THE HON’BLE SRI JUSTICE B.N. RAO NALLA C.M.A.No.3906 of 2002 JUDGMENT: The petitioner-claimant aggrieved by the orders dated 13.1.2001 passed in M.V.O.P.No.189 of 1999 on the file of the Motor Accidents Claims Tribunal-cum-IV Additional District Judge, Tirupathi in granting Rs.22,000/- only as compensation, preferred this appeal seeking enhancement. 2. The facts in brief are that on 1.2.1999 at about 2.45 p.m. the petitioner-claimant was returning home from his work place and when he reached near Chittoor Chandragiri main road crossing, a car bearing No.KA-02-5757 came at high speed driven in a rash and negligent manner by its driver and dashed against him causing injuries to right elbow, right upper abdomen, fracture of right leg below knee and injury to his right thigh. He was admitted to SVRR hospital at Tirupati. Chandragiri P.S. registered a case in Crime No.16/99 against the driver of the Car. 3. The first respondent remained ex parte while the second respondent-insurance company contested the matter denying the petition averments including age, avocation, earnings and the disability suffered by the claimant. It also denied the rash and negligent driving on the part of the car driver and alleged that the accident had occurred only due to the negligence of the petitioner- claimant. 4. The petitioner-claimant got himself examined as PW.1 besides examining PW.2 and got marked Exs.A.1 to A.5. However, no witnesses were examined and no documents were marked on behalf of the second respondent-insurance company except marking Ex.B.1 policy by consent. 5. The Tribunal after framing the relevant issues gave a finding that the accident had occurred due to rash and negligent driving on the part of the car driver, basing on evidence of PW.1. The petitioner-claimant to be aged about 25 years and was earning Rs.2,000/- per month as a Cooli. PW.2 was examined to prove the earnings of the petitioner- claimant-injured. He testified that the injured was earning Rs.100/- per day and sometimes Rs.150/- per day. The Tribunal disbelieved the evidence of PWs 1 and 2 as to the earnings of the petitioner-claimant- injured. 6. The learned counsel for the respondent - Insurance Company submits that as per Ex.A-2 wound certificate, the appellant – claimant suffered small abrasion to the right elbow, another abrasion over the upper abdomen and that as per Ex.A-2 wound certificate, injuries 1 and 2 are simple in nature and injury No.3 is of grievous in nature. But, however, the X-ray of ankle shows fracture of lateral malleolus. Learned counsel further submits that the fracture of right ankle, right thigh and fracture of ribs etc., and also loosing of eye sight in the right eye, as alleged by the petitioner– claimant do not find place in Ex.A-2- wound certificate. Therefore, he contends that the Tribunal rightly observed that the reception of injuries by the appellant – claimant, except fracture of right leg and injury on abdomen and right elbow could be doubted and that therefore, what is stated in Ex.A-2 wound certificate ought to be considered and the Tribunal has rightly considered the same and basing on which the Tribunal has granted just and reasonable compensation and the same does not warrant any interference. Learned counsel further submits that since the appeal as against R-1 only is dismissed for default, the liability to pay the compensation amount cannot be fastened on the respondent- insurance company. Learned counsel also pointed out that the rate of interest awarded by the Tribunal at 9% is on the higher side and the same may be appropriately reduced in keeping the decision reported i n Sarla Verma and others v. Delhi Transport Corporation and another[1]. 7. On the other hand, learned counsel for the appellant – petitioner-claimant contends that the dismissal of matter at the appellate stage against the owner of the accident vehicle does not necessarily absolved the insurer from its liability and he relied on a decision reported in Meka Chakra Rao v. Yelubandi Babu Rao @ Reddemma and others,[2] wherein it was held as under: “ If the Claims Tribunal records a finding that the accident had taken place due to the rash or negligent driving of the driver of the motor vehicle and if such finding is not challenged either by the insurance company or by the owner of the motor vehicle, the question that arises in appeal filed against the orders of the Tribunal by the claimants is only with regard to the determination of just, fair and reasonable quantum of compensation and therefore, there cannot be any bar to decide the quantum of compensation against the Insurance Company even in the absence of owner of the vehicle to the extent of the statutory liability of the Insurance. But the quantum of compensation cannot be decided over and above the statutory liability of the Insurance Company in the absence of the owners, but the question of the statutory liability of the Insurance Company survives for consideration at the appellate stage.” 8. Having regard to the material available on record and also having regard to the submissions made by either counsel, it is to be seen that though Exs.A.2 to A.5 were filed, no medical witnesses were examined to corroborate the same. However, in view of the facts and circumstances of the case, this court is of the view that the Tribunal ought to have awarded Rs.5,000/- each for two abrasions found on right elbow and right abdomen, Rs.25,000/- for fracture of right leg, Rs.10,000/- towards pain and suffering and Rs.5,000/- towards medical expenses, which is just and reasonable. Thus, it is to be held that the petitioner-claimant is entitled to a total compensation of Rs.50,000/- (Rupees Fifty Thousand) only (i.e. Rs.5,000/- each for two abrasions found on right elbow and right abdomen, Rs.25,000/- for fracture of right leg, Rs.10,000/- towards pain and suffering and Rs.5,000/- towards medical expenses) with interest at 7.5% per annum so far as the enhanced compensation amount is concerned. 9. With the above modification, the C.M.A. is disposed of. ________________ B.N.RAO NALLA,J 9-9-2010 Stp/ktl [1] 2009 ACJ 1298 [2] 2001 (1) ALT 495 (DB)