THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY MOTOR ACCIDENTS CIVIL MISCELLANEOUS APPEAL No.712 OF 2006 DATED: 22-10-2009 Between: Shaik Meera Hussain. ..... PETITIONER And Ch.Ramesh & another. .....RESPONDENTS ORDER: This appeal is directed against the order, dated 22-09-2005, in O.P.No.14 of 2003 on the file of the Motor Accidents Claims Tribunal-cum-II Additional District Judge, Nellore, wherein the claim of the appellant was allowed in part awarding compensation of Rs.61,000/- with interest @ 7.5% p.a. from the date of the petition. 2. None appeared for the appellant and the 1st respondent. Heard learned counsel appearing for the 2nd respondent. Perused the record. 3. The appellant filed a claim application seeking compensation of Rs.1,00,000/- for the injury sustained by him in a motor accident that occurred on 27-09-2001 while he was driving a lorry bearing No.AP 02T 7144. According to him, he sustained multiple fracture of the right knee and also abrasion on the left knee which resulted in permanent disability and he also underwent surgery for removal of the patella bone. He claimed total compensation of Rs.1,00,000/. Respondents opposed the claim. 4. Claimant was examined as P.W.1 and the Orthopedic Surgeon was examined as P.W.2. Exs.A1 to A4 were marked on behalf of the claimant. No oral evidence was adduced by the respondents, but Ex.B1- copy of the policy was marked. 5. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the lorry bearing No.AP02T 7144, driven by the claimant, as admitted by him. The Tribunal however held that the petitioner is entitled for Rs.15,000/- towards pain and suffering; Rs.400/- towards medical expenses; Rs.2500/- towards extra nourishment, special diet and attendant charges; and Rs.43,200/- towards loss of income on account of permanent disability which was assessed by the Tribunal at 12%. Thus a total compensation of Rs.61,100/- was awarded with interest @ 7.5% p.a. 6. As seen from the medical evidence on record, the claimant sustained two injuries namely 1) Crepitus deformity and swelling of right knee with abrasion and 2) Abrasion over left knee. Injury No.1 is stated to be grievous in nature and injury No.2 was simple. The case sheet received from the Government hospital, Nellore also corroborated the testimony of P.W.2. As seen from the award, the claimant was also an in-patient for a period of about 5 weeks from 27-09-2001 to 03-11-2001 and he was operated during that period for removal of the patella bone and repair of the soft tissues of the knee joint. The Tribunal awarded Rs.15,000/- towards pain and suffering, which is considered to be just and reasonable. Regarding the medical expenses, the Tribunal awarded only a sum of Rs.400/- on the ground that the bills to that effect alone were produced. Having regard to the nature of the injury sustained and also the fact that the petitioner underwent surgery during his hospitalization for over five weeks, it is considered that a sum of Rs.1000/- can be awarded towards medical expenses. The Tribunal awarded a sum of Rs.2500/- towards extra nourishment and attendant charges. It is considered just and proper that the said amount is confined towards extra nourishment and another sum of Rs.2500/- can be awarded towards attendant charges. Insofar as the loss of earning capacity is concerned, the Tribunal awarded Rs.43,200/- as against the claim of Rs.60,000/-. As per the evidence of P.W.2 there was a limitation of knee movements and the physical disability is 20 to 25%. P.W.2 further deposed that P.W.1 was not advised to drive vehicles and not to do heavy manual work. The Tribunal estimated the percentage of disability at 12% without any basis as against the estimate of 20 to 25% made by P.W.2, a competent Orthopedic Surgeon who treated P.W.1. It is therefore considered just and proper to go by the estimate of the permanent disability at 20%, as estimated by P.W.2, instead of arbitrarily reducing the same to 12%. 7. It is not disputed that the claimant was aged 35 years and the appropriate multiplier is ‘15’. The claimant was stated to be working as driver earning monthly salary of Rs.3500/- besides batta of Rs.100/- per day. P.W.1 however admitted that he has not filed any document to show that he was getting the said salary and batta. Under those circumstances, the Tribunal has rightly assessed the income of the claimant at Rs.2000/- per month. Thus, taking the percentage of permanent disability and consequent loss of earning capacity at 20%, the compensation towards loss of earning capacity on account of his disability and applying the multiplier of ‘15’ works out to Rs.72,000/-. The total compensation payable to the claimant therefore comes to Rs.93,000/- with interest @ 7.5% from the date of the petition. 8. The Tribunal passed the award fastening the liability on the 1st respondent alone and no liability was fastened on the 2nd respondent-insurer on the ground that the policy-Ex.B1 does not cover the risk of the driver. 9. As seen from Ex.B1-policy, the premium was paid only in respect of the liability to public and no separate premium is paid covering the risk of the driver. In the absence of payment of any premium covering the risk of the driver and the obligation between the insurer and the insured being contractual in nature, and when the terms of the contract do not provide for payment of additional premium covering the risk of the driver, the Tribunal has rightly exonerated the 2nd respondent-insurer from payment of the compensation. Further, admittedly, the claimant himself was rash and negligent and on account of his own rash and negligent driving the accident occurred. Under those circumstances, the 1st respondent being employer has to pay the compensation to the petitioner and no liability can be fastened on the 2nd respondent-insurer. 10. In the circumstances, the appellant is held entitled for payment of compensation of Rs.93,000/- with interest @ 7.5% p.a., from the date of the petition on the amount awarded by the Tribunal and at the same rate from the date of appeal on the enhanced amount. 11. In the result, the Appeal is allowed as against the 1st respondent and the same is dismissed as against the 2nd respondent-insurer. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 22nd October, 2009 Tsy