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The New India Assurance Co. Ltd., Represented by the Senior Divisional Manager, Belgaum v/s Vinod & Another

    Miscellaneous First Appeal Nos. 100061, 100062 of 2014 (MV)

    Decided On, 10 January 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellant: M.Y. Katagi, Advocate. For the Respondents: Notice to R2 is held sufficient.



Judgment Text

(Prayer: This MFA filed U/S 173(1) of MV Act, 1988, against the judgment and award dated: 06-09-2018 passed in MVC No.206/2012 on the file of V-Addl. District Judge and Member VI-Addl. MACT, Belgaum, awarding the compensation of Rs.4,03,000/- with interest at the rate of 8% P.A., from the date of petition till its deposit.

This MFA filed U/S 173(1) of MV Act, 1988, against the judgment and award dated:06-09-2018 passed in MVC No.208/2012 on the file of V-Addl. District Judge and Member, VI-Addl. MACT, Belgaum, awarding the compensation ofRs.4,31,000/- with interest at the rate of 8% P.A., from the date of petition till its deposit.)

1. These two appeals have been preferred by the appellant/petitioner assailing the judgment and award, dated 06.09.2013, passed by the V Additional District Judge and Member, VI Additional MACT, Belgaum (hereinafter referred to as ‘the Tribunal’, for short), M.V.C. Nos.206 and 208 of 2012.

2. Heard. The appeals are admitted and

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with the consent of the learned counsel for the parties, the same are taken up for final disposal.

3. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

4. Brief facts of the case are that,

On 05.09.2011, at about 10.30. p.m., the petitioner Vinod was proceeding on a motor cycle bearing registration No.KA-23/Q-8998, along with Bheemarao as a pillion rider. When they came near Honnihalli cross a car bearing registration No.MH-09/BM-7012 came rashly and negligently and dashed against the motor cycle on which the petitioners were proceeding and as a result of the same, they fell down and sustained grievous injuries. For having sustained injuries, both the petitioners filed claim petitions under Section 166 of the Motor Vehicles Act claiming compensation by contending that they were working in a foundry and earning Rs.9,000/- per month.

In response to the notice the 2nd respondent-insurance company appeared and filed written statement. However, respondent No.1, in spite of service of notice, did not appear and hence, he was placed ex parte.

Respondent No.2-insurer, in its written statement, denying the contents of the claim petitions, contended that the alleged accident had taken place due to the fault of the rider of the motor cycle. The insurer further contended that the rider of the motor cycle entered the National Highway without observing the traffic rules. The insurer further contended that the rider of motor cycle was not holding a valid and effective driving licence and as such, the insurer is not liable to pay any compensation.

On the basis of the above pleadings, the Tribunal framed the following issues for its consideration:

M.V.C.No.206/2012

'1. Whether the petitioner proves that the First Respondent drove the Vehicle Bearing No.MH-09/BM-7012 in a rash and negligent manner and caused the accident?

2. Whether the Second respondent prove that Maruti Car bearing No.MH-09/BM-7012 has not been insured with them and further the First Respondent had no valid and effective Driving License to drive the vehicle?

3. Whether the Second Respondent further prove that the Accident has taken place due to the negligence of the driver of the Motor Cycle bearing No.KA-23/Q-8993 and they are also necessary party to the proceedings?

4. Is the petitioner entitled for the compensation as claimed in the petition?

5. To what order or decree?'

M.V.C.No.208/2012

'1. Whether the petitioner proves that the First Respondent drove the Vehicle Bearing No.MH-09/BM-7012 in a rash and negligent manner and caused the accident?

2. Whether the Second respondent prove that Maruti Car bearing No.MH-09/BM-2012 has not been insured with them and further the First Respondent had no valid and effective Driving License to drive the vehicle?

3. Whether the Second Respondent further prove that the Accident has taken place due to the negligence of the drive of the Motor Cycle bearing No.KA-23/Q-8998 and they are also necessary party to the proceedings?

4. Is the petitioner entitled for the compensation as claimed in the petition?

5. To what order or decree?'

In order to prove their case, the petitioner in M.V.C. No.206/2012 got examined himself as P.W.1, the petitioner in M.V.C. No.208/2012 got examined himself as p.W.2, they got examined a doctor as P.W.3, and marked the documents as Exs.P.1 to P.22. On behalf of the respondent No.2, no oral evidence was led. However, insurance policy, was got marked as Ex.R.1. After hearing the parties to the lis, the impugned judgment and award came to be passed by the Tribunal Assailing the said judgment and award, the respondent No.1-insurer is before this Court. 5. The main grounds urged by learned counsel for the respondent No.1/appellant-insurer are that the compensation awarded by the Tribunal is on the higher side. The Tribunal taking the disability on the higher side has awarded higher compensation. He further contended that granting of compensation under the head ‘pain and suffering’ and the compensation for the injuries is duplication of compensation and in that light the compensation awarded is on the higher side. He further contended that the notional income taken is also on the higher side. On these grounds, he prayed for allowing the appeal by reducing the compensation.

