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 M.A.C.M.A.No.1026 of 2006 and Cross Objections SR No.8409 of 2007 M.A.C.M.A.No.1026 of 2006: Between: National Insurance Company Ltd.,rep. by its Divisional Manager ..... APPELLANT(S) AND Mohd. Mahaboobkhan and another .....RESPONDENT(S) Cross Objections SR No.8409 of 2007: Between: Mohd. Mahaboob Khan ..... APPELLANT(S) AND National Insurance Company Ltd.,rep. by its Divisional Manager and another .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED M.A.C.M.A.No.1026 of 2006 and Cross Objections SR No.8409 of 2007 COMMON ORDER: Since the appeal and cross-objections arise out of the same Award, they are being disposed of together. For the sake of convenience, the parties herein are referred to as they were arrayed before the Tribunal. The claimant filed claim petition in M.V.O.P.No.411 of 2003 on the file of the Motor Vehicle Accident Claims Tribunal-cum-III Additional District & Sessions Judge (Fast Track Court), Medak, seeking compensation of Rs.1,20,000/- under Sections 166 of the Motor Vehicles Act, 1988, alleging that he was working as a cleaner on a lorry bearing No.AP-16-T-1579, owned by the 1st respondent and insured with the 2nd respondent, and that on 21.11.2002, while he was on duty, the driver drove the lorry in a rash and negligent manner and dashed another lorry bearing No.AP-03-U-1144 which was going in front of it and due to the accident he received multiple fractures on his right leg, left leg and all over the body. It is stated that immediately he was shifted to Government Hospital, Sangareddy, and after first aid he was shifted to Gandhi Hospital, Secunderabad, where he was treated as an inpatient for two weeks. It is stated that due to the fracture of his both legs he became permanently disabled and was not in a position to walk and work. It is stated that he was aged 20 years by the time of accident and was earning Rs.3,000/- per month and incurred Rs.25,000/- for his treatment. The first respondent remained ex parte before the Tribunal. The second respondent who is the insurer of the lorry resisted the petition by filing a counter denying all the allegations and contending that the claimant was travelling in the lorry as an unauthorized passenger and not as a cleaner thereon and as such it is not liable to pay any compensation. Based on the pleadings, the Tribunal framed the following issues for trial. (1) Whether the accident occurred due to rash and negligent driving of the lorry bearing No.AP-16-T- 1579 by the driver? (2) Whether the petitioner is entitled to the compensation, if so, to what amount? (3) To what relief? On behalf of the claimant, he himself was examined as P.W.1 and the Doctor who treated the claimant was examined as P.W.2 and Exs.A.1 to A.4 were marked. On behalf of the respondents, though no oral evidence was adduced, copy of the insurance policy was marked as Ex.B.1. Considering the material on record, the Tribunal, holding that the accident occurred due to the rash and negligent driving of the offending lorry, awarded Rs.58,175/- with costs and interest at 7.5% per annum from the date of the petition till the date of realization as compensation to the claimant for the injuries sustained by him in the accident. Aggrieved by the same, the insurer preferred M.A.C.M.A.No.1026 of 2006 and, not being satisfied with the compensation, the claimant filed Cross Objections in the appeal. The learned counsel appearing for the insurer vehemently contended that the Tribunal was in error in awarding compensation as the claimant was travelling in the offending lorry as an unauthorized passenger and not as a cleaner. Per contra, the learned counsel appearing for the claimant contended that the Tribunal failed to take into consideration the grievous injuries sustained by the claimant and the evidence of P.W.2, the Doctor who performed operation and fixed interlocking nails on the right leg of the claimant, for awarding just and proper compensation. Now the point for consideration is whether the claimant is entitled to the compensation, if so, to what amount and from whom? The main contention advanced from the insurer is that the claimant was travelling in the offending lorry as an unauthorized passenger but not as a cleaner. So, there can be no doubt about the manner in which the accident took place. The only thing that is to be decided is whether the claimant was travelling in the offending lorry as an unauthorized passenger or as a cleaner. No doubt, the claimant failed to produce any evidence to show that he was earning Rs.3000/- per month by working as a cleaner on the offending lorry. But, the insurer itself put a suggestion to the claimant during the cross- examination that even though he was physically fit to do his regular work and the driver of crime vehicle in which he was working as cleaner does not have valid driving licence, it is not liable to pay compensation and he was deposing false about his illness for the sake of claim. Except the said suggestion, which was denied by the claimant, nothing was elicited to show that he was an unauthorized passenger in the offending lorry. The insurer has not even examined the 1st respondent who was the owner of the offending lorry to show that the claimant was not working under him as a cleaner. So, it can be safely held that the claimant is entitled to the compensation. A perusal of the material on record reveals that the Tribunal awarded Rs.6,000/- towards pain and suffering; Rs.6,145/- towards medical expenses; Rs.4,000/- towards attendant charges; Rs.4,000/- towards loss of earnings; Rs.13,030/- towards loss of earnings for his 35% disability; Rs.2,000/- towards transportation charges; Rs.3,000/- towards extra nourishment; and Rs.20,000/- towards grievous injuries, making a total compensation of Rs.58,175/-. The claimant was aged 20 years by the time of the accident. It is the case of the claimant that he was earning Rs.3,000/- per month. Since he failed to adduce any evidence in respect thereof, the Tribunal took Rs.24,000/- per annum as notional income. P.W.2, the Doctor, who treated the claimant, assessed the partial and permanent disability as 35%. So, the loss of income of the claimant would come to Rs.8,400/- per annum i.e. 35% of Rs.24,000/-. The Tribunal also wrongly applied the multiplier ‘19’. For the age of 20 years, the appropriate multiplier as per the judgment of the Apex Court in SARLA VERMA vs. DELHI TRANSPORT CORPORATION[1] for determination of compensation in claim petitions filed under Section 166 of the Act is ‘18’. So, the amount payable towards loss of future earnings would come to Rs.8,400/- x 18 = Rs.1,51,200/-. I do not want to interfere with the amounts awarded under the other heads. So, the claimant is entitled to Rs.1,51,200/- towards loss of future earnings + Rs.6,000/- towards pain and suffering + Rs.6,145/- towards medical expenses + Rs.4,000/- towards attendant charges + Rs.4,000/- towards loss of earnings + Rs.2,000/- towards transportation charges + Rs.3,000/- towards extra nourishment + and Rs.20,000/- towards two grievous injuries; making a total compensation of Rs.1,96,345/-. The learned counsel appearing for the insurance company contended that since the claim is restricted to Rs.1,20,000/- the compensation may be restricted to Rs.1,20,000/-. 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[2] 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 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. Therefore, the award of the Tribunal is modified and an award is passed for Rs.1,96,345/- with proportionate costs before the Tribunal payable by the respondent Nos.1 and 2 jointly and severally with interest at 7.5% per annum from the date of the petition till the date of realization, subject to the claimant paying the deficit court fee on the enhanced compensation. Accordingly, the M.A.C.M.A.No.1026 of 2006 is dismissed and the Cross-Objections SR No.8409 of 2007 is allowed-in-part. The parties shall bear their own costs in these proceedings. ___________________________ GHULAM MOHAMMED, J. 8th July 2010 CVRK [1] AIR 2009 SUPREME COURT 3104 [2] AIR 2003 SUPREME COURT 674