THE HON’BLE SRI JUSTICE G. V. SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.3721 OF 2002 Dated:02.12.2009 Between: The Oriental Insurance Company Limited, Rep., by its Divisional Manager, Divisional Office, Kurnool .. Appellant And Kakarla Ramachandra Reddy and another .. Respondents JUDGMENT: This appeal is directed against the order dated 01.07.2002 passed in O.P.No.503 of 2001 on the file of the Motor Accident Claims Tribunal – cum - District Judge, Kadapa, wherein the claim of the first respondent was allowed in part awarding compensation of Rs.4,59,000/- along with interest at 9% per annum from the date of the petition. Heard the learned counsel for the appellant. None appeared for the respondents. Perused the records. The first respondent filed the claim application seeking compensation of Rs.5,00,000/- for the injury sustained by him in a motor vehicle accident that occurred on 02.05.2001. According to the claimant, on that day, while he was about to get into a lorry near the main gate of Penna Cement Factory at Tadipatri, the lorry bearing No.KA-01A-3773 was driven in a rash and negligent manner by its driver, as a result of which, the claimant fell down and the front tyre of the lorry ran over the left leg below the knee causing crush injury. The claimant was initially taken to Government Hospital, Tadipatri and from there, he was shifted to Balaji Nursing Home, Kurnool, where he was inpatient for two months and underwent plastic surgery. According to the claimant, in spite of the treatment, the injury has resulted in partial permanent disability and affected his earning capacity. The owner of the lorry remained ex parte. The appellant – insurer fled a counter affidavit opposing the claim and denying his liability to pay the compensation. During the enquiry, PWs.1 and 2 were examined and Exs.A1 to A12 were marked on behalf of the claimant. RW.1 was examined on behalf of the appellant – insurer and Exs.B1 to B3 were marked. On a consideration of the evidence available on record, the Tribunal held that the accident occurred due to the rash and negligent driving of the lorry by its driver. The said finding is not seriously disputed. The Tribunal further held that the claimant is entitled for a total compensation of Rs.4,59,000/- with interest at 9% per annum from the date of the petition. Aggrieved by the same, the present appeal is filed by the insurer. Learned counsel for the appellant – insurer would mainly contend that the claimant is an agriculturist and his lands are intact and his claim that he was leasing out D.B. Cart and earning Rs.200/- per day remains unsubstantiated and even otherwise, the accident has not affected his earning capacity and therefore the amount awarded by the Tribunal towards loss of earning capacity is unsustainable. The medical evidence on record shows that the claimant suffered a crush injury on the left leg and the same has resulted in partial permanent disability to the extent of 40% as borne out by the evidence of PW.2 - the doctor, who issued the disability certificate - Ex.A11. The evidence on record also shows that the claimant was inpatient in the hospital for one and half months during which period, he underwent two operations on the left leg and skin grafting was also done. The Tribunal awarded a sum of Rs.98,000/- towards medical expenses as covered by the bunch of bills - Ex.A12 and Rs.7,500/- towards surgical bill covered by Ex.A8 and Rs.9,000/- towards bed charges covered by Ex.A9. The Tribunal also awarded Rs.20,000/- towards pain and suffering and the above said amounts are considered to be just and reasonable. The Tribunal, however, awarded Rs.3,20,000/- towards loss of earning capacity to the extent of 40% disability by taking the average income of the claimant at Rs.50,000/- per annum, both from cultivation of land and hiring of D.B. Cart. The claimant is stated to be having Acs.16 ½.00 gt., of land and was doing personal cultivation. Admittedly, the lands are in tact and it is not the case of the claimant that he had to sell away any portion of the land on account of the accident. When that is so, it cannot be said that there is any loss of earning capacity suffered by the claimant as there is nothing on record to show that the lands were lying fallow without yielding any income because of the injury sustained by the claimant. However, the claimant being an agriculturist and personally cultivating the lands prior to the accident, would have necessarily suffered a set back subsequent to the accident, insofar as his personal supervision of the cultivation is concerned. Hence, what all the claimant can seek to be compensated is only for the loss of supervision but