JUDGMENT 1. Heard Sri Challa Gunaranjan, learned counsel for appellant/claimant and Sri Maheswara Rao Kunchem, learned counsel for the 2nd respondent/Insurance Company. 2. The appeal is directed by the claimant against the order and decree dated 22.11.2006 passed in M.V.O.P.No.365/2004 on the file of Motor Accidents Claims Tribunal-cum-V Addl.District Judge (F.T.C.), Anantapur. 3. For the sake of convenience, the parties are arrayed as parties before the learned Tribunal. 4. The appellant/claimant is the injured in the motor vehicle accident. He filed claim petition U/s.166 of Motor Vehicles Act, 1988 claiming compensation of Rs.3,00,000/- for the personal injuries sustained by him in motor vehicle accident. 5. The case of the claimant is that he is aged 19 years, working as Hamali and earning Rs.100/- every day; and on 16.10.2003 at about 04.30 p.m. the claimant was returning from Kalyandurga to his village Narasapuram in a tractor bearing No. AP 02 F 8204 (offending vehicle) along with others; the driver of the tractor drove the vehicle in a rash and negligent manner; the tractor turned turtle; the claimant and others travelling in the tractor fell down and sustained grievous injuries; the claimant was shifted to the Government Hospital, Kalyandurg; later he was shifted to Government Hospital, Ananthapur for better management; the clamant spent Rs.60,000/- towards medical expenses; the claimant became a disabled person on account of the injuries suffered in the accident; police registered a case in Cr.No.48/2004 of Beluguppa Police Station for the offence punishable U/secs.337 and 338 of Indian Penal Code. Hence, the claimant filed the claim petition. 6. The 1st respondent/owner of the offending vehicle filed counter and additional counter, contending that the claimant did not present in the crime vehicle, nor suffered any injury; the claimant received some amount from the 1st respondent and issued receipt acknowledging receipt of the compensation; as the matter was already settled, the claimant is not entitled to seek further compensation. 7. The 2nd respondent/insurer of the vehicle i.e., Insurance Company filed counter and additional counter, contended that the offending vehicle shall be used for agriculture purposes as per permit; the owner of the offending vehicle violated the terms of the permit and policy also; the claimant never travelled as Hamali in the offending vehicle; the Insurance Company is not liable to indemnify the insured i.e., owner of the offending vehicle. 8. 8. Basing on the above pleadings of both parties, the learned Tribunal framed the following issues and additional issue for trial: 1. Whether the accident occurred on 16.10.2003 due to rash and negligent driving of the tractor bearing No. AP 02F 8204 by its driver, turtle the tractor and caused injuries to the petitioner? 2. Whether the petitioner is entitled to compensation? If so, what amount and form which respondent? 3. To what relief? Additional Issue: 1. Whether the petitioner received any amount from the 1st respondent towards full and final settlement or not? 9. Before the learned Tribunal, on behalf of the claimant, five witnesses were examined as P.Ws-1 to 5 and seven documents were marked as Exs.A-1 to A-7 respectively. One witness was examined by the 2nd respondent as R.W-1 and one document was marked as Ex.B-1. 10. The learned Tribunal basing on the evidence, found that there is no evidence establishing that the claimant received any amount from the 1st respondent towards compensation. This finding is not challenged either by the owner of the offending vehicle or insurer i.e., Insurance Company. 11. The learned Tribunal basing on the evidence of P.W-1 and P.W-2 an eye witness to the accident, and also basing on Ex.A-1 copy of FIR and Ex.A-2 copy of police report (charge sheet) found that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. This finding is also not challenged either by the insured or insurer of the offending vehicle. 12. The learned Tribunal considering the evidence placed before it, assessed the injury suffered by the claimant in the accident, and basing on the evidence of P.Ws-3 to 5, who are the doctors examined by the claimant, fixed the disability as partial permanent at 50%. The learned Tribunal fixed the income of injured at Rs.1,500/- per month. Considering the age of injured as 19 years, the learned Tribunal applied multiplier 16', and awarded a sum of Rs.1,44,000/- towards loss of income; Rs.30,000/- towards loss of amenities; and Rs.40,000/- towards pain and suffering, attendant charges and transport expenses. Therefore, the learned Tribunal in all awarded a sum of Rs.2,14,000/- towards just compensation, with interest @ 7.5% p.a. from the date of petition, till the date of realisation. 13. Therefore, the learned Tribunal in all awarded a sum of Rs.2,14,000/- towards just compensation, with interest @ 7.5% p.a. from the date of petition, till the date of realisation. 13. The contention of the appellant/claimant is that the above amount awarded by the learned Tribunal is not a just compensation considering the fact that his right leg was amputated and plates were fixed in the left leg for the treatment of fracture suffered by him to the limbs, and therefore, he is unfit to do any work; Hence, he lost his earning capacity. The learned counsel for appellant would submit that the learned Tribunal ought to have considered the earning capacity on account of the permanent disability as 100% and awarded compensation accordingly. 14. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the learned Tribunal failed to award just compensation? 