IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.1325 of 2003 Between: T.Damodar ..... APPELLANT(S) AND Siddarth Biharee and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.1325 of 2003 ORDER: Appellant herein filed claim petition in O.P.No.1490 of 1997 before the Motor Accident Claims Tribunal-cum-Additional Special Judge for SPE & ACB Cases-cum-V Additional Chief Judge, City Civil Court, Hyderabad, seeking compensation of Rs.1,00,000/- under Section 166 of the Motor Vehicles Act, 1988 (for short – ‘the Act’), on account of the injuries sustained by him in the motor vehicle accident, alleging that on 16.10.1997 at 10.30 pm while himself and another person were travelling in the Auto bearing No.AP-10T-8470, owned by the 1st respondent, being driven by the 2nd respondent, at Jeedimetla weigh bridge, and when an unknown lorry came in opposite direction, the Auto driver drove it in a high speed and dashed against the said lorry, due to which the Auto turned turtle resulting injuries all over his body. Subsequently, the appellant also got impleaded the owner and insurer of the lorry bearing No.AP-28T-3537 involved in the accident as 3rd and 4th respondents to the petition. Respondents 1 and 3 remain ex parte before the Tribunal. Respondents 2 and 4 resisted the claim by filing counters denying the averments made in the petition. The Tribunal framed the following issues for trial. (1) Whether the petitioner received injuries in the accident on account of the rash and negligent driving of the Bajaj Auto bearing No.AP-10-T-8470 by its driver? (2) Whether the petitioner is entitled to any compensation, if so, to what amount and from whom? (3) To what relief? On behalf of the appellant, P.Ws.1 and 2 were examined and Exs.A.1 to A.8 were marked. No oral evidence was adduced on behalf of the respondents, but Exs.B.1 and 2 copies of insurance policies were marked with consent on behalf of the 2nd and 4th respondents, respectively. Considering the material on record, the Tribunal, holding that the accident occurred due to the rash and negligent driving of both the offending vehicles, awarded Rs.25,000/- with proportionate costs and interest at 9% per annum from the date of the petition till the date of realization as compensation to the appellant payable by all the respondents. Dissatisfied by the compensation awarded, the present appeal is by the claimant. The learned counsel for the appellant vehemently contended that though the Tribunal rightly held that the claimant sustained injuries in the accident and there is absolutely no material on record to decide as to which vehicle caused the accident, but failed to consider the evidence on record that the appellant is suffering from restriction of knee and shortening of leg by 2½ cms and erred in awarding the statutory compensation of Rs.25,000/- under Section 140 of the Act in a petition filed under Section 166 of the Act. The learned Standing Counsel appearing for the insurance companies contented that there is no flaw in the compensation awarded by the Tribunal and the same needs no interference more particularly when there is no evidence on record to show as to which vehicle caused the accident. Now the point that arises for consideration is whether the compensation awarded by the Tribunal is not ‘just’ compensation and, if so, to what compensation is the appellant entitled? From a perusal of the impugned order it is clear that the Tribunal held that there is absolutely no material on record to decide as to which vehicle caused the accident and the appellant sustained injuries in the accident in which the Auto bearing No.AP-10T-8470 is involved. According to P.W.2, the Doctor who treated the appellant, the appellant sustained fracture of both bones of right leg; there was a shortening of right leg by 2½ cms; there was mal-union of fracture; there was a limp on walking with restriction of knee and ankle; and the shortening of leg was visible. According to him, the foot of the appellant was not touching the ground if the appellant were to stand on the tips of the toe and the disability is around 45%. In the facts and circumstances of the case, I hold that the Tribunal committed error in considering the case under Section 140 of the Act and awarding the statutory compensation of Rs.25,000/-. It is stated that the appellant was a Tailor by profession and was aged 32 years by the date of accident. Since even a coolie by that date would be earning Rs.2,000/- per month, I take the notional income of the appellant at Rs.2,000/- per month which annually comes to Rs.24,000/-. The disability of the appellant was assessed to be 45%. For determination of loss of future income, the multiplier applicable for the age of 32 years is ‘16’. So, the loss of future income comes to Rs.24,000/-x 45% x 16 = Rs.1,72,800/-. At this juncture, the learned counsel appearing for the insurance companies contended that since the claim is restricted to Rs.1,00,000/- the compensation may be restricted to Rs.1,00,000/-. On the other hand, the learned counsel for the appellant contends that if the claimant is entitled to get more compensation that what is claimed, the Courts are not barred to grant the same and submits that he is ready and willing to pay the deficit court fee on the enhanced compensation. In support of the said contention he placed reliance on a judgment of the Apex Court in the case of NAGAPPA vs. GURUDAYAL SINGH AND OTHERS[1] wherein it was held that under the provisions of the Motor Vehicles Act, 1988, there is no restriction that compensation could be awarded only up to the amount claimed by the claimant and that in an appropriate case where from the evidence brought on record if the Tribunal/Court considers that claimant is entitled to get more compensation than claimed, it may pass such Award, but the only embargo is that it should be ‘Just’ compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. In the case on hand, neither the Tribunal awarded any amounts under the other heads viz., general damages, pain and sufferings, medical expenses, and transportation, nor is there any contention in that regard before this Court and in the grounds of appeal. Even without awarding any amount under those heads, the loss of future income alone is arrived at Rs.1,72,800/- and so the same is just and equitable compensation for the injuries suffered by the appellant in the accident. Therefore, the appeal is allowed. The award of the Tribunal is modified and an award is passed for Rs.1,72,800/- with proportionate costs before the Tribunal payable by the respondent Nos.1 to 4 jointly and severally with interest at 9% per annum on Rs.25,000/- from the date of the petition till the date of realization and on Rs.1,47,800/- from today till the date of realization, subject to the claimant paying the deficit court fee on the enhanced compensation. There shall be no order as to costs in this appeal. ___________________________ GHULAM MOHAMMED, J. 8th July 2010 CVRK [1] AIR 2003 SUPREME COURT 674