not for the loss of earning capacity. It is considered just and proper to estimate the supervisory charges at Rs.20,000/- per annum having regard to the extent of land which is Acs.16 ½.00 gts. The claimant was admittedly aged 38 years and the suitable multiplier applicable is 16. Thus, the loss of supervisory charges to the extent of 40% partial permanent disability would come to Rs.1,28,000/-. Insofar as the leasing out of the D.B. Cart is concerned, even if the claimant was getting any income by such leasing, nothing prevented him from deriving the same income even after the accident because he was not in any way plying the D.B. Cart personally. The question of loss of earning capacity by leasing out the D.B. Cart does not therefore arise. The claimant is, therefore, held entitled for a total compensation of Rs.2,62,500/-. Learned counsel for the appellant - insurer further contended that the claimant was traveling as an unauthorized and gratuitous passenger in a goods vehicle and is not entitled for compensation and the appellant – insurer is not liable to pay any amount, in view of the decision of the Apex Court in New India Assurance Company Limited V. Asha Rani[1]. It is to be noted that the claimant was not traveling in the lorry at the time of the accident. It is not the case of the appellant also that the claimant was a passenger in the lorry at the time the accident took place. According to the claimant, the driver of the lorry, without observing the claimant, suddenly moved it in a rash and negligent manner, when he was about to get into the vehicle and due to such movement, he fell down on the road and the front tyre of the lorry ran over his left leg and the same is borne out by the evidence on record, particularly, the First Information Report - Ex.A1 and charge sheet - Ex.A2. Thus, by the time the accident occurred, the claimant has not yet boarded the lorry and he has not yet attained the status of a passenger. When that is so, the question of the claimant becoming a gratuitous and unauthorized passenger in the lorry and the avoidance of liability by the insurer on that ground does not simply arise. Learned counsel for the appellant relied on a decision in Noorjahan V. Sultan Rajia TMT Alias Thaju[2], wherein the appellate Court held as follows: It is clear that the legislature intended that such persons, viz., passengers who are in the process of alighting from a public service vehicle, should be covered by the policy of insurance, which requirement is mandatory under Section 95(1)(b)(ii) of the Act. Further, once such persons, viz., those who are entering or alighting from the vehicle are treated as passengers, the limit of liability of the insurance company has to be located in clause (ii) of Section 95(2)(b) of the Act. The above case is related to the claim of the passenger, who was alighting from the bus and who sustained injuries in the process of alighting and subsequently died. The deceased in the above case was admittedly a passenger, who traveled in the bus, and while alighting from the bus he sustained injuries and died subsequently. The Apex Court held that once such persons, namely, those who are entering or alighting from the vehicle are treated as passengers, the limited liability of the insurance company has to be located in clause (ii) of Section 95 (2)(b) of the Moter Vehicles Act 1988. In the present case, the claimant was neither entering a bus nor alighting from the bus. As per the admitted case of both parties, the claimant was about to board a lorry and by the time the accident occurred, he was still on the road, having not got into the lorry and attained the status of a passenger. The decision cited supra is therefore not applicable to the facts of the present case. Inasmuch as the claimant has not yet boarded the lorry nor was he in the process of entering into the lorry, but he was only attempting to enter the lorry when the accident occurred and as he has not yet become a passenger, the appellant – insurer cannot seek to avoid the liability to pay compensation because at the time the accident occurred the claimant was still on the road and continued to be a third party. Under these circumstances, it is held that the appellant – insurer is liable to pay the above said compensation jointly and severally along with the owner of the vehicle. In the circumstances, the claimant is entitled for a total compensation of Rs.2,62,500/- with interest at 9% per annum from the date of the petition. In the result, the appeal is allowed in part to the extent stated above. There shall be no order as to costs. _____________________ G. V. SEETHAPATHY, J 02.12.2009 KH [1] 2003 ACJ 1 (SC) [2] 1997-SCC-1-6