IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTIETH DAY OF OCTOBER TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.1135 of 2006 Between: The United India Insurance Company Limited .. Appellant AND E. Ramu & 2 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.1135 of 2006 JUDGMENT: Heard Sri A. Ramakrishna Reddy, learned counsel for the appellant and Smt. J. Sandhya Rani, learned counsel for the first respondent/claimant. Respondents 2 and 3 are not represented before this Court. 2. The civil miscellaneous appeal is directed against the award in M.V.O.P.No.317 of 2004, on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool, dated 20.12.2005. 3. The factual background for the appeal is that the claimant before the Tribunal was travelling by an Andhra Pradesh State Road Transport Corporation (for short, ‘APSRTC’) bus No.AP 10Z 2899 on 29.03.2004 when near Bollavaram Village at about 10.00 p.m., lorry No.AP 36U 3488, driven rashly and negligently, dashed the bus on the right side injuring the claimant on his right hand. The right hand was amputated upto shoulder during treatment in Government General Hospital, Kurnool, and the permanent disability was requested to be compensated by a sum of Rs.4,00,000/- jointly and severally by the owner and insurer of the lorry and the APSRTC, the owner of the bus. 4. While the owner of the lorry remained ex parte before the Tribunal, the insurer of the lorry and APSRTC denied the allegations of the claimant and the insurer put the blame on the claimant himself, who did not take care and suffered the injury due to his own negligence by keeping the right hand outside the bus. The insurer also claimed that the bus driver also was not careful and contended that the contributory negligence of the claimant and the bus driver have to be considered apart from the existence of a valid driving licence for the lorry driver and a valid permit and fitness certificate for the lorry. The APSRTC claimed the accident to have occurred only due to the rash and negligent driving of the lorry and both the contesting respondents claimed the compensation to be excessive. The insurer obtained a permission under Section 170 of the Motor Vehicles Act, 1988 (for short, ‘the Act’). 5. The Tribunal framed issues about the manner of the accident and the entitlement of the claimant to compensation and during enquiry, P.W.1 and R.W.1 were examined and Exs.A-1 to A-7 and B-1 were marked. 6. The Tribunal rendered the impugned award firstly concluding that the accident occurred due to the rash and negligent driving of the lorry as probablised by Ex.A-4-Calender and Judgment in C.C.No.57 of 2004, on the file of the Court of Judicial Magistrate of First Class, Nandikotkur, on the admission of guilt by the lorry driver for an offence punishable under Section 338 of the Indian Penal Code, 1860, which was not rebutted by any other evidence. The Tribunal also referred to the evidence of the injured-P.W.1, Ex.A-1-First Information Report and Ex.A-2-Charge Sheet in this regard. The Tribunal assessed the compensation payable with reference to Ex.A-5- Discharge Card, Ex.A-6-Disability Certificate, Ex.A-7-Bunch of medical bills showing the treatment of the injured-P.W.1 from 30.03.2004 and amputation of the right hand resulting in 80% disability. Therefore, the Tribunal considered it reasonable to award Rs.15,000/- towards pain, Rs.1,500/- towards loss of amenities, Rs.75,000/- towards transport and extra nourishment, Rs.3,101/- towards medical bills and Rs.1,17,000/- towards future loss of income assessing the disability at 50% and taking the income of the injured at Rs.1,500/- per month and applying a multiplier of 13 for the age of 30 years of the injured. On the total compensation of Rs.2,11,601/-, the Tribunal awarded interest at 7.5% per annum. The liability was fixed jointly and severally against respondents 1 and 2 and the third respondent, APSRTC, was absolved of any liability. 7. The insurer of the lorry challenged the said award in this appeal contending that when the claimant sought for only Rs.30,000/- towards transport, the Tribunal erred in award of Rs.75,000/- towards transport and extra nourishment and the disability fixed at 50% without examining the doctor could not have been so fixed. The appellant also contended that the rashness and negligence of the drivers of both the vehicles alone led to the accident apart from the own contributory negligence of the injured and the fact that P.W.1 was the only injured person in the accident shows his own negligence. The appellant contended that the criminal Court’s judgment is not binding on the Tribunal and, therefore, desired the impugned award to be reversed. 