JUDGMENT: Feeling aggrieved by the order and decree dated 20.06.2007 passed in O.P. No.2380 of 2003 by the II Additional Metropolitan Sessions Judge - cum - XVI Additional Chief Judge, Hyderabad (for short ‘the Tribunal’), appellant filed the present appeal. 2. Vide the aforesaid order, the Tribunal has awarded an amount of Rs.45,000/- (Rupees Forty Five Thousand Only) towards compensation with proportionate costs and interest at 7.5% per annum thereon from the date of petition till the date of realization against respondent Nos.1 and 2 jointly and severally as against the claim of Rs.6,00,000/- (Rupees Six Lakhs only) sought by the appellant for the injuries sustained in a road accident occurred on 07.04.2003. 3. Heard Mr. P. Ramakrishna Reddy, learned counsel for the appellant and Mr. S. Agastya Sharma, learned counsel for respondent No.2 - Insurer. Despite service of notice on respondent No.1, none appears. 4. On the analysis of the entire evidence on record, the Tribunal gave a finding that the accident was due to rash and negligent driving of both vehicles and accordingly, fixed the liability on both vehicles at 50% each. 5. The appellant preferred the present appeal challenging the said finding of fixing liability on both vehicles and also quantum of compensation awarded by the Tribunal. 6. According to the appellant - claimant, on 07.04.2003 at about 4.00 p.m. he was travelling with others in an Auto-rickshaw bearing registration No.AP 24U 903 driven by its driver slowly on the extreme left side of the road and when it reached near Musthalapally Bus Stage, a lorry bearing registration No.GJ 7X 1691 driven by its driver in a rash and negligent manner at high speed proceeding from Bhongir to Mothkur came on wrong side and hit the Auto-rickshaw. Due to the said impact, the appellant fell down and had received multiple fractures to both legs and head and also other injuries all over his body. According to him, immediately after the accident, he was shifted to Kamineni Hospital, Narkatpally, Nalgonda District where he was treated as in-patient from 09.04.2002 to 19.05.2003. He sustained compound fracture of right femur middle 3rd, fracture of left femur, swelling of left thigh and left knee joint, lacerations over right feet. 7. According to the appellant, he spent huge amount towards treatment. Prior to the accident, he was running auto-rickshaw and used to earn Rs.5,000/- per month. He sustained compound fracture of right femur middle 3rd, fracture of left femur, swelling of left thigh and left knee joint, lacerations over right feet. 7. According to the appellant, he spent huge amount towards treatment. Prior to the accident, he was running auto-rickshaw and used to earn Rs.5,000/- per month. Because of injuries sustained in the above, he was unable to attend his driving work and lost his income and, therefore, he sought an amount of Rs.6.00 lakhs as compensation. 8. Respondent No.2 - Insurer filed its counter before the Tribunal denying the liability as well as grant of compensation. According to it, the accident was due to rash and negligent driving of the driver of the auto-rickshaw in which the appellant was travelling and that the appellant did not furnish the details of the auto-rickshaw. According to it, the appellant did not furnish the documentary proof with regard to his age, monthly earning capacity and his avocation etc., and finally contending that it is not liable to pay any compensation, sought to dismiss the claim petition. 9. In proof of the claim, the appellant examined himself as PW.1 and also examined the doctor who treated him as PW.2. He exhibited exs.A1 to A18 in support of his claim. Respondent No.2 did not examine any witnesses, however, exhibited copy of insurance policy as Ex.B1. 10. On the analysis of the entire evidence, the Tribunal gave a finding that the accident was due to rash and negligent driving of drivers of both vehicles and accordingly fixed compensation by distributing negligence to drivers of both vehicles at 50% each. The Tribunal gave such a finding on the ground that the claimant did not file scene of offence, panchanama and also by relying on Ex.A1 - FIR and Ex.A2 - charge sheet. 11. As per Ex.A1 - FIR, it is the specific contention of the appellant that the accident was due to rash and negligent driving of driver of DCM Van bearing registration No. GJ 7X 1691. The police after completing the entire investigation filed Ex.A2 - charge sheet in which it is mentioned that the investigation conducted by them reveals that the accident was due to rash and negligent driving of the driver of Eicher (DCM) Van bearing registration No.GJ 7X 1691 on account of which, the appellant received grievous injuries. 12. The police after completing the entire investigation filed Ex.A2 - charge sheet in which it is mentioned that the investigation conducted by them reveals that the accident was due to rash and negligent driving of the driver of Eicher (DCM) Van bearing registration No.GJ 7X 1691 on account of which, the appellant received grievous injuries. 12. The appellant examined himself as PW.1 before the Tribunal and he has categorically deposed that the accident was due to rash and negligent driving of the driver of the DCM Van. It is relevant to note that in both Ex.A1 and A2 and as per the deposition of PW.1, both the vehicles are coming in opposite direction, the driver of the DCM Van drove it in a rash and negligent manner and hit the auto-rickshaw in which the appellant was traveling. However, no where it is mentioned that the accident was due to rash and negligent driving of the driver of the auto-rickshaw in which the appellant was traveling. But, the Tribunal gave a finding that the accident was due to rash and negligent driving of the drivers of both vehicles on the ground of nonfiling of copies of scene of offence and panchanama. 