JUDGMENT : Heard Sri G.V.Mehar Kumar, learned counsel for the appellant/claimant and Sri Shaik Rafi, learned counsel representing Sri T.V.P.Sai Vihari, learned counsel for the respondent No.2/New India Assurance Company. 2. This appeal directed by the appellant/claimant, challenging the Order and Decree dated 09.02.2012 passed in M.V.O.P.No.464 of 2010 before Motor Accidents Claims Tribunal – cum – I Additional District Judge, Vizianagaram. 3. Parties are referred to as they were arrayed in the proceedings before the learned Tribunal, for the sake of convenience. 4. The petitioner/claimant filed the petition under Section 166 of the Motor Vehicles Act, 1939 claiming compensation of Rs.2,00,000/- for personal injuries sustained by him in a motor vehicle accident occurred on 07.03.2010. 5. The case of the appellant/claimant is that he was aged 57 years and working as Archaka in a Sivalayam at Chollapadam Village, Vizianagaram District; on 07.03.2010 he was going on his bicycle to attend duty at Sivalayam; he reached a place located opposite to Sivalayam at about 07.00 a.m.; a lorry (offending vehicle) bearing No.AP31 TA2617 came in opposite direction in a rash and negligent manner; dashed the cycle, as a result, the claimant fell down and sustained injuries on the head, right hand knee joint; he was shifted to Area Hospital, Parvathipuram; and later to K.G.Hospital, Visakhapatnam; he was admitted in the Hospital for about three (03) months as in-patient lying in coma; he suffered permanent physical disability of 80% as per the opinion of the doctor who, issued the physical disability certificate; on account of the permanent physical disability, the claimant suffered paralyses to both legs and hands; he is lying on the bed; he lost eye sight; he lost speech; he lost memory; and also lost control over nature calls; therefore, he suffered loss of earning capacity; hence, filed application U/s.166 of Motor Vehicles Act 1988, claiming compensation for Rs.2,00,000/- under various heads, including loss of future earnings on account of physical disability. 6. The 1st respondent/owner of the offending vehicle remained exparte. 7. 6. The 1st respondent/owner of the offending vehicle remained exparte. 7. The 2nd respondent/Insurance Company filed counter traversing the material averments with regard to manner of accident; rash and negligence on the part of the driver of the crime vehicle; nature of injuries; medical expenditure; age and avocation of the claimant; alleged permanent disability; liability to pay compensation, and contended that the accident was occurred due to the negligence of the claimant; driver of the offending vehicle is not having valid driving licence at the time of accident; and the compensation claimed by the claimant is on higher side. 8. Basing on the above pleadings, the learned Tribunal framed the following issues for trial: 1. Whether the accident occurred resulting in injuries to the petitioner, due to the rash and negligent driving of the vehicle (lorry) bearing No.AP 31 TA 2617 by its driver? 2. Whether the petitioner is entitled to any compensation and, if so at what quantum and from which of the respondents? 3. To what relief? 9. To substantiate claim, the claimant examined three witnesses as P.Ws-1 to 3 and during their evidence marked Exs.A-1 to A-7. No oral or documentary evidence was adduced on behalf of the 2nd respondent/Insurance Company. 10. The learned Tribunal basing on the evidence placed before it, on issue No.1 held that the accident was occurred due to rash and negligent driving of the offending vehicle by the driver of the lorry. This finding is not challenged either by the owner of the vehicle or the insurer of the vehicle i.e., Insurance Company. In that view of the matter, there is no necessity to go into the merit of the finding of the learned Tribunal on the said issue. 11. The learned Tribunal considering the evidence of P.W-1 (wife of the claimant), and the evidence of the doctor (P.W-3), who treated the petitioner/claimant and also issued Ex.A-6-disability certificate, awarded a sum of Rs.1,70,000/- under various heads towards just compensation as under: Sl.No. Description of the head Amount awarded in Rs. 11. The learned Tribunal considering the evidence of P.W-1 (wife of the claimant), and the evidence of the doctor (P.W-3), who treated the petitioner/claimant and also issued Ex.A-6-disability certificate, awarded a sum of Rs.1,70,000/- under various heads towards just compensation as under: Sl.No. Description of the head Amount awarded in Rs. 1 Compensation for transport expenses 1,000-00 2 Compensation towards medicines, extra nourishment and attendant charges 10,000-00 3 Compensation towards shock, pain, suffering and for receipt of serious head injury 50,000-00 4 Compensation for loss of past earnings, loss of earning power, and for partial and permanent disability 84,000-00 5 Compensation for depression and mental stress in life 15,000-00 6 Compensation for future care and attendance expenses 10,000-00 TOTAL Rs. 1,70,000-00 12. Sri G.V.Mehar Kumar, learned counsel for the appellant would submit that the evidence of the doctor (P.W-3) would disclose that on account of the serious head injury; the petitioner/claimant suffered paralysis to the limbs; lost voice; lost memory; and unable to move from the bed; he also lost of eye sight; and he has no control over nature calls; and he confined to bed living like a vegetable; as a result, he is unable to do work, which he was doing prior to the accident; and it is the case of 100% loss of earning capacity on account of permanent disability suffered by the petitioner/claimant, but the learned Tribunal erroneously confined the loss of earning capacity to 80%; further, the learned Tribunal inspite of evidence of wife of the injured that the injured was working as Archaka in a temple, and earning Rs.6,000/- per month, erroneously fixed the income of the injured at Rs.15,000/- per annum treating him as a non-earning member as per Schedule-II of the Motor Vehicles Act 1939, though application is filed U/s.166 of Motor Vehicles Act, and awarded loss of future earnings on a lower side, and therefore, the compensation awarded by the learned Tribunal is not a just compensation; and it requires interference by this Court. 