2. Whether the pay and recovery principle be applied to the case on hand? 3. To what relief? 15. POINT No.1: The evidence of P.W-3 would establish that he was working as Consultant at Apollo Hospital, Anantapur, and he examined the claimant on 16.10.2003. The patient suffered traumatic amputation of right leg grade-I compound fracture of both bones of left leg; left great toe is avulsed; and also suffered crush injury of the left foot; primary debridement was conducted as conservative treatment and operation was conducted to the amputated right leg; left leg fracture of tibia fixed with plates and screws; and he was discharged on 03.11.2003, and Ex.A-5 is the case sheet of Apollo Hospital. 16. The evidence of P.W-4 would disclose that he worked in Medical College, Anantapur, at the material point in time. He examined the claimant on 16.10.2003, who sustained injuries in a road traffic accident. Later the patient was admitted in Apollo Hospital on the same day. The right leg was amputated due to the accident, and the patient suffered fracture of both bones of the left leg, and patient was suggested to go for surgery for amputated leg on the same day, and also surgery was conducted on 19.10.2003 to treat the fracture of both bones of the left leg.The tibia was fixed with 10 role plate and screws, and on 03.11.2003 he was discharged and for removal of implants, it may cost Rs.15,000/- approximately. Ex.A-5 is the case sheet issued by Apollo Hospital, Anantapur. In the cross-examination, he deposed that the right leg of claimant was amputated at the accident spot and debridement was done and wound was cleaned and closed. The left leg injury was subsequently healed, and there is no need for removal of the implant. 17. The evidence of P.W-5 would establish that he is working as Civil Surgeon in Government Medical College, Anantapur, and he examined the claimant on 23.03.2006 as one of the members of the Medical Board, and found that the claimant suffered permanent disability at 50% on account of the amputation of right leg below knee, and patient needs artificial limb for his day to day activities and Ex.A-4 is the disability certificate issued by the Board. 18. Therefore, the above evidence of P.Ws-3 to 5 would establish that the right leg of the claimant below knee was amputated at the accident spot itself, and debridement was done to treat the said wound. Their evidence also would establish that the claimant suffered fracture of two bones of the left leg, surgery was performed, iron plate and screws were fixed to treat the fracture. 19. P.W-5 is a Government Doctor, and Member of District Medical Board, constituted by the Government, examined the claimant after he was discharged from the hospital, and wounds were healed. He assessed the disability suffered by the claimant as partial permanent disability at 50% since his right leg was amputated below the knee level. 20. The Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343 , with regard to assessment of compensation on loss of future earnings on account of permanent disability, in para 6 held 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.' 21. The medical evidence on record would establish that the claimant suffered amputation of right leg below the knee. Hence, he needs an artificial limb to carry on daily activities also. 22. The medical evidence on record would establish that the claimant suffered amputation of right leg below the knee. Hence, he needs an artificial limb to carry on daily activities also. 22. The contention of the claimant is that he is aged 19 years, working as Hamali i.e., eking out his livelihood by doing coolie work. P.W-1 on oath before the learned Tribunal deposed that he is working as Hamali prior to the date of accident. P.W-2 also on oath before the learned Tribunal also deposed that P.W-1 was working as Hamali. Nothing was elicited in the cross-examination to jettison their testimony. No contra evidence was placed before the learned Tribunal either by the owner of the offending vehicle or by the Insurance Company. In that view of the matter, there is no reason to disbelieve their evidence and to say that the claimant was working as Hamali/Coolie prior to the date of accident. 23. Now the question is can he do any work as he was doing prior to the date of accident? 24. Admittedly, the claimant lost his right leg in the road traffic accident. He also suffered fracture to the left leg. Steel plate and screws were fixed to treat the said fracture. Therefore, he cannot attend the coolie work no longer. Hence, it is case of 100% loss of earning capacity on account of partial permanent disability suffered by him. 25. The learned Tribunal considering the evidence placed before it, fixed the daily income as coolie notionally at Rs.50/- per day. Hence, his monthly income is Rs.1,500/-, and the annual income of the claimant comes to Rs.1,500 x 12 = Rs.18,000/-. There are no grounds to interfere with the quantum of income fixed by the learned Tribunal. 26. The learned Tribunal fixed the age of the claimant as 19 years. The learned Tribunal applied multiplier 16' instead of 18' as laid down by the Hon'ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others, 2009 ACJ 1298 . Therefore, the compensation amount entitled by the claimant towards loss of income on account of permanent disability is Rs.18,000 x 18 = Rs.3,24,000/-. 27. The learned Tribunal applied multiplier 16' instead of 18' as laid down by the Hon'ble Apex Court in the case of Sarla Verma and another Vs. Delhi Road Transport Corporation and others, 2009 ACJ 1298 . Therefore, the compensation amount entitled by the claimant towards loss of income on account of permanent disability is Rs.18,000 x 18 = Rs.3,24,000/-. 