8. The point for consideration in this appeal is again about the responsibility for the accident and the quantum of just and adequate compensation to which the claimant is entitled. 9. Insofar as the conclusion of the Tribunal about the manner of the accident is concerned, there was no oral or documentary evidence to contradict the claims of the injured- P.W.1 or the contents of Ex.A-1-First Information Report, Ex.A-2-Charge Sheet and Ex.A-4-Calender and Judgment in C.C.No.57 of 2004. Even if the claims of P.W.1 were to be considered to be tainted with interestedness, the earliest version in Ex.A-1-First Information Report by the bus driver placed the blame solely on the lorry driver and there was nothing in Ex.A-1-First Information Report to show that the injured-P.W.1 kept his right hand outside the body of the bus to attribute any contributory negligence to him when the lorry hit the bus on the right side and injury to P.W.1 was the consequence. The conclusion of the police, the independent statutory Investigating Agency in Ex.A-2-Charge Sheet, after examining the bus driver and an eye witness among others also cannot be considered to be incorrect. Above all, the lorry driver admitted the offence before the criminal Court and was convicted on such admission. The reasons for such admission by the lorry driver are neither before the Court nor are germane in considering the issue of rashness and negligence herein. Under the circumstances, the conclusion of the Tribunal in this regard making the owner and insurer of the lorry liable vicariously for the rashness and negligence of the lorry driver cannot be found fault with. 10. Coming to the quantum of just and adequate compensation to which the claimant is entitled, the assessment of loss of future earning capacity, taking his disability at 50% cannot be considered incorrect being in tune with the corresponding provisions of the Workmen’s Compensation Act, 1923, in respect of the scheduled injury. Though the doctor himself was not examined, as amputation was physically seen by the Tribunal to be true while examining P.W.1, the non- examination of doctor may not be of much significance. The award of Rs.1,500/- towards loss of amenities, Rs.3,101/- towards proved medical bills, etc., also cannot be in question and the monthly income was taken at a minimum by the Tribunal and the age adopted for arriving at an appropriate multiplier is also not shown to be in any way incorrect. 11. The only aspect which can be questioned is grant of Rs.75,000/- towards transport and extra nourishment by the Tribunal, while the claimant himself claimed only Rs.30,000/- towards transport and medical expenditure and did not claim any sum towards extra nourishment. In his evidence also, he reiterated the claims made in the claim petition and specifically stated that he incurred Rs.30,000/- only towards medical expenses and attendant charges. He did not claim to have incurred any expenses towards extra nourishment. Therefore, this amount should have been confined to Rs.30,000/- only. However, he claimed a compensation of Rs.27,000/- for pain, suffering, mental agony and permanent disability in respect of which the Tribunal awarded only Rs.15,000/- and as the attempt herein is to arrive at the just and adequate compensation, notwithstanding the absence of any cross objections or cross appeal by the claimant, the compensation under that head can be awarded at the amount claimed in view of the disastrous consequence of the injury to the right hand leading to its amputation making the claimant permanently disabled at the very young age of 30 years. Consequently, if the said sum of Rs.12,000/- were also to be granted under that head and were to be adjusted in the excess of Rs.45,000/- granted towards transport, the compensation should be reduced by Rs.33,000/- and the interest awarded at 7.5% per annum was not shown to be in any manner deviant from the then prevailing rate of interest. 11. Therefore, the award, dated 20.12.2005, in M.V.O.P.No.317 of 2004, on the file of the Motor Accidents Claims Tribunal-cum-Principal District Judge, Kurnool, is modified by limiting the compensation to Rs.1,78,601/- with interest at 7.5% per annum from the date of the petition till the date of realization and proportionate costs and no further directions need be given about the disbursements of the compensation at this distance of time. The Civil Miscellaneous Appeal is allowed, accordingly, in part without costs. ___________________ G. BHAVANI PRASAD, J Date: 20th October, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD M.A.C.M.A. No.1135 of 2006 Date: 20th October, 2011 KL