13. 13. The learned counsel appearing for the 2nd respondent/Insurance Company would submit that the learned Tribunal considered the evidence of P.W-1, opined that there is no evidence to establish that the injured was working as purohith in a temple prior to the date of accident, and earning Rs.6,000/- per month; In the said circumstances, fixed his income at Rs.15,000/- per annum as per Schedule-II of the Motor Vehicles Act, 1939; and in the said circumstances, there are no grounds to interfere with the finding of the learned Tribunal. He would further submit that the learned Tribunal rightly considered the age of the injured at 62 years, though he claimed it as 57 years, as the age of the injured mentioned as 62 years in the FIR presented by the son of the injured; and therefore, the learned Tribunal awarded just compensation, and it does not require any modification. 14. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the compensation awarded by the learned Tribunal is not a just compensation? 2. To what relief? 15. POINT No.1: It is an admitted fact that the petitioner/claimant sustained head injury in the motor accident occurred on 07.03.2010 involving the offending vehicle. The petitioner/claimant in order to establish the nature of injuries suffered by him, as well as physical disability on account of the injuries, examined the doctor, who treated him in K.G.Hospital, Visakhapatnam, and issued Ex.A- 6/physical disability certificate. 16. The evidence of Dr.G.Rajasekhar Kennedy would establish that he is working as Assistant Professor, Neurosurgeon, King Jorge Hospital, Visakhapatnam, (Government Hospital) and on 07.03.2010 the claimant was admitted in the hospital with injuries on left frontal, left temporal region and an abrasion, and those injuries are grievous in nature, and the patient was in coma on account of the injuries, and the C.T.Scan revealed fractures in the skull, and the case sheet relating to the treatment of the injured was marked as Ex.A-7. 17. The doctor would further depose that on 15.06.2010 the injured attended before him. He was examined clinically, and it was found that he suffered 80% partial permanent disability, and an account of the disability, the patient lost voice, memory and eye sight. 17. The doctor would further depose that on 15.06.2010 the injured attended before him. He was examined clinically, and it was found that he suffered 80% partial permanent disability, and an account of the disability, the patient lost voice, memory and eye sight. He also lost control to attend nature calls, and suffering with in continuation of bladder problem, and he is unable to move from the bed. 18. Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343 , with regard to compensation on loss of future earnings on account of permanent disability, held in para 6 as under: “Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured.” 19. The evidence of the doctor, who is working in Government Hospital, i.e., K.G.Hospital, Visakhapatnam, and treated the claimant at the time of admitting in the hospital, and examined him after the claimant was discharged from the hospital, would show that the claimant/petitioner cannot attend any work much less the work of an Archaka. Therefore, the loss of earning capacity on account of functional disability be fixed as 100%. Therefore, the compensation shall be awarded accordingly, treating the loss of future earning capacity as 100%. 20. It is the contention of the claimant that he was working as Archaka in a temple and earning Rs.6,000/- per month at the time of accident, occurred in the year 2010. It is an admitted fact that he was not in a position to move from the bed or speak, and also lost memory, as well as eye sight on account of the head injury suffered by him in the motor accident. Hence, question of examining him as witness before the learned Tribunal is not possible. Naturally his wife was examined as a witness i.e., P.W-1. 21. P.W-1 on oath deposed that her husband was working as Archaka in a Sivalayam temple and earning Rs.6,000/- per month. She was cross-examined by the respondent No.2/Insurance Company. Hence, question of examining him as witness before the learned Tribunal is not possible. Naturally his wife was examined as a witness i.e., P.W-1. 21. P.W-1 on oath deposed that her husband was working as Archaka in a Sivalayam temple and earning Rs.6,000/- per month. She was cross-examined by the respondent No.2/Insurance Company. But nothing was elicited to disbelieve her statement, except putting usual suggestions denying everything has false. Therefore, in the absence of any material to disbelieve her oral statement made on oath as per Section 3 of the Evidence Act, 1872, and in the absence of any contra evidence, this Court is of the considered opinion that the learned Tribunal ignored established principles on how to appreciate oral evidence, and erroneously disbelieved the evidence of P.W-1. 22. In the light of evidence of wife of the injured, and as there is no contra evidence placed by the 2nd respondent/Insurance Company, the income of the injured be considered as Archaka working in a temple, and can be fixed at Rs.6,000/- per month. The annual income of the injured is Rs.6,000x12 = Rs.72,000/-. 