IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY EIGHTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal Nos.767, 768, 769, 819, 4072 and 4073 of 2003 and M.A.C.M.A.M.P. No.607 of 2011 in C.M.A. No.4073 of 2003 C.M.A. No.767 of 2003: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Badvel Madhusudhana Reddy and another .. Respondents C.M.A. No.768 of 2003: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Kambam Krishna Reddy and another .. Respondents C.M.A. No.769 of 2003: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND K. Upendra Reddy and another .. Respondents C.M.A. No.819 of 2003: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Koneti Chandra Sekhar Reddy and another .. Respondents C.M.A. No.4072 of 2003: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Marthala Narasimha Reddy and another .. Respondents C.M.A. No.4073 of 2003 & M.A.C.M.A.M.P.No.607 of 2011: Between: The New India Assurance Company Ltd., rep. by its Divisional Manager, Cuddapah .. Appellant AND Kambam Rama Gopal Reddy and another .. Respondents COMMON JUDGMENT: These appeals are directed against the six awards passed in pursuance of the common order rendered in M.V.O.P. No.208 of 2002 and batch on 23-09-2002 by the Motor Accidents Claims Tribunal-cum-District Judge, Kadapa. As the appeals are against the common order arising out of the claims under the same accident and are more or less governed by the same set of facts and circumstances, they are being disposed of by this common judgment at request and with consent. The injured petitioners in all the cases were travelling by the 1st respondent’s Tempo Trax No.TN38 B3691 on 20-05-2001 and at about 10.30 A.M. on Panyam – Banaganapalli road, the Tempo Trax dashed against a tree on the left side of the road when it was driven rashly and negligently in high speed by the driver. The respective petitioners sustained grievous injuries and were admitted in Government hospital, Banaganapalli and later in Government hospital, Kurnool. After discharge, they were treated by Dr. Narendra Dev of Kadapa and they spent significant amounts for treatment. The claimant in O.P. No.208 of 2002 claimed to be working as salesman in Siva Traders, Proddatur for a monthly salary of Rs.3,500/- and to have been disabled after the accident, due to which he claimed a compensation of Rs.2,75,000/-. The claimant in O.P. No.228 of 2002 claimed to be working as salesman in Raghavendra Silks, Proddatur earning Rs.3,000/- per month as salary and to have been disabled from carrying on his occupation, due to which he claimed a compensation of Rs.2,25,000/-. The claimant in O.P. No.229 of 2002 claimed to be working in Gayathri Jewellery Shop, Proddatur earning Rs.1,500/- per month and to have been disabled after the accident, due to which he claimed a compensation of Rs.1,00,000/-. The claimant in O.P. No.230 of 2002 claimed to be a student at the age of 12 years and to be unable to pursue his studies, due to which he claimed a compensation of Rs.1,25,000/-. The claimant in O.P. No.231 of 2002 is also a student, aged 13 years, who was disabled from pursuing his studies after the accident making him claim a compensation of Rs.75,000/- and the claimant in O.P. No.232 of 2002 is also a student, aged 12 years, who similarly claimed a compensation of Rs.1,50,000/-. In all the claims, the owner of the vehicle, the 1st respondent, remained ex parte and the 2nd respondent insurer put the claimants to strict proof of their allegations. It claimed that the terms and conditions of the insurance policy were violated by running the vehicle on hire and that the driver had no valid driving licence. Claiming that the respective compensations claimed are excessive, the insurer desired that the claims be negatived. The Tribunal framed identical issues in all the six cases firstly about the rash and negligent driving of the vehicle by the driver and secondly about the entitlement of the claimants to compensation and the quantum thereof. All the claims were clubbed and tried together with the evidence being recorded in O.P. No.208 of 2002 and during the course of joint enquiry, P.Ws.1 to 7 were examined and Exs.A.1 to A.25 were marked. The Tribunal rendered the impugned common order firstly accepting the claims of P.Ws.1 to 6, corroborated by Ex.A.1 first information report and Ex.A.2 charge-sheet for concluding that the accident occurred only due to the rash and negligent driving of the Tempo Trax by its driver. The Tribunal assessed the compensation in each case separately and in O.P. No.208 of 2002, it noted the injured/claimant to have been treated for 43 days as in-patient and to have undergone a surgery with insertion of plates