Judgment 1) Dissatisfied with the quantum of compensation awarded by the Chairman, MACT-cum-V Additional Metropolitan Sessions Judge, Mahila Court at Hyderabad (for short “the Tribunal) in O.P.No.773 of 2007, the claimant preferred the instant MACMA. 2) The brief facts are that: a) On 03.05.2006 at about 3:00pm, when the claimant was travelling in an Auto bearing No.AP 28W 6245 from Puranapool to Afzalgunj in Hyderabad and when the auto was turning at Kolkwadi turning, the driver of the said auto drove the auto at high speed and in a rash and negligent manner and dashed the opposite coming auto bearing No.AP 28V 7327 and thus caused the accident. In the resultant accident, the claimant suffered compound fracture of both bones of his right leg, fracture of Acetabulum right leg and dislocation of right hip besides other injuries, for which he took treatment in NIMS Hospital, Hyderabad by incurring huge medical expenditure and he suffered permanent disability and lost his earnings. It is further averred that the accident was occurred due to the fault of the driver of auto bearing No. AP 28 W 6245. With these averments, the claimant filed O.P.No.773 of 2007 against respondents 1 and 2, who are the owner and insurer of the offending vehicle and claimed Rs.3,00,000/- as compensation. b) Respondent No.1 remained ex-parte. c) Respondent No.2/Insurance Company filed counter and additional counters and opposed the claim inter alia contending that the accident was occurred due to the fault of driver of the auto bearing No.AP 23 V 7327 but not the driver of the auto bearing No. AP 28 W 6245 and police also filed charge-sheet against the driver of auto bearing No.AP 23 V 7327 only. R.2 nextly contended that the owner of the auto committed breach of the policy by using the vehicle in violation of the permit. R.2 further contended that the driver of the auto bearing No. AP 28 W 6245 had no valid and effective driving licence as on the date of accident. Finally, while denying all the material averments in the claim petition, R.2 contended that the claim is excessive and untenable and prayed for dismissal of the O.P. d) During trial, PWs.1 to 3 were examined and Exs.A1 to A9 and Exs.X.1 to X.4 were marked on behalf of the claimant. On behalf of R.2, RWs.1 and 2 were examined and Exs.B1 to B4 were marked. On behalf of R.2, RWs.1 and 2 were examined and Exs.B1 to B4 were marked. e) The award shows, the first issue is concerned the Tribunal having regard to the evidence of victim-cum-eye witness i.e, PW.1 coupled with Ex.A.1—FIR and Ex.A.2—charge sheet has concluded that the accident was occurred due to the fault of the driver of the auto bearing No.AP 28 W 6245. Issue No.2 touching the compensation is concerned, the Tribunal basing on the evidence on record awarded Rs.1,22,000/- with costs and interest at 7.5% p.a. as follows: Loss of earning capacity due to disability Rs.1,02,000-00 Medical and other incidental expenditure Rs.20,000-00 Total Rs.1,22,000-00 The tribunal on further observation that there was violation of the permit and policy since the owner used his vehicle outside its territorial permit and also that driver had no valid driving license has held that R2 shall pay compensation and recover from the first respondent. Hence, the appeal by claimant. 3) The parties in this appeal are referred to as they stood before the Tribunal. 4) Heard arguments of Sri U.P. Rao, learned counsel for appellant/ claimant and Sri P.Rajasekhar, learned counsel for Respondent No.2/ Insurance Company. Notice to Respondent No.1/ owner of the vehicle was unserved. However, as he remained ex-parte before tribunal and suffered decree, his absence is not a consequence in view of judgment reported in Meka Chakra Rao vs. Yelubandi Babu Rao @ Reddemma and others ( 2002 ACJ 828 ). 5a) Learned counsel for appellant/claimant firstly argued that the claimant is a Hamali and earning Rs.5,000/- per month but the tribunal erred in fixing his notional income at Rs.15,000/-per annum. He cited the decision of Apex Court in Ramachandrappa vs. Manager, Royal Sundaram Aliance Insurance Co.Ltd. (2011 (6) ALD 75 (SC) and argued that in similar case the Apex Court fixed the notional income of a coolie at Rs.4,500/- per month. He thus argued that income of the claimant should be properly fixed and his future prospects must also be taken into consideration. He thus argued that income of the claimant should be properly fixed and his future prospects must also be taken into consideration. b) Secondly, he argued that though as per Ex.A8 the physical disability of claimant is only 40%, his functional disability is 100% in view of the fact that due to disability and restriction of movement in his right leg claimant is now not able to attend his Hamali work and earn any income and therefore compensation ought to have been calculated taking this fact into consideration. He relied upon decision reported in Parvatlal vs. Bherulal and others (2011 ACJ 2298 (MP) and submitted that in similar case the Madhya Pradesh High Court accepted the functional disability at 60% though doctor certified physical disability at 40% in view of the fact that claimant therein was an agriculturist and labourer. c) Thirdly, learned counsel submitted that though claimant produced medical bills and examined PW3—Financial Controller of NIMS in proof of medical bills, tribunal awarded a very low amount of Rs.20,000/- as against medical bills worth Rs.50,000/-. d) Fourthly, he argued tribunal applied ‘17’ as multiplier but the correct multiplier is ‘18’. He thus prayed to allow the appeal and enhance the compensation. 