23. The age of the injured was claimed as 57 years at the time of accident. It is an admitted fact that FIR i.e., Ex.A-1 was presented by the son of the injured, where under, the age was mentioned as 62 years, at the earliest point of time. No evidence was placed to prove the age of the injured as 57 years The learned Tribunal considered the age of the injured at 62 years. In that view, it does not require any modification. 24. Multiplier applicable is ‘7’ as the claimant be placed in the age group of ’61 to 65 years’. Hence, the loss of future earnings on account of permanent disability comes to Rs.72,000x7 = Rs.5,04,000/-. 25. The learned Tribunal awarded a sum of Rs.1,000/ towards transport expenses, Rs.10,000/- towards medicine, extra nourishment and attendant charges basing on Ex.A-5 medical bills placed by the claimant. The learned Tribunal also awarded a sum of Rs.50,000/- towards shock, pain, suffering and for receipt of serious head injury. Considering the nature of injury i.e., grievous injury, fracture of skull and consequent trauma, the compensation under above heads in all, can be enhanced to Rs.1,00,000/-. 26. The learned Tribunal also awarded a sum of Rs.50,000/- towards shock, pain, suffering and for receipt of serious head injury. Considering the nature of injury i.e., grievous injury, fracture of skull and consequent trauma, the compensation under above heads in all, can be enhanced to Rs.1,00,000/-. 26. The learned Tribunal awarded a sum of Rs.10,000/- towards future care and attendance expenses and also awarded Rs.15,000/- for depression and mental stress in the life. It is an admitted fact that on account of the functional disability suffered by the claimant, he has been confined to bed due to paralysis, lost eye sight, memory, speech and also control over attending nature calls. Hence, he requires treatment throughout his life for the above problems. Hence, this amount be enhanced to Rs.1,00,000/-. Therefore, in all the claimant is entitled to Rs.7,04,000/- as under: Sl.No. Description of the head Amount awarded in Rs. 1 Compensation for loss of future earnings on account of permanent disability 5,04,000-00 2 Compensation towards Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. 1,00,000-00 3 Compensation for pain, suffering and trauma as a consequence of the injuries 1,00,000-00 TOTAL Rs. 7,04,000-00 27. The claimant is entitled to interest on the compensation amount of Rs.7,04,000/- as per section 171 of M.V.Act, 1988. The learned Tribunal awarded interest at 7.5% p.a. from the date of petition, till the date of deposit. Considering the date of accident and prevailing rate of interest, in view of the Apex Court judgement in National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). this Court do not find any ground to interfere with the rate of interest awarded by the Tribunal at 7.5% p.a., from the date of petition, till the date of deposit. 28. The Hon’ble Apex Court in the case of Mona Baghel and others Vs. Sajjan Singh Yadaav and others, 2022 Live Law (SC) 734, held that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. Therefore, though the claimant sought for a lesser amount, and the claim petition being valued at lesser value for Rs.2,00,000/-, the amount actually due and payable to be awarded is Rs.7,04,000/-. 29. In view of the above judgment of the Hon’ble Apex Court case, the Court shall award just compensation, even if it exceeds the amount claimed by the claimants, subject to payment of court fee. In that view of the matter, this Court is of the considered opinion that the appellant/claimant is entitled to Rs.7,04,000/- towards just compensation. In that view of the matter, the judgment and decree passed by the learned Tribunal is liable to be set aside. 30. In the light of above discussion, the appeal filed by the appellant/claimant be allowed, by setting aside the judgment and decree passed by the learned Tribunal, in MVOP 464/2010. Accordingly, the point is answered. 31. POINT No.2: To what relief? In the light of finding on point No.1, the appeal be allowed, setting aside the judgment and decree dated 09.02.2012, passed by the learned Tribunal. 32. In the result, the appeal is allowed, setting aside the judgment and decree dated 09.02.2012 passed in M.V.O.P.No.464/2010 on the file of Motor Accidents Claims Tribunal-cum-I Addl.District Judge, Vizianagaram, holding that the appellant/claimant is entitled to a compensation of Rs.7,04,000/- (Rupees Seven Lakhs and Four Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.1,70,000/- as awarded by the learned Tribunal. The respondents No.1 and 2 are jointly and severally liable to pay the compensation amount to the appellant/claimant. There shall be no order as to costs. 33. The 2nd respondent/Insurance Company is directed to deposit the compensation amount of Rs.7,04,000/- (Rupees Seven Lakhs and Four Thousand only), along with accrued interest thereon, within eight (08) weeks from the date of judgment. In the event of the 2nd respondent/Insurance Company had already deposited some amount, the said amount be excluded, and the balance amount shall be deposited within eight (08) weeks from the date of judgment. 34. In the event of the 2nd respondent/Insurance Company had already deposited some amount, the said amount be excluded, and the balance amount shall be deposited within eight (08) weeks from the date of judgment. 34. On such deposit, the Appellant/claimant is entitled to an amount of Rs.7,04,000/- (Rupees Seven Lakhs and Four Thousand only), and he is permitted to withdraw the said amount along with accrued interest thereon. 35. The appellant/claimant is directed to pay the required court fee before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989, within one month from the date of receipt of certified copy of judgment. As a sequel, miscellaneous applications pending, if any, shall stand closed.