1. The appellant/Insurance Company filed this appeal under Section 173 of the Motor Vehicles Act, 1988 against the award, dated 25.01.2022 passed in M.V.O.P.No.314 of 2015 on the file of the Court of the Motor Accidents Claims Tribunal-cum-III Additional District Judge, Nellore (for short the Tribunal‟).

2. Respondent No.1/claimant filed the said M.V.O.P seeking compensation of Rs.38,00,000/- for the injuries sustained by him in the motor vehicle accident that occurred on 26.05.2015 involving a hired RTC bus bearing registration No.AP-15-Y-1618. As against the claim of Rs.38,00,000/- the Tribunal granted a compensation of Rs.23,99,278/-. Assailing the same the 2nd respondent - Insurance Company in the M.V.O.P filed this appeal.

3. For the sake of convenience, the parties herein are referred to as they were arrayed before the Tribunal. Claimant No.1 is the injured. Respondent No.1 is the bus driver, Respondent No.2 is the owner of bus bearing registration No.AP-15-Y-1618, Respondent No.3 is the Insurance Company and Respondent No.4 is the Telangana State Road Transport Corporation.

4. The brief facts that lead to the filing of the case are that, the petitioner, was hale and healthy prior to the date of accident and living by doing Maistry of Centering works and also mansonary works, thereby earning Rs.50,000/- per month and contributing the same to his family. On the fateful day of 26.05.2015 at about 03:55 P.M, the claimant was proceeding on his motor cycle bearing No.AP TS 01 EC 6529 along with pillion rider and when he was proceeding near outskirts of Mohanraopet village, NH-63 within Korutla Police Station, Karimnagar District, the 1st respondent who was driving the hired RTC bus bearing No. AP-15-Y-1618 in a rash and negligent manner with high speed at a curve, dashed the motor cycle of the petitioner in opposite direction, as a result, the right leg of the petitioner got separated from the body. Immediately, the claimant was admitted in Omsai Hospital, Jagityala for treatment and there from he was shifted to Sunshine Hospitals, Secunderabad for expert treatment. His right leg was amputated upto knee. The claimant also received grievous injuries over the right leg, fracture of right ring finger and other injuries on his body. He became permanently disabled and lost his earning power. Based on the complaint lodged by the wife of the claimant, a case in Crime No.135 of 2015 was registered on the file of Korutla Rural Police Station and after investigation, charge sheet was filed against the 1st respondent. By the impugned order, the Tribunal allowed the said M.V.O.P awarding compensation of Rs.23,99,278/- against a claim of Rs.38,00,000/. Aggrieved by the same, the appellant/Insurance company filed this appeal.

5. Before the Tribunal, the claimant himself was examined as P.W.1 and got marked Exs.P-1 to P-31 and also got examined P.Ws.2 and 3 through Advocate Commissioner and got marked Exs.C-1 and C-2. On behalf of the respondents, no witness was examined, except marking Ex.B-1 copy of insurance policy.

6. While the 1st respondent-driver and 2nd respondent –owner of the bus remained ex parte, the 3rd respondent – Insurance Company and 4th respondent – Telangana State Road Transport Corporation contested the matter denying all the averments made in the claim petition and sought for dismissal of the appeal.

7. Based on the pleadings, the Tribunal framed necessary issues one as to (1) The culpability in causing the accident and the entitlement of the just compensation by the claimant. With regard to the aspect as to (2) whether the accident occurred due to rash and negligent driving of the bus by its driver or not and (3) whether the bus and its driver are belonging to the 4th respondent corporation or not. Whereas, the Tribunal considering the evidence of PW-1 who is none other than the claimant, and also upon perusing Ex.P-21 charge sheet filed against the Respondent No.1, driver of Respondent No.4, found a clear mention about the rash and negligence in driving the hired RTC bus bearing No. AP-15-Y-1618 which dashed to the motorcycle of the claimant. As such, the claimant could well establish the rash and negligence, coupled with Exs.P-1 and P-22, the Tribunal was of the opinion that Respondent No.1 drove the RTC bus in a rash and negligent manner and committed the accident.

