THE HON’BLE SRI JUSTICE K.S. APPA RAO M.A. C.M.A.No. 1983 OF 2008 AND M.A. C.M.A. SR. No. 49711 of 2008 COMMON JUDGMENT: This M.A. C.M.A. No. 1983 of 2008 is preferred by the 2nd respondent in O.P.No. 325 of 2006 aggrieved by the award and decree on the file of the Motor Accident Claims Tribunal-cum-District Judge, Ongole dated 13.3.2008 made in O.P.No. 325 of 2006. Another M.A. C.M.A. SR No. 49711 of 2008 is filed by the petitioner in the aforesaid O.P.No.325 of 2006. The aforesaid M.A. C.M.A. is not yet numbered it is at S.R. stage. The counsel appearing for the respondent in un- numbered M.AC.M.A.SR. reported no objection for numbering the C.M.A. by condoning the delay in preferring the said M.A.C.M.A. While taking into consideration the report of both the counsels on record, the aforesaid M.A.C.M.A. is also taken up for arguments along with M.A. C.M.A.No. 1983 of 2008. One Haribabu the petitioner in O.P.No.325 of 2006 filed the same against the owner of the Car, who is arrayed as Respondent No.1 and Bank Manager, I.C.I.C.I. Lombard General Insurance Company Limited being the 2nd respondent. It is a case, injured filed petition under Section 166 of Motor Vehicles Act claiming compensation of Rs. 4,50,000/- for the injuries sustained by him in the motor accident dated 12.5.2006. It is the case of the petitioner that while he was returning Home from Madanapalli in a Car bearing No. AP.26 F 3363 of respondent No.1 insured with respondent No.2 by taking Car for social purpose and when the car reached Tirupathi-Srikalahasthi road near Thums-up factory, the driver of the car drove the car in a rash and negligent manner with high speed and dashed the stationed lorry bearing No. TN 20 M 9900 resulting the car turned turtle and the petitioner sustained injuries on his head, forehead and nasal. Immediately, he was shifted to Srikalahasthi Area Hospital and from there to SVIMS, Tirupathi and accident was registered in Crime No. 117 of 2006 of Nagarjunasagar P.S. under Section 337 and 279 of IPC. In support of the claim, the petitioner was examined as P.W.1 and one K. Vivekanand was examined as P.W-2 and Dr. B.C. Ashok was examined as P.W-3, and Dr. B. Abhinandan was examined as P.W-4. Documents Ex.A-1 to A- 20A, Ex.X-1 to Ex.X-4 were marked. On behalf of the Insurance Company, one J. Madan Mohan Reddy was examined as R.W.1, True copy of private car package policy issued to the offending vehicle is marked as Ex.B-1, office copy of notice issued to the insured was marked as Ex.B-2, Receipt is marked as Ex.B-3 and returned R.P. Cover is marked as Ex.B-4. Basing on the oral and documentary evidence, considering the age and occupation of the injured, the tribunal granted an amount of Rs.1,50,000/-. Aggrieved with the same, both the petitioner and the 2nd respondent filed the present M.A.C.M.As. For the sake of convenience, the parties herein are referred to as they are arrayed in the O.P. before the Tribunal. The counsel for the appellant-2nd respondent in M.A. C.M.A.No. 1983 of 2008 mainly urged that the petitioner is inmate of the Car and he is a gratuitous passenger and therefore, he is not entitled for compensation as insurer has not paid any additional premium covering the risk of the inmates of the car and the award of compensation of Rs. 1,50,000/- is excessive. The counsel appearing for the petitioner, the appellant in un- numbered MA C.M.A. SR No. 49711 of 2008 urged that the tribunal below failed to grant compensation on loss of earnings, even though the claimant filed salary certificate and the tribunal below failed to consider the medical bills etc. but awarded only meager compensation. Now the point for consideration is whether the Order of the tribunal below is sustainable? As seen from the impugned order, the petitioner M. Haribabu filed the petition claiming compensation of Rs. 4,50,000/- for the injuries sustained by him in the motor accident dated 12.5.2006. The owner of the offending car remained exparte. The insurance company mainy contended that there is no privity of contract between the parties and that the accident occurred as the lorry was stationed without keeping danger lights and that the owner of the lorry and it’s insurer are necessary parties, that the driver of the car was under the employment of respondent No.1, that the vehicle was used against the purpose intended in R.C., that there is no separate premium paid covering the risk of the passengers traveling in the Car and therefore, the petition is liable to be dismissed. According to P.W-1, the accident was due to rash and negligent driving of the driver of the car in which he was traveling. It is his further evidence that he sustained injuries on his head, forehead and nasal. Immediately, he was shifted to Srikalahasthi Area Hospital and from there to SVIMS, Tirupathi and to Manipal Hospital, Bangalore where he underwent two surgeries and spent nearly Rs. 2,50,000/- and thereafter he was treated at various hospitals at Ongole. The factum of accident was not disputed. Coming to liability of respondent No.2, it is the contention of respondent No.2 through respondent No.1 that Ex.B-1 policy does not cover the risk of the inmates of car, thus, respondent No.2-insurance company is not liable to pay any compensation for permit violation. The cross examination of R.W-1 coupled with the contents of Ex.B-1 policy viz. condition No.1(a) shows that the policy covers use for any purpose other than hire or reward, carriage of goods, organized racing, pace making, speed testing, reliability trials and purpose in connecting with Motor Trade. Therefore, the liability of the insurer in this case depends on the terms of the contract between the insured and the insurer. The counsel appearing for the appellant-insurance company relied on a decision reported in ROYALSUNDARAM ALLIANCE INSURANCE COMPANY LIMITED Vs. A. PAPPATHI & OTHERS[1] and fairly conceded that the Tariff Advisory Committee, Bombay