13. It is relevant to note that Respondent No.2 - Insurer did not elicit anything contra from PW.1 during cross-examination that driver of the auto-rickshaw was also responsible for the accident. Therefore, the said finding of the Tribunal is contrary to evidence on record, more particularly, Exs.A1, A2 and deposition of PW.1. 14. However, the learned counsel for the appellant would contend that there is no contributory negligence and if at all it can only be a composite negligence, in which case, it is for the appellant to claim compensation either from both vehicles or from anyone. He has relied upon a decision of the Apex Court in Khenyei v. New India Assurance Co. Ltd., 2015 ACJ 1441 wherein a Three-Judge bench of the Apex Court while dealing with a case of composite negligence has held in paragraph No.18 thus: “(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tortfeasors and to recover the entire compensation as liability of joint tortfeasors is joint and several. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. (ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis-a-vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. (iii) In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tortfeasor can recover the amount from the other in the execution proceedings. (iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.” 15. The learned counsel for the appellant has also relied upon another decision of the Apex Court in T.O. Anthony v. Karvarnan, 2008 ACJ 1165 , wherein the Apex Court while dealing with the words and phrases “composite negligence” and “contributory negligence” held that each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 16. By referring the said decisions, the learned counsel for the appellant would contend that in fact there was no negligence on the part of the driver of the auto-rickshaw in which the injured was traveling and as such there was no contributory negligence on the part of the driver of the auto-rickshaw. According to him, the Tribunal instead of fixing the liability on respondent No.2, insurer of DCM vehicle, has fixed the liability on both vehicles at 50% each. According to him, it is not even composite negligence. 17. The learned counsel for the appellant would also contend that even if it is composite negligence, the appellant being injured is having choice of proceeding against all or any one of them, and in such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. According to the learned counsel for the appellant, in case of composite negligence, the appellant can recover the compensation at his option whole damages from any of them. He would further contend that all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the claimant to the extent it has satisfied the liability of the other. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the Court/Tribunal, in any case one joint tortfeasor can recover the amount from the other in the execution proceedings. He would also contend that it would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award. 18. With the said contentions and also by referring the principle held by the Apex Court in the aforesaid decisions, the learned counsel for the appellant would contend that it is for the appellant - claimant to recover from either of the vehicles or from any one of the vehicles of his choice including its insurer. 19. In the case on hand, admittedly, the accident is not in dispute and also the appellant sustaining grievous injuries in the manner stated above. As discussed above, even assuming for a moment it is composite negligence, the choice is for the appellant to claim compensation either against insurer of the auto-rickshaw or Eicher DCM Van. The Insurer has to pay the compensation to the injured and if it so desires, it has to recover the same from the insurer of the other vehicle. In the case on hand, the appellant claimed the compensation from respondent No.2, Insurer of Eicher DCM Van. Therefore, respondent No.2 being insurer of the Eicher DCM Van is liable to pay compensation. 20. On the other hand, the learned counsel for respondent No.2 - Insurer would contend that if at all it has to recover the compensation paid by respondent No.2 from the Insurer of the auto-rickshaw, the claimant has not furnished any details of the Insurer of the autorickshaw and thereby it is difficult to recover the same from the insurer of the auto-rickshaw. According to him, compensation which respondent No.2 has to pay is tax payers’ money and, therefore, respondent No.2 cannot be directed to pay the entire compensation. Adverting to the same, the learned counsel for the appellant would contend that respondent No.2 did not deny the accident in the counter they have not conducted any investigation, nothing contra was elicited from PW.1 during cross-examination. Therefore, it is for respondent No.2 to pay the entire compensation. 21. As discussed above, the Apex Court has categorically held that it is the choice of the injured to claim compensation from one or both vehicles involved in the accident. In view of the same, respondent No.2 failed to produce any contra evidence and also failed to elicit anything from PW.1 during cross-examination with regard to composite negligence. Even as per Exs.A1 and A2, FIR and charge sheet, respectively, the accident was due to rash and negligent driving of the driver of the Eicher DCM Van. Thus, respondent No.2 being its Insurer is liable to pay the compensation to the appellant. 