and screws for the fracture of left clavicle in the left thigh. While referring to the evidence of P.W.7, the doctor, about the disability of 35% with reference to the stiffness of the left knee due to mal-united fracture of left clavicle, the Tribunal accepted Exs.A.3 to A.5 and the evidence of P.Ws.1 and 7 and taking the age of the claimant as 18 years, applied a multiplier of 16 and assessed loss of earnings at 35% to a tune of Rs.2,01,600/-. The Tribunal also awarded Rs.23,213/- towards medical bills and Rs.15,000/- towards pain and suffering and rounded off the compensation to Rs.2,40,000/-. Coming to O.P. No.228 of 2002, the injured was claimed to have suffered injuries on the left elbow, left upper eye lid and chin and with reference to the evidence of P.Ws.2 and 7, the injured and the doctor, and Exs.A.6 to A.10, the Tribunal accepting the claims, assessed the loss of earnings as 30% with reference to the age of 18 years of the claimant by applying a multiplier of 16. Apart from Rs.1,72,000/- so calculated, the Tribunal also awarded a sum of Rs.18,298/- towards medical bills and Rs.3,602/- towards hotel bills, apart from Rs.15,000/- towards pain and suffering. It rounded off the compensation to Rs.2,10,000/-. In respect of O.P. No.229 of 2002, the version of P.W.3, the injured and P.W.7, the doctor read with Exs.A.12 to A.14 was straight away accepted by the Tribunal to assess the loss of earnings at Rs.54,000/- on 20% disability certified by P.W.7 applying the appropriate multiplier for the age of 14 years. The Tribunal also awarded Rs.7,168/- towards medical bills and Rs.15,000/- towards pain and suffering. The total compensation was rounded off to Rs.76,000/-. In O.P. No.230 of 2002, the injured suffered a mal-united fracture of left clavicle and mal-united fracture of both tibia and fibula in the left lower leg. The evidence of P.W.4, the injured and P.W.7, the doctor supported by Exs.A.15 to A.18 was accepted by the Tribunal as proving 30% disability and consequential loss of earnings at the same rate. Loss was assessed with reference to the age of 12 years of the claimant by applying a multiplier of 15 and apart from Rs.67,500/- so granted, the Tribunal also awarded Rs.15,206/- towards medical bills and Rs.15,000/- towards pain and suffering and rounded off the compensation to Rs.98,000/-. The claimant in O.P. No.231 of 2002 suffered a lacerated wound over the left frontal region of the skull, swelling on the back of the left chest, etc., which simple injuries were compensated with reference to the evidence of the injured P.W.5 with Rs.10,000/- for the two simple injuries, Rs.5,000/- towards pain and suffering and Rs.3,500/- towards scanning charges. A further sum of Rs.10,515/- was awarded towards medical expenses and the Tribunal rounded off the compensation to Rs.29,000/-. Coming to O.P. No.232 of 2002, the injured was stated to have suffered mal-united fracture of both femurs, in which plates and screws were inserted and he was stated to be suffering 45% disability due to inability to walk properly. The evidence of the injured P.W.6 and the doctor, P.W.7 supported by Exs.A.23 to A.25 was accepted by the Tribunal to assess the loss of earnings at Rs.1,01,250/- for the boy aged 12 years applying a multiplier of 15. Rs.12,710/- towards medical expenses and Rs.20,000/- towards pain and suffering were also awarded to round off the compensation to Rs.1,34,000/-. The Tribunal awarded interest at 9 per cent per annum and proportionate costs on the compensations so awarded and directed that any ‘no fault liability’ compensation awarded shall be deducted from the compensation awarded in the claims. The Tribunal also gave further directions about the disbursement of the respective amounts. The insurer challenged the awards in all the six cases on identical grounds contending that the Tempo Trax is a private car meant for social, domestic and pleasure purposes of the insured, whereas the insured allowed the vehicle to ply on hire. The violation of the conditions of the policy and the conditions of the permit make the insurer not liable. The insurer also contended that about 15 persons were carried in the vehicle against the capacity of 9 + 1 including the driver and the overloading of the vehicle and not any rash and negligent driving was the cause for the accident. The overloading is also against the permit and the policy. The insurer further contended that the risk covered was only to the extent of only Rs.50,000/- for each passenger, while higher amounts were awarded by the Tribunal. While claiming that it obtained permission under Section 170 of the Motor Vehicles Act, 1988 to contest the claims on all grounds, the