Regional Committee vide its circular M.V.No. 1 of 1978 Bombay, dated 17.3.1978 given directions to the insurance companies regarding the liability in respect of the gratuitous passengers conveyed in a private car. This circular was followed by other circulars issued from time to time. However, the situation as it stands today is that the India Motor Tariff, 2002 holds the field. Therefore, under the package policy which was issued in this case, the risk covers occupants carried in the motor car except occupants carried for hire or reward. The policy in this case is a policy under Section 2, third party liability clearly covers the risk of the occupants in private car which squarely applicable to the case on hand and so the appellant insurance company cannot avoid its liability merely on the ground that no additional premium was paid. Accordingly, the insurance company should indemnify the compensation payable to the petitioner-pursuant to the above Circular No. 1 of 1978 Bombay dated 17.3.1978. Coming to quantum of compensation, P.W.1 had received injuries viz. 1) Two parallel abrasions 3 cm. x 3 mm. each at 1 cm . apart with surrounding contusion of 4 cm. x 4 cm. above the right eye brow at 1” later to mid line of fore head with slight bleeding, and 2) Swelling with red hue of both orbits of eyes and 3) a lacerated wound of 2.5 cm. x ½ cm. on left nasal with blood clots and slight bleeding from nostrils, 4) a lacerated wound of 2.5cm x 3 mm on left side of the nasal pyramid, red in colour, 5) pain and tenderness on left side of maxilla and mandibles region, 6) bleeding and blood clots in mouth and inhabit to open the mouth. The petitioner claimed to have been treated at Manipal Hospital, Bangalore after he was referred by the doctors at Srikalahasthi Area Hospital and SVIMS, Tirupathi as inpatient where he was operated on his head and plates were inserted and also plastic surgery was done on his face and head and incurred more than Rs. 2,50,000/- towards the medical and nourishment expenditure for which the petitioner filed Ex.A-8 Emergency Certificate, Exs.A-10 and A-11 discharge summaries, Ex.A-17 Essentiality Certificate and Ex.A-18 entire surgery and medical expenses for Rs. 1,61,025/-, Ex.A-16(1) to Ex.A-16(55) medical bills are for Rs. 21,599/-, Ex.A-19 (1) to (14) Medical Bills for Rs. 6,583/-. P.Ws.3 and 4 are the Experts, who operated the petitioner. P.W.2 is another doctor, who gave first aid treatment and according to him, the disability of the petitioner was upto 30% to face and 10% to the body and issued Ex.X-3. He also estimated an amount of Rs. 30,000/- to Rs. 40,000/- towards the future surgery. Ex.A-7 is the referral letter issued by SVIMS Hospital, Tirupathi, Exs.A-13, A-14 and A-15 are O.P. Cards issued by local hospitals at Ongole for the treatment taken by P.W.1. The petitioner in total claimed an amount of Rs. 1,89,208/- towards the medical and surgery expenses. The findings of the tribunal below on the said claim is that there are some exaggerations and some bills are not related to its treatment. The aforesaid finding in my view is without any basis much less without any discussion. There is no whisper how those bills are exaggerated and unrelated to the treatment. Without giving any finding that the bills filed by the petitioner showing exaggerations and some are not co- related do not hold water. It is also observation of the tribunal below that the petitioner still working with no disqualification as Asst. Divisional Engineer(Electricity). This finding is also without any proper reference. In the present case on hand, there is disfigurement on the face and there was surgery on the head and plates were inserted into the head and also plastic surgery was done on the head and face. This itself clearly reads grievousness of the injuries sustained by the petitioner. The disfigurement to the face cannot be estimated in terms of the money. Only the person, who suffers with the said disfigurement and disability will experience the same, but not others. Viewed from any angle, the surgery on the head and insertion of plates and also the plastic surgery on the face and head, any amount of compensation will not compensate the suffering of P.W.1. Therefore, granting of Rs. 1,50,000/- towards the medical expenses for the claim of Rs. 1,89,208/- is very much reasonable, apt on the facts and circumstances of the case on hand. The tribunal below noted, the disability certificate does not show the nature of the disability to the face component and whole body at 30% and 10% respectively. P.W.3 Dr. B.C. Ashok deposed that there will be recurring head ache, loss of smell and pain while chewing. The tribunal while disagreeing with the findings of the experts negatively observed that the evidence of P.W.1 nowhere shows any such problem or its leading to dislocation of work. When Doctor expert gave an opinion that there is recurring head ache, loss of smell and pain while chewing, the adverse inference drawn by the Court does not stand to the judicial scrutiny. Therefore, granting of Rs. 1,25,000/- for the injuries sustained including the brain, pain and suffering, extra nourishment shall be awarded to the petitioner in the special circumstances of the case on hand, in total an amount of Rs. 2,75,000/- is awarded. Accordingly, awarding of compensation of Rs. 2,75,000/- is just and reasonable against the award passed by the tribunal below for an amount of Rs. 1,50,000/-. With this modification, the M.A. C.M.A.No.1983 of 2008 filed by the insurance company is partly allowed and the C.M.A. SR No.49711 of 2008 filed by the claimant is allowed. However, in the set of circumstances of the case, the awarded compensation of Rs. 2,75,000/- carries interest @ 6% from the date of the petition till the date of realization with proportionate costs other than the fee of commission who recorded the evidence. ___________________ 30.4.2011 CHV [1] 2011 ACJ 557