6 a) Per contra, while supporting the award insofar as quantum of compensation is concerned, learned counsel for R2/Insurance Company argued that the physical disability was rightly certified by doctor at 40% and he deposed that claimant can do lighter works and therefore, the tribunal accepted the functional disability also at 40% and accordingly computed compensation and there is no need to review the same. b) Regarding compensation for medical expenditure he submitted that some of the bills were not tallied with prescriptions and hence tribunal rightly awarded Rs.20,000/-. c) Sofaras pay and recover direction is concerned, learned counsel argued that the tribunal having found that there is clear violation of permit and policy ought not to have given such a direction. He thus prayed for dismissal of the appeal and exoneration of Insurance Company from the liability. 7) In the light of above rival arguments, the point for determination is: “Whether the award passed by the tribunal is factually and legally sustainable” 8) POINT: Accident, involvement of autos bearing Nos.AP 28W 6245 and AP 28V 7327 and injuries to the claimant are not in dispute. 7) In the light of above rival arguments, the point for determination is: “Whether the award passed by the tribunal is factually and legally sustainable” 8) POINT: Accident, involvement of autos bearing Nos.AP 28W 6245 and AP 28V 7327 and injuries to the claimant are not in dispute. As stated supra, the tribunal held that accident was occurred due to fault of driver of claimant’s auto bearing No.AP 28W 6245. It further held that though there was breach of policy and permit, since policy was in force, the 2nd respondent/Insurance Company shall pay compensation and recover the same from the owner. The 2nd respondent/Insurance Company has not preferred any appeal against the above findings. So, in this appeal which is filed by claimant for enhancement of compensation, the Insurance Company cannot challenge the pay and recover direction given by the tribunal. Hence, what remains for determination in this appeal is quantum of compensation. a) The first contention is with regard to income of the claimant. In the OP the claimant was described as Hamali, aged about 25 years. The photo affixed to Ex.A8—disability certificate would give an impression that the claimant was a young man aged between 25 and 30 years. Sofaras his earnings are concerned, the 2nd respondent in para—12 of its counter opposed the same and urged to put the petitioner in strict proof. The claimant in his cross-examination deposed that except his oral assertion there was no proof with regard to avocation and income. He stated that there was no union for Hamalis and no identity card was issued for the Hamalis. He denied the suggestion that he was not working as Hamali and not earning Rs.5,000/- per month. He admitted that he would get the work as per demand. This is about the pleadings and evidence regarding avocation and earnings of claimant. It appears, having regard to lack of proper evidence, the tribunal fixed his notional income at Rs.15,000/- per annum. This fixation is severely impugned by the appellant in this appeal. In this context, I perused the citation in Ramachandrappa’s case (2 supra). In my view, the said decision can be distinguished on facts in view of observations made by Supreme Court in para-14 of the said judgment which are thus: “14. This fixation is severely impugned by the appellant in this appeal. In this context, I perused the citation in Ramachandrappa’s case (2 supra). In my view, the said decision can be distinguished on facts in view of observations made by Supreme Court in para-14 of the said judgment which are thus: “14. In the instant case, it is not in dispute that the Appellant was aged about 35 years and was working as a Coolie and was earning Rs.4,500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of Rs.3,000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was Rs.100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of Rs.3,000/- per month. Secondly, the Appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. (Emphasis supplied) In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, Appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between Rs.100/- to 150/- per day or Rs.4,500/- per month. In our view, the claim was honest and bona-fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from Rs.4,500/- to Rs.3,000/- per month. In our view, the claim was honest and bona-fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the Appellant from Rs.4,500/- to Rs.3,000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4,500/-.” The