6. Though notices have been served on the respondents in these appeals, they have not put in their appearance.

7. The accident in question is not in dispute and so also the involvement of the offending vehicle insured with the insurer.

8. As could been seen from the judgment and award in M.V.C. No.206/2012, the petitioner therein has sustained comminuted fracture of 1 to 5 metatarsal bones of left foot, fracture of lower third fibula shaft left side and fracture of left clavicle lateral side. In order to substantiate the said fact he has produced the wound certificate as per Ex.P.6. In order to substantiate the fact that he has suffered disability, he has examined P.W.3, the doctor. In his evidence, the doctor-P.W.3 has deposed that the has issued the disability certificate as per Ex.P.11 and has also deposed that because of the injuries he cannot stand for a long time; he is having pain and while walking he tilts towards left side; though the bones have united, they have not united properly. In that light, the doctor has assessed the disability to the extent of 10% to 30%. Though the doctor has assessed the said disability the Tribunal by taking 12% disability and the notional income at Rs.6,000/- has awarded a sum of Rs.1,50,000/- for the fractures; Rs.25,000; towards pain and suffering; Rs.34,000/- towards medical expenses; Rs.10,000/- towards transportation charges; Rs.5,000/- towards nutritional food; and Rs.20,000/- towards ‘loss of amenities’; Rs.12,000/- towards ‘loss of income during laid up period; and an amount of Rs.1,46,880/- towards ‘loss of future income’.

9. Though, under the normal circumstances, the compensation awarded by the Tribunal appears to be justifiable, the compensation awarded under the head ‘pain and suffering’ and the compensation for the injury itself appears to be double assessment and in that behalf the same requires to be reduced. Insofar as the compensation awarded under other heads appears to be just and proper. In that light, if an amount of Rs.60,000/- is awarded under the head ‘pain and suffering’ and the compensation on the other heads are kept intact, the petitioner in M.V.C. No.206/2012 is entitled to Rs.2,88,000/- with interest at 6% per annum.

10. As could been seen from the judgment and award in M.V.C. No.208/2012, the petitioner therein has sustained compound fracture of left tibia and fibula, fracture of left clavicle and displaced fracture of left public rami. In order to substantiate the said fact he has produced the wound certificate as per Ex.P.14. In order to substantiate that he suffered disability, he has examined P.W.17, the doctor. In his evidence, the doctor-P.W.3 has deposed that he has issued the disability certificate as per Ex.P.17 and has also deposed that the petitioner has suffered disability to the extent of 30%. However, the Tribunal taking 12% disability, and the notional income of Rs.6,000/-, has awarded a sum of Rs.1,50,000/- for the fractures; Rs.25,000; towards pain and suffering; Rs.37,000/- towards medical expenses; Rs.10,000/- towards nutritional food; and Rs.20,000/- towards ‘loss of amenities’; Rs.12,000/- towards ‘loss of income during laid up period; Rs.25,000/- towards frustration; and an amount of Rs.1,47,000/- towards ‘loss of future income’.

11. Though, under the normal circumstances, the compensation awarded by the Tribunal appears to be justifiable, but as could be seen from the judgment and award, the Tribunal while awarding the compensation has awarded the compensation doubly under the head of injury by itself and pain and suffering and in that behalf the same requires to be reduced. Insofar as the compensation awarded under other heads appears to be just and proper. In that light, if an amount of Rs.60,000/- is awarded under the head ‘pain and suffering’ and the compensation on the other heads are kept intact, the petitioner in M.V.C.No.208/2012 is entitled to Rs.3,16,000/- with interest at 6% per annum.

12. Accordingly, both the appeals are allowed. The judgment and award, dated 06.09.2013, passed by the Tribunal in M.V.C. Nos.206/2012 and 208/2012, is hereby modified as indicated above.

The amount in deposit may be transmitted to the jurisdictional Tribunal and the amount, if any required, shall be deposited within a period of six weeks from the date of receipt of certified copy of this order.

Registry is directed to draw the award accordingly and also to send back the lower court records forthwith.
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