22. The next issue is with regard to the quantum of compensation. It is the specific contention of the appellant that he sustained compound fracture of right femur middle 3rd, fracture of left femur, swelling of left thigh and left knee joint, laceration over right foot, injuries on head and other injuries all over his body. According to him, he was shifted to Kamineni Institute of Medical Sciences, Narketpally, Nalgonda District after the accident where he was treated as in-patient from 09.04.2002 to 19.05.2003 i.e., for about 12½ months. In proof of the same, the appellant has examined himself as Pw.1 and also examined the doctor who treated him as PW.2. He has filed Exs.A3 to A18 documents, such as discharge summary, admission card, medical prescriptions, disability certificate, X-ray Films, cash payment receipts from Diagnostic Centers etc. As per Ex.A11 - disability certificate issued by Dr. S. Venkat Raman dated 04.02.2006, the appellant sustained 80% disability and Ex.A15 medical certificate of Orthopeadically Handicapped Person, the disability is shown as 70%. 23. PW.2, Professor of Orthopaedics of Osmania General Hospital, Hyderabad, deposed that he has examined the appellant on 20.02.2007 and issued Ex.A15 medical certificate estimating the disability in both lower limbs at 70% which is partial and permanent. There is no contra evidence disproving the same. 23. PW.2, Professor of Orthopaedics of Osmania General Hospital, Hyderabad, deposed that he has examined the appellant on 20.02.2007 and issued Ex.A15 medical certificate estimating the disability in both lower limbs at 70% which is partial and permanent. There is no contra evidence disproving the same. The learned counsel for respondent No.2 - Insurer would contend that the appellant did not examine the doctor who issued Ex.A11, disability certificate and PW.2 is not competent to issue Ex.A15 medical certificate. According to him, the disability certificate has to be issued by referring the injured to the Medical Board. 24. Adverting to the same, the learned counsel for the appellant would contend that though the procedure followed by the Tribunal while deciding the claim is summary procedure, however an opportunity of cross-examination was afforded to respondent No.2 - Insurer to cross-examine PW.2 for eliciting the truth regarding Exs.A15 and A17. Nothing contra was elicited from PW.2. However, the Tribunal on the analysis of the entire evidence including Exs.A11 and A15, considered the disability of the appellant - injured as 70%. This Court is also of the opinion that relying upon the deposition of PW.2 and Ex.A15 - medical certificate, disability of the appellant can be considered as 70%. This Court is satisfied with the reasons given by the Tribunal in arriving at the disability since the said finding is based on the evidence. 25. In view of the consideration of disability of the appellant as 70%, awarding lump sum compensation is not proper and the Tribunal has to apply the multiplier method. The said principle was held by the Hon’ble Apex Court in Anant v. Pratap, (2018) 9 SCC 450 . 26. It is the specific contention of the appellant that he was aged about 22 years as on the date of accident. However, he has not filed any document in proof of the same. In the absence of the contra evidence and since the Insurer failed to disprove the age of the appellant, it can safely be considered the age of the appellant as 22 years. As per the principle held by the Apex Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 , relevant multiplier should be considered as ‘18’. 27. As per the principle held by the Apex Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 , relevant multiplier should be considered as ‘18’. 27. Coming to the monthly earnings of the appellant, it is his specific contention that he used to run the auto-rickshaw and used to earn an amount of Rs.5,000/- per month. Due to serious injuries sustained by him in the manner stated above, he is unable to drive the auto-rickshaw as he was doing prior to the accident. Therefore, he lost his future prospects, apart from loss of earning capacity. By referring the same, the learned counsel for the appellant would contend that the disability of the appellant has to be treated as 100% though as per Ex.A15 discloses the same as 70%. He has relied upon the principle held by the Apex Court in Mohan Soni v. Ram Avtar Tomar, 2012 ACJ 583 , wherein it was held that nature of work of the appellant to be taken into consideration while deciding the loss of earning capacity and disability. The learned counsel for the appellant has also relied upon another decision of the Apex Court in Minu Rout v. Satya Pradyumna Mohapatra, 2013 ACJ 2544 , wherein the Apex Court considered the monthly earning capacity of the driver as Rs.6,000/- though he claimed Rs.5,000/- per month. In the said case, the accident had occurred on 08.11.2004, whereas, in the present case, the accident had occurred on 07.04.2003. By referring the same, the learned counsel for the appellant would contend that the monthly earning capacity of the appellant should be considered as Rs.6,000/-. In the said decision, the Apex Court held that the Tribunal ought to have taken the salary of the deceased driver at Rs.6,000/- per month by taking judicial notice of the fact that the post of a driver is a skilled job. In the present case also, the appellant used to do driving job and, therefore, though he has claimed an amount of Rs.5,000/- per month, but in view of the above said decision, the monthly earning capacity of the appellant has to be considered as Rs.6,000/- and accordingly the same is considered. 