above observation would show, in that case as against claim of the claimant that he was a coolie and earning Rs.4,500/- per month, there was no contest because first respondent who was the owner of the motor cycle remained ex-parte and 2nd respondent/Insurance Company also, it appears, did not contest the matter. In those circumstances, considering the wages of a labourer during the period of accident (2004 in that case) Honourable Apex Court fixed his monthly income at Rs.4,500/-. However, the Apex Court hastened to add that in all the cases and in all the circumstances, the tribunals need not accept the claim of the claimant in the absence of supporting material and observed that it would depend on facts of each case. In the light of above observations, the case of the appellant/claimant has to be considered. b) In the instant case, the Insurance Company denied the age, avocation and income of the claimant in its counter and cross-examined the claimant and elicited that he would get the income depending upon the demand for coolie work. So, there cannot be any fixed income for the claimant and hence his notional income has to be fixed on a reasonable assessment. Having regard to the young age of the claimant and his earning potentiality during the year 2006 when the accident took place, his notional income can be fixed at Rs.1,800/- per month. To this amount a sum of Rs.300/- can be added towards future prospects. Thus, the total earnings of the claimant would come to Rs.2,100/- per month. His annual income which will serve the purpose as multiplicand comes to Rs.25,200/- (Rs.2,100 x 12). As per the multiplier table provided by the Apex Court in the case of Smt. Sarla Verma and others vs. Delhi Transport Corporation and another ( 2009 ACJ 1298 = AIR 2009 SC 3104 ) ‘18’ is the multiplier for the persons in the age group of 25 years. Hence, the same can be accepted. Thus, the total amount comes to Rs.4,53,600/- (Rs.25,200 x 18). Hence, the same can be accepted. Thus, the total amount comes to Rs.4,53,600/- (Rs.25,200 x 18). c) Then disability is concerned, as per the evidence of PW2 and Ex.A8—disability certificate issued by Medical Board the claimant suffered 40% permanent disability. PW2 deposed that the post traumatic sequelac resulted in ankylosis of right knee joint (stiffness of knee joint). Having regard to it PW2 certified his physical disability at 40% permanent. The contention of appellant is that function wise he suffered 100% disability as he is unable to attend his Hamali work. Though the argument apparently looks sound but the same cannot be accepted in view of the admission of PW2 that the claimant can attend light works. Thus, function wise claimant is not debarred from doing any work though it may be difficult for him now to bear heavy weight as he used do it prior to accident. Therefore, the functional disability also can be accepted at 40% equal to physical disability. Therefore, by reducing the above amount to the extent of 40% we will arrive his loss of earning power at Rs.1,81,440/- (Rs.4,53,600 x 40%). The claimant deserves the said amount. d) Then medical expenditure is concerned, the tribunal on the observation that some of the medical bills mentioned in Ex.A4 do not tally with the prescriptions covered by Ex.A5, has granted Rs.20,000/- towards medical expenditure as against the claim of Rs.50,000/- and odd. In my view, the said amount is on lower side. Having regard to the fact that the claimant suffered Grade III B fracture to both bones of right leg, fracture to right accetabulam and underwent treatment from 03.05.2006 to 07.06.2006 (vide Ex.A3—discharge summary) in NIMS Hospital, Hyderabad, it can be said that he must have incurred medical expenditure more than Rs.20,000/-. In such consideration, medical expenditure is enhanced to Rs.25,000/- . The nature of injuries and treatment suggests that he would require good nourishment for recouping health and hence a sum of Rs.2,000/- is awarded under the said head. Thus, the total compensation the claimant is entitled to is stated below: Loss of earning Capacity due to disability Rs.1,81,440-00 Medical Expenditure Rs.25,000-00 Extra-nourishment Rs.2,000-00 Total Rs.2,08,440-00 The compensation is enhanced by Rs.86,440/- (Rs.2,08,440/- minus Rs.1,22,000/-). Thus, the total compensation the claimant is entitled to is stated below: Loss of earning Capacity due to disability Rs.1,81,440-00 Medical Expenditure Rs.25,000-00 Extra-nourishment Rs.2,000-00 Total Rs.2,08,440-00 The compensation is enhanced by Rs.86,440/- (Rs.2,08,440/- minus Rs.1,22,000/-). 9) In the result, this MACMA is partly allowed and ordered as follows: a) The compensation is enhanced by Rs.86,440/- with proportionate costs and the enhanced compensation shall carry interest at 7.5% p.a. from the date of filing this appeal till the date of realization. b) The respondents shall deposit the compensation amount within one month from the date of this judgment, failing which execution can be taken out against them. c) No order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.