sum of Rs.32,000/- as against the claim of Rs.80,000/- claimed by the appellant. 3. Challenge to the award is as to the quantum of compensation granted by the learned Tribunal. 4. I have heard Sri N.Subba Rao, the learned counsel appearing for the appellant and Smt Anasuya, the learned counsel appearing for the fourth respondent – Oriental Insurance company. 5. In the claim petition, the appellant – claimant claimed to be a tailor by profession and aged about 21 years on the date of accident and was earning Rs.1500/- per month. However, except her oral evidence, there is no proof regarding her income. It is the contention of the learned counsel appearing for the fourth respondent – insurance company that in the absence of any other evidence the avocation or income stated by the claimant in her evidence before the Tribunal, cannot be taken into consideration. I absolutely see any force in the contention for the reason that even if the appellant is considered to be a labourer, her income, which according to her at Rs.1500/- per month can be said to be reasonable and it can be accepted without any hesitation. 6. The main contention of the learned counsel appearing for the appellant is that no amount was awarded towards loss of earnings and also for pain and suffering and the reasonable amounts under those heads may be granted in this appeal. 7. In NINGAMMA AND ANOTHER v. UNITED INDIA INSRUANCE COMPANY LIMITED[1] the Apex Court held that “in a claim under Section 166 of the Motor Vehicles Act, the Court is duty bound to arrive at a just compensation irrespective of any pleading and the Court may even apply the multiplier specified in Second Schedule”. Therefore, there is no bar as such, to award the compensation over and above the actual amount claimed if it is just and reasonable and the Court is duty bound to award a just and reasonable compensation. 8. PW.2 Dr.M.J.Naidu stated in his evidence that he treated PW.1 (appellant as inpatient in his hospital) from 16.05.1995 to 01.06.1995, PW.1 received fracture tibia right leg and multiple lacerated wounds over face, and that he conducted operation on 18.05.1995 to closed interlocking nail tibia and removed glass pieces over face. According to PW.2, the appellant got restricted movements of ankle joint right leg and he assessed the disability at 30%, which is partial and permanent. He further deposed that Ex.A.2 to A.6 are medical bills, X rays, receipt for Rs.11,000/- and he issued discharge receipt and certificate. His evidence discloses that the appellant incurred an amount of Rs.20,000/- towards medical expenses, towards treatment as inpatient and transport charges. 9. The learned Tribunal considering the evidence of PW.2 in the cross examination which is to the effect that the appellant can attend to her normal duties, arrived at the conclusion that the appellant is not entitled for any amount towards loss of earnings. The Tribunal lost sight of the fact that attending to ordinary duties is different from attending to professional work. The appellant is a tailor by profession. PW.2 specifically stated in his evidence that the appellant will get pain in the ankle joint while doing tailoring work. Therefore, there is nexus between the disability sustained by the appellant and her professional work. The learned Tribunal ought to have granted compensation towards loss of earnings to the appellant. 10. The annual income of the appellant is Rs.18,000/-. As per the second schedule, the multiplier relevant to the age of the appellant is 17 and as such the loss of earnings comes to Rs.91,800/- (Rs.18,000/- x 30/100 x 17 = 91,800/-). The learned Tribunal, in fact, did not award any amount towards permanent disability though the evidence available on record shows that the appellant sustained 30% permanent disability, which is partial and permanent. However, the above amount shall be towards loss of earnings as well as permanent disability and no separate sum can be awarded towards permanent disability when loss of earnings are computed by multiplier ethod. The other amounts, such as Rs.20,000/- towards medical expenses and transport charges being based on evidence, an amount of Rs.10,000/- towards operation charges to be incurred in future, being reasonable, needs no interference. However, instead of Rs.2,000/- towards pain and suffering, the learned Tribunal ought to have granted an amount of Rs.10,000/- and accordingly in this appeal an amount of Rs.10,000/- is granted towards pain and suffering. Thus the appellant is entitled for total compensation of Rs.1,31,800/-, and the enhancement would be Rs.99,800/-. The enhanced compensation of Rs.99,800/- shall carry interest at the rate of 6% per annum from the date of petition till the date of realization. In view of the fact that the accident occurred in the year 1995, the appellant is permitted to withdraw the entire amount. The learned Tribunal fastened liability equally on the second and the fourth respondents on the ground that there is head on collision between both the vehicles, but there being no appeal by either of the Insurance companies, there is no need to interfere with the said finding. 11. In the result, the appeal is allowed to the extent indicated above. No order as to costs. __________________ R. KANTHA RAO,J 25th August, 2009 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO CIVIL MISCELLANEOUS APPEAL NO.872 OF 1999 25th AUGUST, 2009 [1] 2009(5) Supreme 127