27. The claimant also entitled to loss of income during the period of treatment for a period of six months, as he undergone treatment for amputation of right leg and fracture to the left leg in Apollo Hospital, Anantapur. Hence, he is entitled to Rs.1,500 x 6 = Rs.9,000/- towards loss of income during the period of treatment. 28. The learned Tribunal awarded Rs.30,000/- towards pain and suffering. The claimant is entitled to some more amount towards pain, suffering and trauma as a consequence of injuries suffered by him. Hence, it is enhanced to Rs.50,000/- from Rs.30,000/-. 29. The learned Tribunal awarded Rs.40,000/- towards medical expenses. In that view of the matter, the claimant in all is entitled to Rs.3,24,000 + 9,000 + 50,000 + 40,000 = Rs.4,23,000/- towards just compensation, for the personal injuries sustained in a motor vehicle accident. 30. The claimant is entitled to interest on the compensation amount of Rs.4,23,000/- 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. This Court do not find any ground to interfere with the rate of interest awarded by the learned Tribunal in view of the Hon'ble Apex Court judgement in the case of National Insurance Company Limited Vs. Mannat Johal, 2019 ACJ 1849 (SC). Accordingly, this point is answered. 31. POINT No.2: The finding of the learned Tribunal is that the accident was occurred due to rash and negligent driving of the driver of the offending vehicle. Therefore, the 1st respondent/owner is vicariously liable to pay the compensation. 32. Now the question is whether the 2nd respondent/Insurance Company is liable to indemnify the insured? 33. The case of the claimant is that he was travelling in the offending vehicle i.e., tractor and trailer as Hamali at the time of accident. This contention is not believed by the learned Tribunal basing on Ex.A-1 copy of FIR placed before it. 32. Now the question is whether the 2nd respondent/Insurance Company is liable to indemnify the insured? 33. The case of the claimant is that he was travelling in the offending vehicle i.e., tractor and trailer as Hamali at the time of accident. This contention is not believed by the learned Tribunal basing on Ex.A-1 copy of FIR placed before it. It is an admitted fact that Ex.A-1 was presented by the claimant himself to the police. Ex.A-1 would disclose that the claimant went to Kalyandurg for a movie function, and while returning to his village in the crime vehicle the impugned accident was occurred. Therefore, his own statement vide Ex.A-1 would show that he was travelled in the tractor and trailer at the time of accident as a gratuitous passenger. In that view of the matter, the 2nd respondent is not liable to indemnify the insured i.e., owner of the offending vehicle. 34. However, the learned counsel for the appellant would submit that even if the appellant is treated as unauthorised passenger travelling in the tractor, pay and recovery principle may be applied directing the Insurance Company to pay the compensation amount firstly and to recover the same from the insured later in view of the following judgments of the Hon'ble Apex Court: 1) National Insurance Company limited Vs. Swaran Singh and others, 2004 ACJ 1 . 2) Manuara Khatun and others Vs. Rajesh Kumar Singh and others, 2017 (4) SCC 796 . 3) Anu Bhanvara etc., Vs. Iffco Tokyo General Insurance Company Limited, 2019 (5) ALD SC 287. 35. The Hon'ble Supreme Court in the case of Shivaraj Vs. Rajendran and another, AIR 2018 SC 4252 , in para 10 held as under: 'At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1).' 36. In the light of the above judgments of the Hon'ble Apex Court, in the case on hand, the 2nd respondent/Insurance Company can be directed to pay compensation firstly and to recover the same from the 1st respondent/insured later, by filing necessary application as per law in the same proceedings. Accordingly, this point is answered. 37. POINT No.3: To what relief? In the light of finding on points No.1 and 2, the appeal is liable to be allowed, by setting aside the order and decree of the learned Tribunal dated 22.11.2006 passed in MVOP 365/2004 on the file of Motor Accidents Claims Tribunal-cum-V Addl. District Judge (F.T.C.), Anantapur. 38. In the result, the appeal is allowed, by setting aside the order and decree dated 22.11.2006 passed in M.V.O.P.No.365/2004 on the file of Motor Accidents Claims Tribunal-cum-V Addl. District Judge (F.T.C.), Anantapur, holding that the appellant/claimant is entitled to a compensation of Rs.4,23,000/- (Rupees Four Lakhs and Twenty Three Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.2,14,000/- against the 1st respondent/insured, as awarded by the learned Tribunal. There shall be no order as to costs. 39. The 2nd respondent/Insurance Company is directed first to deposit the compensation amount of Rs.4,23,000/- (Rupees Four Lakhs and Twenty Three Thousand only), along with accrued interest thereon, within eight (08) weeks from the date of judgment, and can recover the same later from the 1st respondent/insured, in the same proceedings, by filing necessary application as per law. 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. 40. 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. 40. On such deposit, the Appellant/claimant is entitled to an amount of Rs.4,23,000/- (Rupees Four Lakhs and Twenty Three Thousand only), and he is permitted to withdraw the said amount along with accrued interest thereon. 41. 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.