28. The learned counsel for the appellant has also relied upon decisions of the Apex Court in Govind Yadav v. New India Assurance Co. 28. The learned counsel for the appellant has also relied upon decisions of the Apex Court in Govind Yadav v. New India Assurance Co. Limited, 2012 ACJ 28 and R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., 1995 ACJ 366 , wherein the Apex Court awarded compensation of Rs.1,50,000/- and Rs.6,00,000/- under the heads ‘pain and suffering’ and ‘loss of amenities of life’ respectively. By referring the said decisions and also the nature of injuries sustained by the appellant, the learned counsel for the appellant would contend that though the appellant claimed an amount of Rs.6.00 lakhs, he is entitled for more compensation. According to him, this Court is having power to award just compensation. In support of his contention, he has relied upon a decision rendered by a larger bench of erstwhile High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Adam Indur Muttemma v. Rathod Reddia, 2015 ACJ 2414 , wherein it was held that compensation more than claim amount can be awarded as just and fair compensation. He has also relied upon the recent decision of the Apex Court in Ramla v. National Insurance Company Limited, (2019) 2 SCC 192 . By referring the said judgment, the learned counsel for the appellant would contend that the appellant is entitled for just compensation. 29. In view of the above said discussion, by treating the disability of the appellant - claimant as 70%, multiplier ‘18’ and the monthly earning capacity at Rs.6,000/-, the appellant is entitled for Rs.9,07,200/- (Rs.6,000/- x 12 x 18 x 70%) towards compensation for the disability sustained by the appellant in the accident. The Tribunal did not consider awarding of compensation on other heads, like extra nourishment, transport charges etc. The appellant is also entitled for an amount of Rs.5,000/- towards transportation charges. Another sum of Rs.1,000/- towards damages to the clothes is also awarded. Because of the injuries and the nature of treatment he had undergone for about 12½ months, the appellant could not attend his avocation causing temporary loss of earnings. Therefore, an amount of Rs.78,000/- for a period of 13 months @ Rs.6,000/- per month is awarded towards temporary loss of earnings. An amount of Rs.26,000/- is awarded @ Rs.2,000/- per month for 13 months towards attendant charges. An amount of Rs.25,000/- is awarded towards extra nourishment. Therefore, an amount of Rs.78,000/- for a period of 13 months @ Rs.6,000/- per month is awarded towards temporary loss of earnings. An amount of Rs.26,000/- is awarded @ Rs.2,000/- per month for 13 months towards attendant charges. An amount of Rs.25,000/- is awarded towards extra nourishment. As per Ex.A9 - medical bills, the appellant spent an amount of Rs.19,973/- towards medicines and since respondent No.2 failed to disprove the same, the said amount of Rs.19,973/- rounding it off to Rs.20,000/- is granted towards medical expenses. 30. The learned counsel for the appellant has also relied upon a decision of the Apex Court in Parminder Singh v. New India Assurance Company Limited, 2019 (5) ALD 62 (SC), wherein interest @ 9% was granted on the compensation from the date of claim petition till the date of recovery contending that the appellant herein is also entitled for the interest at the same rate. In the case covered by said decision, the accident had taken place in the year 2009, whereas in the case on hand, the accident took place in the year 2003. More over, this Court is consistently granting the rate of interest at 7.5%. In the said circumstances, the interest granted by the Tribunal @ 7.5% per annum is maintained and even on the enhanced compensation amount. Thus, in all, the appellant is entitled to Rs.10,62,200/- (Rupees ten lakhs sixty two thousand and two hundred only) under the following heads as against the claim of Rs.6,00,000/- laid by the appellant. i Disability at 70% Rs.9,07,200.00 ii Medical Expenses Rs.20,000.00 iii Extra nourishment Rs.25,000.00 iv Loss of temporary earnings Rs.78,000.00 v Attendant Charges Rs.26,000.00 vi Transport charges Rs.5,000.00 vii Damages to clothes Rs.1,000.00 Total Rs.10,62,200.00 31. In the result, the appeal filed by the Appellant is allowed. Accordingly, the order and decree dated 20.06.2007 passed in O.P. No.2380 of 2003 passed by the Tribunal are modified enhancing the compensation to Rs.10,62,200/- (Rupees ten lakhs sixty two thousand and two hundred only) from Rs.45,000/- (Rupees Forty Five Thousand only) with interest at the rate of 7.5% per annum thereon from the date of petition till realization. The appellant is directed to pay the deficit court fee within a period of one month from the date of receipt of a copy of this judgment. The appellant is directed to pay the deficit court fee within a period of one month from the date of receipt of a copy of this judgment. Similarly, respondent Nos.1 and 2 are jointly and severally directed to deposit the above said amount with interest and costs after deducting the amount, if any, deposited earlier within one month from the date of receipt of certified copy of this judgment and, thereafter, the appellant is permitted to withdraw the same. However, there shall be no order as to costs. As a sequel, Miscellaneous Applications, if any, pending in the appeal shall stand closed.