Oriental Insurance Company is the appellant who filed the appeal challenging the quantum of compensation granted in OP No.653 of 1998 dated 9.8.2000 on the file of the Motor Accidents Claims Tribunal-cum-Additional District Judge, Vizianagaram, filed under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs.1 ,50,000/-.

2. The brief facts of the case are as follows:

On 8.1.1998 the petitioners have boarded the auto bearing No.AP 35 T 2074 at Rajapulova Junction to go to their respective places of work from residence, the first respondent-driver of the auto drove the vehicle in a rash and negligent manner, due to which, the auto turned turtle and the petitioner sustained both simple and grievous injuries and immediately all of them were shifted to Government Hospital, Vizianagaram for treatment. Hence, laid a claim for compensation against respondents 1 to 4 who are driver, owner and insrers of the vehicle.

3. Respondents 1 and 2 who are driver and owner of the auto respectively remained ex parte. The third respondent United Insurance Company filed the counter denying the material averments of the petitions and contended that the driver is not having valid driving licence to drive the vehicle and the petitioners have to prove that the policy covers the risk of passengers, the various amounts claimed by the petitioners and prayed for dismissal of the petitions. The third respondent-United Insurance Company again filed counter contending that the auto bearing No.AP 35 T 2074 was insured with the respondent Oriental Insurance Company Limited, Visakhapatnam by its owner second respondent vide Cover Note No.505358 and prayed to exonerate the 3rd respondent United Insurance Company from its liability.

4. On behalf of claimants, PWs.1 to 5 were examined and Exs.A1 to A IS were marked. On behalf of respondents DWI was examined and Exs.B1 and B2 were marked.

5. On the basis of the above pleadings, the following issues were settled for trial.

I. Whether the accident and the injures to the petitioner are due to rash and negligent driving of auto bearing No.AP 35 T 2074 by Rl driver?

2. Whether the petitioner is entitled for any compensation, if so, from which of the respondents?

3. To what relief?

6. In view of the plea raised by R3United India Insurance Company, the petitioner in OP Nos.653 and 655 of 1998 filed IA No.1248 of 1999 to implead the Oriental Insurance Company Limited as 4th respondent, and that petition was allowed and the Oriental Insurance Company Limited was impleaded as 4th respondent and filed its counter denying the averments made in the petition and the amounts claimed in all the OPs are excessive and finally prayed for dismissal of the petitions as the auto is not having the permit to carry passengers.

7. The Tribunal again after filing the counter by R4-0riental Insurance Company Limited framed the following additional Issues:

1. Whether the accident vehicle auto is having proper permit to carry passengers and if so how many to carry in auto?

2. Whether the accident vehicle i.e., auto was driven by the duly licensed driver and is he having proper driving licence?

8. On consideration of the oral and documentary evidence, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the auto bearing No.AP 35 T 2704 by its driver. With regard to the quantum of compensation, the Tribunal fixed the earning capacity of the appellant at Rs.40/- per day for 25 days as an unskilled labourer and thus his monthly income comes to Rs.1,000/- and annual income comes to Rs.12,000/- and thus the compensation fixed at Rs.21,600/- (12,000x18 x 10/100). Being aggrieved by the same, the Oriental Insurance Company preferred this appeal.

9. Learned Counsel appearing for the appellant submits that the learned Judge ought to have observed that there was no stage carriage permit to run Auto Rikshaw on hire basis. He also submits that the learned Judge ought to have appreciated the evidence