8. Further, the other aspect whether the claimant is entitled to recover compensation, the Tribunal came to an opinion that the claimant cannot transact the works previously used to do by him which required more skill and movement, but with an artificial leg, he cannot carry out on his previous works so effectively and assessed his disability @ 60%. On the facet of earnings of the claimant, the Tribunal upon considering the registered sale deeds, bent of mind in savings, purchasing of property and investing on LIC policies came to conclusion that there is no settled amount of income in favour of the claimant and notionally assessed at Rs.12,000/- per month which would be capable by a person to meet the education expenses, amount spent towards LIC policies, etc, thereby, finally awarded Rs.23,99,278/- under the all the heads viz., Medical Expenses, Purchase of Artificial Limb, Disability Income, Pain & Suffering, Loss of Amenities, Future Expenses, Cost of Litigation, Medical & Incidental charges including conveyance. The Tribunal allowed the MVOP with proportionate costs against Respondent Nos.1 to 4 jointly and severally awarding compensation of Rs.23,99,278/- with interest at 9% per annum from the date of presentation of the petition till the date of realization. Challenging the same, the present appeal is filed.

9. During hearing, Sri Gudi Srinivasu, learned counsel for the appellant/Insurance Company herein contended that, the Tribunal erroneously assessed that the claimant suffered with permanent disability @ 60%, which is contrary to the nature of the work of the claimant i.e. centring work, even though his disability was assessed at 60%, but with sophisticated artificial leg, he can carry out the same work by supervising the same and he can earn amount as good as he earned before the accident. Therefore, since the petitioner can perform or carry out his duties as a Supervisor rather than a worker, the subject disability of the petitioner would be termed as partial disability instead of permanent disability. Learned counsel also argues that, there is a contributory negligence on the part of the petitioner while driving the two wheeler without taking any safety measures as required and by violating the rules, caused the accident. Hence, it can be termed as contributory negligence on the part of the petitioner, therefore, the compensation shall be reduced proportionately by adopting theory of contributory negligence.

10. Learned counsel for the appellant – Insurance company further argued that monthly income of the petitioner is calculated @ Rs.12,000/- per month, which is an excessive calculation, because a person who is doing centring work would be getting that much wages more than Rs.400/- per day, is far fetching, therefore, the monthly income of the claimant can be arrived @ Rs.300/- per day, amounting to Rs.9,000/- per month. Learned counsel for the appellant herein also argued that, then claimant is not entitled for the amount of Rs.30,000/- towards costs of litigation and it is also contrary to the ratio laid down by the Hon‟ble Apex Court in Sarla Verma vs. Delhi Transport Corporation(AIR 2009 SC 3104), National Insurance Company Limited vs. Pranay Sethi(AIR 2017 SC 5157). Therefore, awarding Rs.30,000/- towards costs of litigation is contrary to law, as such, the same cannot be granted and the same should be deducted.

11. On the other hand, learned counsel appearing for Respondent No.1/claimant sought for enhancement of compensation on the ground that the Tribunal erroneously came to a conclusion that about permanent disability @ 60%, ignoring the disability certificate issued by the Medical Board as @ 80%, without assigning any reasons to that effect. Hence, learned counsel pleaded that the ratio of permanent disability should be fixed @ 80% and accordingly the compensation should be enhanced, by calculating the permanent disability @ 80%. He also contravened the finding of the Tribunal at Paragraph No.17 of the Award that, future medical expenses were awarded only 50% even though it is an admitted fact that the claimant requires artificial leg permanently and life of any artificial leg is 3 to 5 years and cost of artificial leg is more than Rs.50,000/-, therefore, awarding Rs.50,000/- for future medical expenses is also contrary to the judgment of the Hon‟ble Apex Court in Mohd. Sabeer vs. Regional Manager, U.P. State Road Transport Corporation(Civil Appeal Nos.9070-9071 of 2022 dated 09.12.2022). He also argued that the medical and incidental expenses are awarded at Rs.1,00,000/- which is also not sufficient and not in accordance with the judgment rendered by the Hon‟ble Apex Court referred supra. He further submits that, even in the absence of any cross appeal by the claimant, this Court has ample power to enhance the compensation under the provisions of Motor Vehicles Act, 1988.

12. Heard both counsels and perused the material available on record.

13. The finding of the Tribunal in respect of monthly income of the claimant @ Rs.12,000/- per month is appropriate and it is not excess, as claimed by the learned counsel for the appellant/Insurance Company, for the reason that the centring work requires some skill and experience. Such person who is engaged in centring work would be called as skilled worker and it is a known fact that wages for such skilled worker involved in construction field is normally double to the general wage of any other individual. Therefore, the finding of the Court below regarding monthly income of the claimant @ Rs.12,000/- is more reasonable, therefore, the said finding of the Tribunal cannot be interfered. Even though learned counsel for the appellant canvassed about the contributory negligence, no positive evidence was let in by the appellant before the Court below. In the absence of any such evidence, the contention of the learned counsel for the appellant/Insurance Company cannot be sustained and hence liable to be rejected.