insurer also questioned the quantum of compensation fixed in each case with reference to the age, income, disability and other factors relied on by the Tribunal. The compensation awarded in each of the cases was contested to be highly excessive. The insurer, therefore, desired the impugned awards to be reversed. Heard Sri C. Prakash Reddy, learned counsel for the appellant-insurer and Sri K. Rathangapani Reddy, learned counsel for the claimants in all the cases. The owner of the vehicle remained unrepresented before this Court also. The insurer filed M.A.C.M.A.M.P. No.607 of 2011 for receiving a copy of the insurance policy in question as additional evidence and as the terms and conditions of the insurance policy form an indispensable material for consideration of the rival contentions, the said petition is ordered and the said copy of insurance policy is received as additional evidence and is marked as Ex.B.1 herein. The points that arise for consideration in these appeals are: (1) Whether any violation of the terms and conditions of the insurance policy and the conditions of the permit absolve the insurer of the liability to compensate the injured ? (2) Whether the quantum of compensation fixed in each case is excessive and has to be reasonably brought down ? Point No.1: It is true that Ex.B.1 insurance policy relating to the Tempo Trax vehicle involved in the accident appears to have been titled as a private car policy and consequently, it does not appear that the insurer had undertaken any liability in respect of any passenger travelling in the vehicle, if it were to be run on hire by the owner or the driver. However, there is no evidence on record in any of these claim petitions about the vehicle being run on hire. P.Ws.1 to 6 stated identically that P. Shiva Shankar Reddy, who led the pilgrimage of the people travelling in a bus, a Tempo Trax and two jeeps, told that the Tempo Trax belongs to his relatives. Though none of P.Ws.1 to 6 know the owner of the jeep or whether the jeep was engaged for hire or not, the fact remains that there was nothing on record to reject the claim that the Tempo Trax belongs to the relatives of Shiva Shankar Reddy and in the light of the relationship said to have been present between Shiva Shankar Reddy and the owner of the Tempo Trax, allowing the vehicle to be taken for pilgrimage may not be capable of being construed as violation of the permitted use for social and pleasure purposes and as a private vehicle. The insurer did not produce any evidence before the Tribunal and notwithstanding that Ex.B.1 policy is a private car policy, in the absence of clear proof of violation of the terms and conditions of the insurance policy or the permit, the claims cannot be negatived on any such technical ground at this distance of time, more so when even the earliest version in Ex.A.1 first information report or the result of the investigation by an independent statutory investigating agency in Ex.A.2 charge-sheet also do not indicate that the vehicle might have been taken on hire. Hence, this point should be answered against the appellant. Point No.2: Coming to the quantum of compensation, it should be first noted that Sri. C. Prakash Reddy, learned standing counsel for the appellant has brought to notice the principle laid down by the Apex Court in Raj Kumar v. Ajay Kumar and another[1], wherein the principles relating to compensation in injury cases were reiterated. While noting that an injured should be compensated not only for the physical injury but also for the inability to lead a full life, the inability to enjoy normal abilities and the inability to earn as much as he used to earn or should have earned, the Apex Court stated that in personal injury cases, expenses relating to treatment, hospitalization, medicines, transport, nourishment, loss of earnings, future medical expenses, damages for pain, suffering and trauma, loss of amenities, loss of expectation of life and miscellaneous expenditure are the heads under which damages are awarded. In so far as permanent disability is concerned, the Apex Court pointed out that the percentage of permanent disability is expressed by the doctors with reference to a particular limb and it is not the same as permanent disability with reference to whole body. The Apex Court concluded that if different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of permanent disability cannot exceed 100% with reference to the whole body. The Apex Court, therefore, opined that equating the extent of percentage of loss of earning capacity with the percentage of permanent disability will result in award of either too low or too high a compensation. The Apex Court, therefore, directed