HON’BLE SRI JUSTICE V.ESWARAIAH C.M.A.Nos.2759 of 2002 & 2189 of 2003 Dt.15.7.2010 C.M.A.NO.2759 OF 2002 Between: Sree Ramulu ..Appellant And P.Nageswara Rao and another ..Respondents C.M.A.NO.2189 OF 2003 Between: The Oriental Insurance Company Limited ..Appellant And Sree Ramulu and another ..Respondents HON’BLE SRI JUSTICE V.ESWARAIAH C.M.A.Nos.2759 of 2002 & 2189 of 2003 JUDGMENT: Both the appeals arise out of common order in M.V.O.P.No.334 of 2001 on the file of the I Additional District Judge-cum-Chairman, Motor Accidents Claims Tribunal, Kurnool, dated 16.7.2002. Appellant in C.M.A.No.2759 of 2002 is the claimant and the appellant in C.M.A.No.2189 of 2003 is the Oriental Insurance Company, insurer of the offending vehicle. One P.Nageswara Rao is the owner of the said offending vehicle. The parties hereinafter are referred to as they are arrayed before the Tribunal below. 1st respondent is the owner of lorry bearing No.AP 04T 7097 and the 2nd respondent is the insurance company. It is the case of the petitioner/ claimant that on 1.10.2000 he was going by the lorry bearing No.AP 04T 7097 to Cement Factory at Racharla from Kurnool for loading the lorry. The lorry was driven at high speed in a rash and negligent manner. At about 5.00 p.m., near Bommireddypalli bus stop on N.H.7 road, the driver of the lorry suddenly applied breaks and as the vehicle could not be controlled by the driver, it was turned turtle and two of the inmates of the lorry died instantaneously and the petitioner and others received injuries. It is stated that the petitioner was working as hamali and earning Rs.80/- per day and by reason of the said accident the left hip joint was dislocated and he was treated in the Government General Hospital, Kurnool and operation was conducted for setting right the fractured bones and he was treated as inpatient for 25 days and thereafter underwent treatment as outpatient for two months. It is stated that he spent Rs.15,000/- towards medical and attendants expenditure and even after prolonged treatment his left leg could not become normal and he became permanently disabled and he lost his income. Therefore, he claimed a total sum of Rs.1,30,000/- under various heads i.e., Rs.15,000/- towards loss of earnings, Rs.15,000/- towards medical and attendants expenditure, Rs.25,000/- towards pain and suffering and loss of expectation of life and loss of amenities of life and Rs.75,000/- towards compensation for future loss of earnings. The owner of the said vehicle remained ex parte. The insurance company filed counter disputing the averments stating that it is for the petitioner to prove the said averments. It is stated that there was no negligence or carelessness on the part of the driver of the lorry and the accident was occurred only due to negligence of the petitioner. The Tribunal below basing on the oral and documentary evidence held that the accident occurred due to rash and negligent driving of the driver of the offending vehicle insured with the insurance company. The said finding has not been questioned in the appeal filed by the insurance company. The contention of the insurance company in the appeal filed by it is that the claimant was travelling as an unauthorized passenger in goods vehicle and therefore the insurance company is not liable to pay compensation. It is further stated that unauthorized passengers are not allowed to travel in the goods vehicle and as the insured had violated the terms of the policy by allowing unauthorized passengers in goods vehicle, the insurance company is not liable to pay any compensation. It is stated that the policy covered the risk for three employees alone. C.M.A.No.2759 of 2002 is filed by the appellant for enhancement of compensation, whereas C.M.A.No.2189 of 2003 is filed by the insurance company contending that the insurance company is not liable to pay any compensation as per the terms and conditions of the policy, The question that arises for consideration is whether the claimant is travelling in the said vehicle for loading or unloading the goods as a hamali or as a passenger and, if the claimant is travelling as a hamali, whether the policy covers the worker travelling in the said lorry. The claimant was examined as P.W.1 and stated that while he was proceeding as hamali in the said lorry for unloading cement at old bus stand, Kurnool and when the vehicle reached Bommireddipalli village, the driver of the vehicle applied sudden breaks and then the lorry turned turtle and he sustained fracture to his left leg and immediately he was shifted to the Government General Hospital, Kurnool, wherein he was treated as inpatient for 25 days and thereafter he underwent treatment as outpatient for a period of two months and his mother attended on him through out his treatment in the hospital and still he is getting pain due to the accidental injuries. On account of the accident he is unable to work as hamali. Ex.A-1 is the copy of F.I.R in Cr.No.70 of 2000 of Veldurthi Police Station, Ex.A- 2 is the copy of wound certificate, Ex.A-3 is the out-patient chit and Ex.A-4 is the medical bill of Rs.1500/- for scanning. In the cross-examination it is stated that he was working as hamali under the owner of the said lorry. There were three hamalies and six passengers in the lorry at the time of accident and the suggestion that he was travelling as a passenger was denied and stated that he was travelling as hamali. P.W.2, the Assistant Orthopedic Surgeon in Government General Hospital, Kurnool, stated that he examined P.W.1 on 8.5.2002 i.e., one and half year after