14. The other contention of the learned counsel for the appellant that awarding Rs.30,000/- towards costs of litigation is certainly contrary to the heads of compensation to be awarded, as per the principle as laid down in Sarla Verma vs. Delhi Transport Corporation, National Insurance Company Limited vs. Pranay Sethi (referred supra) and therefore, the contention of the learned counsel for the appellant awarding Rs.30,000/- towards charges of litigations is contrary to law, for the reason that the claim was arisen out of a welfare legislation i.e. Motor Vehicles Act. The said claim petition is filed by the claimant and not by the appellant/insurance company. For obtaining more compensation, the claimant himself initiated the legal proceedings by filing appropriate petition before the competent court. Therefore, awarding Rs.30,000/- is erroneous and contrary to the ratio laid down by the Hon‟ble Court in the judgments referred supra. Therefore, this Court, without any hesitation hold that, awarding compensation of Rs.30,000/- towards cost of litigation is excessive and contrary to law.

15. Learned counsel for Respondent No.1/claimant canvassed that, even without filing cross objections or appeal or separate appeal, the claimant can seek for enhancement of compensation and placed reliance on the Division Bench judgment of this Court in M/s. The National Insurance Company Limited vs. E. Suseelamma (MACMA No.945 of 2013 dated 04.08.2023), wherein, in Paragraph Nos.61, 63 and 65, it is referred as follows:

                  “61. Order 41 Rule 33 of C.P.C reads as under:- “33. Power of Court of Appeal :- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

                  Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”

                  “Illustration:- A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against

                  X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.”

                  63. In Chaya vs. Bapusaheb, the Hon‟ble Apex Court held that this provision (Order 41 Rule 33 C.P.C) is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the case may require, notwithstanding the fact that the Appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule.

                  65. It is apt to refer Para No.18 as under:- “18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.”

16. In view of the law laid down by the Division Bench of this Court in the judgment referred supra, this Court has got ample power to enhance the compensation if the claimant is entitled as per law, even in the absence of any separate appeal or cross objections by the claimant.

17. The contention of the learned counsel for Respondent No.1/claimant that the Tribunal erroneously came to conclusion measuring permanent disability of the claimant @ 60% contrary to the disability certificate issued by Medical Board which is 80% and the claimant is entitled to the rate of permanent disability, it should be as per the certificate @ 80% is not valid, acceptable and sustainable, for the reason that, assessment of disability of a person in particular, can be determined basing upon various factors, more particularly, where the claimant is able to discharge any alternative earning works and the claimant is able to carry out earlier works with some deviation method or with less performance. In the case on hand, the claimant can carry out his earlier work with sophisticated artificial leg by inspecting the sites and by mobilising the persons, being an expert, he can supervise or carry out centring work by which he can earn something, certainly @ minimum wages. Therefore, the contention of the learned counsel for Respondent No.1/claimant that the claimant is entitled for disability @ 80% is contrary to the facts and findings of the Court below, therefore, the disability @ 60% is reasonable and the said finding cannot be interfered.

18. As far as the other contention of learned counsel for Respondent No.1/claimant that the amount awarded under future and medical expenses @ Rs.50,000/- i.e medical, incidental, for conveyance Rs.1,00,000/- is insufficient and not in accordance with the ratio laid down by the Hon‟ble Apex Court in Mohd. Sabeer vs. Regional Manager, U.P. State Road Transport Corporation (supra), wherein it has been clearly stated by the Hon‟ble Apex Court in Anant s/o Sidheshwar Dukrethat vs. Pratap s/o Zhamnnappa Lamzane (Civil Appeal No. 8420 of 2018 Dated 21.08.2022) that the purpose of fair compensation is to restore the injured to the position as he was in prior to the accident as best as possible. Further, it was held that, In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but not due to the injuries. The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident. Hence, in view of the ratio laid down by the Hon‟ble Apex Court in the judgment referred above, the amount awarded by the Tribunal is contrary to the law and certainly needs to be enhanced.

19. Considering that the right leg of the injured was amputated, in light of Md. Sabeer @ Shabir Hussain (Supra), the total amount is re-calculated as under: