HON'BLE SRI JUSTICE B.N .RAO NALLA M.A.C.M.A. No. 604 of 2005 DATED: 04.02.2011 Between : Thummapudi Sambasivarao …APPELLANT A N D 1. A. Nancharamma 2. The Oriental Insurance company Limited … RESPONDENTS JUDGMENT: This Civil Miscellaneous Appeal is directed against the order, dated 13.12.2004 made in M.V.O.P.No. 1350 of 2001 whereby the Motor Vehicle Accidents Claims Tribunal-cum-V Additional District Judge, Guntur, allowed the petition in part granting compensation of Rs.58,500/- to the appellant-claimant together with interest @12% per annum jointly and severally against his claim of Rs.1,00,000/-. The facts of the case in brief are that on 10.12.2001, at about 11.00 A.M., while the claimant and another were going on their TVS Moped from their village i.e. Emani to Tenali and when they reached near Nandivelugu X-road, the driver of the lorry bearing No. AP16V 7727 belonging to the 1st respondent, drove it at high speed and in rash and negligent manner without blowing horn and dashed against the TVS Moped and the tyres of the lorry ran over the right leg of the appellant, as a result, the appellant received grievous injuries. Subsequently, he underwent operation on his right leg and steel rod was inserted, however, there is restricted movement to his right leg and it became bent and shortened and he is walking by limping resulting in permanent disability. The claimant was aged about 40 years at the time of accident. He was conducting old battery’s business and used to earn Rs.3000/- per month. Hence, the appellant filed M.V.O.P. No. 1350 of 2001 claiming compensation of Rs.1,00,000/-. The 1st respondent – owner of the lorry, filed written statement denying all the averments of the petition and stated that the accident occurred due to rash and negligent driving of the driver of the TVS Moped, who has no valid licence. The 2nd respondent – Oriental Insurance Company Limited, also filed written statement denying all the petition averments and stated that the 1st respondent violated the terms, conditions and warranties of the policy and the liability of the 2nd respondent arises only when the appellant proves that the vehicle has valid permit to ply on that route at the time of the accident, the driver has valid driving licence and subsisting policy of insurance. It is stated that the 2nd respondent is not the insurer of the vehicle and there is no subsisting policy of Insurance to the vehicle at the time of accident. It is further stated that there is negligence on the part of the claimant only, as such, it is not liable to pay any compensation. Based on the pleadings, the Tribunal framed the following issues: 1) Whether the petitioner sustained injuries in the accident due to rash and negligent driving of the driver of the Lorry No.AP 16V 7727? 2) To what compensation amount the petitioner is entitled to and against whom? To substantiate the claim, the claimant got examined himself as PW1 and others as PWs.2 and 3 and got marked Exs.A1 to A5. Nobody was examined nor got marked any documents on behalf of the respondents. Taking into consideration the evidence and other material on record, the Tribunal awarded a total compensation of Rs.58,500/- together with interest at 9% per annum and proportionate costs. Being aggrieved by the impugned order, the claimant has preferred this Appeal. Heard the learned counsel for both the parties and perused the material placed on record. From a perusal of the order under challenge, it is obvious that as per the evidence of PW2 – Dr.J.Hanumantha Rao, the ankle movement of the claimant is restricted and his permanent disability is 20 to 22%, and based on such evidence, the Tribunal determined the disability being suffered by the claimant as 20%. Ex.A4 – wound certificate clearly reveals that the petitioner sustained three injuries and injury Nos.1 and 3 are grievous and injury No.2 is simple in nature and he is aged 42 years at the time of the accident. The multiplier to be applied for persons of age group between 41 and 45 as per Sarla Varma vs. Delhi Transport Corporation[1] case is “14”. Moreover, the claimant averred in the petition that he was running old battery’s business and used to earn Rs.3000/- per month and this plea was not rebutted nor controverted by the learned counsel for the respondents except stating that there is no proof of documentary evidence. Hence, this Court, having regard to the facts and circumstances of the case, takes into consideration the plea of the claimant and fixes the income of the claimant as Rs.3,000/- p.m. After deducting 20% disability therefrom, it comes to Rs.600/- per month. Therefore, Rs.600/- x 12 = Rs.7,200/- per annum. By applying the appropriate multiplier i.e. Rs.7,200/- x 14, it works out to Rs.1,00,800/-. However, as the claim of the appellant-claimant is Rs.1,00,000/-, the compensation is restricted to Rs.1,00,000/-. Hence, a total compensation of Rs.1,00,000/- (Rs.58,500/- awarded by the Tribunal + Rs.41,500/- enhanced compensation) is granted to the claimant under all heads. However, the rate of interest at 9% p.a. as awarded by the Tribunal is hereby reduced to 7.5% on the enhanced amount in view of the decision rendered by the Apex Court and other decisions. With the above modification of the impugned order dated 13.12.2004, this appeal is allowed. No order as to costs. __________________ B.N.RAO NALLA,J 04.02.2011 bcj [1] (2009) 6 SCC 121