the accident in the Government General Hospital and noticed that the claimant is limping, radiating pain on left thigh present and movements around the left hip joint are moderately restricted and the claimant is feeling difficulty in sitting and squatting. He himself treated the claimant in the Government General Hospital, Kurnool from 1.10.2000 to 25.10.2000 and the case of the claimant was posterior dislocation left hip joint. An operation was done on the same day and again on 14.10.2000 another operation was done on the claimant for open reduction and internal fixation. The claimant is having permanent disability at 20% partial and permanent and he cannot attend to hamali work. In the cross-examination, it is stated that there is a Medial Board at the District level for certifying the disability and he is not authorized to issue disability certificate. The suggestion that the percentage of disability as stated by him at 20% is excessive is denied. On behalf of the insurance company, the Assistant Divisional Manager was examined as R.W.1. He stated that the accident vehicle is a goods vehicle and the claimant was travelling in the goods vehicle unauthorizedly and it is violation of the conditions of the policy. As per policy three persons are permitted to travel in the accident vehicle and they are driver, cleaner and spare driver. In the cross- examination the suggestion that the claimant was travelling in the vehicle, as hamali to load the vehicle at Racherla Cement Factory and that there is no condition in Ex.B-1 restricting the number of persons to travel in connection with operation of motor vehicle is denied. Heard both the learned counsel and perused the records. Ex.B-1 is the copy of insurance policy. The perusal of Ex.B-1 policy clearly indicates that paid Drivers/ Workmen No.7 premium of Rs.105 was paid. It is the case of the claimant that he is a hamali and therefore the policy covers for the hamali/ workmen. If that be so, the claimant is entitled for compensation payable jointly both by the owner of the lorry as well as the insurance company as the policy covers for seven workmen and therefore it cannot be said that the policy is limited for three persons alone i.e., driver, cleaner and spare driver. In view of the said payment of premium for the workmen also, I am of the opinion that the insurance company is liable to pay compensation and therefore it cannot be said that there is violation of the conditions of the policy in permitting the hamali to travel in the lorry for loading and unloading purpose. Therefore, the contention of the insurance company that the claimant is an unauthorized passenger and the contention that the insurance company is not liable to pay compensation are not acceptable. Accordingly, the appeal filed by the insurance company is liable to be dismissed. In so far as the claim for enhancement of compensation is concerned, the Tribunal below awarded a total compensation of Rs.35,750/-. The income of the claimant was taken into account as Rs.15,000/- per annum and the age of the claimant was 25 years at the time of the accident and the multiplier was taken as 17. The disability was taken into account as 10% and accordingly awarded a sum of Rs.23,500/- towards permanent disability. In so far as pain and suffering is concerned, the Tribunal awarded Rs.5,000/- towards pain and suffering besides Rs.1500/- towards medical expenses and an amount of Rs.2,000/- is awarded towards transportation, extra nourishment and other incidental expenses. In the instant case, the permanent and partial disability was stated by the doctor as 20%, but the court below has taken into account as 10% as permanent disability only. Admittedly, the claimant suffered posterior dislocation of left hip joint and the said injury is grievous injury. He was treated for a period of 25 days by undergoing two operations in the Government General Hospital and thereafter underwent treatment for two months as outpatient. According to the evidence of P.W.2, the claimant cannot attend to hamali work and he is still limping and is having permanent disability at 20%. Though the medical board alone is competent to assess the percentage of disability to issue the certificate, as per the evidence of P.W.2, the claimant underwent two operations and there is 20% permanent disability and the movements around the left hip joint are moderately restricted and he is feeling difficulty in sitting and squatting. Therefore, I am of the opinion that it is just and proper to award a sum of Rs.45,000/- towards the nature of injuries and the treatment undergone by the claimant which affects his future earning capacity through out his life. I am of the opinion that the claimant is also entitled to all other amounts awarded by the Tribunal on various other accounts i.e., Rs.5,000/- towards pain and suffering, Rs.1,500/- towards medical expenses covered by Ex.A-4, Rs.2,000/- towards transportation, extra nourishment and other incidental expenses, besides the amount of Rs.3,750/- towards loss of earnings from the date of accident till the date of filing of petition. Therefore, the claimant is entitled to a total amount of Rs.57,250/-. Accordingly, the appeal filed by the insurance company is dismissed and the appeal filed by the claimant is allowed in part enhancing the compensation from Rs.35,750/- to Rs.57,250/- and the claimant is also entitled to interest at 7% per annum on the aforesaid enhanced compensation from the date of petition till the date of realization. No order as to costs. _________________ V.ESWARAIAH, J. 15.7.2010 kpr