the Tribunals to ascertain the effect of permanent disability on the actual earning capacity by taking steps firstly whether the claimant could carry on the activities in spite of permanent disability and secondly to ascertain the avocation, profession and nature of work and the age of the injured and thirdly to find out whether the claimant was totally disabled from earning any kind of livelihood or was only prevented or restricted due to the injuries. The Apex Court, in fact, illustrated by referring to a case of amputation of left hand, which might have imposed a permanent disablement of 60%, which in case of driver or carpenter might have resulted in 100% loss of earning capacity, but in case of a clerk performing clerical functions, it might not have resulted in any loss of employment or disability in performing his functions. In assessing just compensation, the Tribunals are, therefore, advised to keep in view that all the injuries or permanent disabilities do not result in loss of earning capacity and the percentage of loss of earning capacity is not the same as the percentage of permanent disability. The Apex Court also opined that the doctor can give evidence only to the extent of permanent disability, but loss of earning capacity will have to be assessed by the Tribunal with reference to the evidence in entirety. In that particular case, the Apex Court assessed the loss of earning capacity at 20% as against 45% of permanent disability. Keeping the principles laid down by the Apex Court in view, each of these cases has to be reassessed. In O.P. No.230 of 2002, the injured was a boy of 12 years and because he was unemployed, the notional income adopted by the Second Schedule to the Motor Vehicles Act was taken as the basis by the Tribunal and the injuries suffered by him were mal- united facture of left clavicle and mal-united fracture of tibia and fibula resulting in inability to walk properly. The disability was assessed to be permanent and to be of 30% and a multiplier of 15 was adopted, which is in tune with the Second Schedule to the Motor Vehicles Act. In so far as the medical bills and pain and suffering are concerned, reasonable sums of Rs.15,206/- actually expended and Rs.15,000/- for two grievous injuries were awarded. As 30% disability with reference to the two fractures could not have been taken as the same percentage of disability with reference to the whole body or the presumed future capacity of the injured boy to earn and taking cue from the guidelines laid down by the Apex Court, the compensation awarded under this head should be reduced further by at least 40% and if so, it should be reduced by Rs.27,000/-. The total compensation awarded in this case should get lessened by such sum and the balance would be Rs.71,000/-. The claimant in O.P. No.228 of 2002 was stated to be earning Rs.3,000/- per month by working as salesman, which was straight away accepted by the Tribunal as well as his age of 18 years as claimed and in the absence of any contrary evidence, the same can continue to be the basis for assessing the compensation with reference to the disabilities suffered by the injured-claimant on the deformity of left elbow due to mal-united fracture of ulna and his consequential inability to lift any heavy weights. However, the percentage of disability with reference to that limb could not be taken as 30% disability with reference to the whole body or with reference to his avocation as salesman. The multiplier adopted for the age of 18 years was, of course, only 16. As per Sarala Verma v. Delhi Transport Corporation[2], the appropriate multiplier would have been 18. If there was cent percent disability, the total loss of earning capacity would have been, therefore, Rs.6,48,000/- , if 18 as multiplier was applied and the percentage of disability with reference to avocation as salesman and the inability to lift heavy weights can be assessed to be about 60% of the permanent disability assessed by P.W.7 and future loss of earnings have to be, hence, reduced by about Rs.55,000/-. The compensation has to be, therefore, reduced to Rs.1,55,000/- while maintaining the actual medical expenses, hotel bills and the compensation towards pain and suffering awarded reasonably by the Tribunal. In O.P. No.208 of 2002, the claimant aged 18 years suffered a similar injury over the left clavicle leaving a mal-united fracture and stiffness of left knee assessed to be causing permanent disability of 35% by P.W.7. While the Tribunal accepted the occupation, monthly income and age of the claimant as claimed by him in the absence of any contrary evidence, the Tribunal assessed the loss of earning capacity at the same percentage as permanent disability assessed with reference to the injuries suffered in the left leg. It could not have been the same and therefore, should be reduced by about one-third of the compensation fixed by the Tribunal under this head. But the multiplier applied herein also was 16 and it has to be 18 as per Sarala Verma v. Delhi Transport Corporation (2 supra). So calculated, the compensation should be reduced by Rs.75,000/-, while the actual medical expenses and pain and suffering awarded by the Tribunal need not be interfered with. The balance compensation payable would come to Rs.1,65,000/-. Coming to O.P. No.229 of 2002, the injured was a minor boy aged 14 years and suffered a mal-united fracture of right clavicle resulting in difficulty in lifting right shoulder and caused a disability of 20%. The future loss of earnings were accordingly calculated by the Tribunal on a monthly income of Rs.1,500/- as claimed by the claimant and a sum of Rs.54,000/- was awarded towards loss of earnings. Medical bills were reimbursed as they are, while pain and suffering were attempted to be compensated by Rs.15,000/-. While the disability with reference to the limb could not have been the same as the disability in respect of whole body, reducing compensation of Rs.54,000/- by about one-third would be granting proportionate compensation for the disability with reference to whole body and therefore, the compensation should be reduced by about Rs.18,000/- leaving a balance of Rs.58,000/- to be granted to the claimant. Coming to O.P. No.232 of 2002, the disability suffered was with reference to mal-united fractures of both femurs, which were subjected to surgery and the permanent disability was of a higher percentage of 45%. The non-earning boy aged 12 years was assessed to be earning Rs.15,000/- per annum as per the Second Schedule to the Motor Vehicles Act and a multiplier of 15 was adopted. But the loss of earning capacity could not have been taken with reference to the whole body as 45%. If it were to be taken as 60% of the permanent disability certified by the doctor, the loss of earnings also accordingly have to be reduced by Rs.40,000/- and the total compensation to be awarded should, therefore, come to Rs.94,000/-. Coming to O.P. No.231 of 2002, the Tribunal awarded only Rs.5,000/- for each simple injury and Rs.5,000/- for pain and suffering, Rs.3,500/- towards scan charges and Rs.10,515/- towards other expenses which were proved and the total compensation of Rs.29,000/- need not be interfered with at all. In so far as the grant of interest at 9 per cent per annum and proportionate costs are concerned, the same cannot be considered as deviant from the norms usually adopted and therefore, the compensation awarded in these six cases has to be modified accordingly in five cases. In the result,— (1) M.A.C.M.A.M.P. No.607 of 2011 in C.M.A. No.4073 of 2003 is ordered and the copy of insurance policy is received as additional evidence and is marked as Ex.B.1. (2) The award, dated 23-09-2002 in M.V.O.P. No.232 of 2002 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa is modified by reducing the compensation by Rs.40,000/- and awarding a compensation of only Rs.94,000/- with interest at 9 per cent per annum from the date of the petition till the date of realization and proportionate costs to the claimant against the respondents to the claim and C.M.A. No.767 of 2003 is allowed in part accordingly without costs. (3) The award, dated 23-09-2002 in M.V.O.P. No.228 of 2002 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa is modified by reducing the compensation by Rs.55,000/- and awarding a compensation of only Rs.1,55,000/- with interest at 9 per cent per annum from the date of the petition till the date of realization and proportionate costs to the claimant against the respondents to the claim and C.M.A. No.768 of 2003 is allowed in part accordingly without costs. (4) The award, dated 23-09-2002 in M.V.O.P. No.230 of 2002 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa is modified by reducing the compensation by Rs.27,000/- and awarding a compensation of only Rs.71,000/- with interest at 9 per cent per annum from the date of the petition till the date of realization and proportionate costs to the claimant against the respondents to the claim and C.M.A. No.769 of 2003 is allowed in part accordingly without costs. (5) The award, dated 23-09-2002 in M.V.O.P. No.229 of 2002 on the file of the Motor Accidents Claims Tribunal- cum-District Judge, Kadapa is modified by reducing the compensation by Rs.18,000/- and awarding a compensation of only Rs.58,000/- with interest at 9 per cent per annum from the date of the petition till the date