This Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 (1988 Act, for brevity) is against the award, dated 26.11.1997 in O.P.No.434 of 1993 passed by Motor Accident Claims Tribunal, Eluru granting a sum of Rs.34,000/-for injuries.

The case of appellant is as follows. On 07.03.1993, he was travelling along with his wife and fourth respondent, who was the owner of the car, in Maruti Car bearing No.AP-7-T-2588 (insured of fifth respondent) from Guntur to Kakinada. Between Chebrolu and Kaikaram, oil tanker lorry bearing No.ATW-1002 dashed against the car resulting in serious injuries to petitioner. A criminal case being C.C.No.286 of 1993 on the file of the Additional Judicial Magistrate of First Class, Tadepalligudem, was taken cognizance of the case. He was admitted to hospital at Eluru. On 09.03.1993, he was shifted to a private hospital in Guntur, wherein his leg was operated. He was discharged on 30.03.1993. In spite of operation, he was not able to walk properly or sit properly. He required another operation for which he had to go to Madras. In his O.P., he claimed Rs.4,95,000/- towards loss of future earning capacity due to permanent disability, Rs.35,000/- towards medical treatment and extra nourishment, Rs.45,000/- for pain and suffering and Rs.25,000/- for loss of amenities. He also alleged that he was engaged in iron business earning a sum of Rs.5,000/- per month.

Respondents 1, 2 and 4 remained ex parte and respondent No.3, the insurer of oil tanker, contested the case. It was alleged that the driver of Maruthi car rashly and negligently tried to overtake another vehicle and dashed against oil tanker, and therefore, appellant is not entitled for any compensation. Learned Tribunal settled two issues for trial. The appellant examined P.Ws.1 to 4 and marked Exs.A.1 to A.54. No evidence was let in by insurer. On considering oral and documentary evidence, learned Tribunal believed the version of appellant and came to a conclusion that accident occurred due to rash and negligent driving of oil tanker lorry. The learned Tribunal, having regard to the fact that appellant underwent operation on 10.03.1993 before filing O.P., and subsequently also underwent operation at Madras after filing O.P., did not allow the amount claimed as per Exs.A.6 to A.39. In doing so, learned Tribunal applied the ratio laid down by this Court in United India Insurance Company Limited v Shaik Saibaqtualla 1992 ACJ 858. Learned Tribunal awarded an amount of Rs.1000/-each for four simple injuries and Rs.15,000/-for grievous injuries under all heads and Rs.15,000/- for partial temporary disability, thus totalling to Rs.34,000/-.

In this appeal, learned counsel for appellant relies on the evidence of P.Ws.3 and 4, and Exs.A.6 to A.39 to contend that as the appellant underwent major surgery after filing the O.P., learned Tribunal ought to have taken into consideration the amounts incurred by appellant for medical expenses. He also challenges the award on the ground that it denied loss of earning capacity and future earnings contrary to law. He relies on the decision of Supreme Court in Nagappa v Gurudayal Singh 2003 (1) ALD 1 (SC) : 2003 ACJ 12. Per contra, learned standing counsel for United India Insurance Company Limited submits that an amendment of O.P., cannot be allowed and even subsequent to filing O.P., the claimant incurred medical expenses for medical treatment, the same cannot be allowed. He relies strongly on Shaik Saibaqtualla (supra). In Shaik Saibaqtualla (supra), a Division Bench of this Court considered the question whether the petition for amendment of O.P., filed under Section 110-A of the Motor Vehicles Act, 1939 (1939 Act, for brevity) can be allowed.

The Division Bench after referring to Shikharchand v D.J.Karini Sabha AIR 1974 SC 1178 and Anand Kumar Jain v Union of India 1986 ACJ 774 (SC) took a view that as there is no provision in the 1939 Act for amending the O.P., after a period of limitatio