IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO.4865 OF 2010 (MV) BETWEEN The New India Assurance Co Ltd., Branch Kasaragod Kasaragod Town Taluk & District, Kerala State Now Represented by its Regional Manager New India Assurance Co., Ltd., Regional Office, 2-B Unity Building Annexe P. Kalinga Rao Road Bangalore 560 027.
... Appellant (By Sri. A. N. Krishna Swamy, Advocate) AND 1. Naveen Pereira S/o Stanly Pereira Now Aged about 30 years R/o near Pejavar Church Kalavar Post, Via: Bajpe Mangalore.
2. Narayana Shetty S/o Mahalinga Shetty, Major R/o Kote Kunji House H No.1/163, Badradka Post Mogral Puttur, Manjeshwara Kasargod Taluk.
... Respondents (Respondents No.1 and 2 are served.) This MFA is filed under section 173(1) of MV Act against the judgment and award dated 10.02.2010 passed in MVC No.1202/2002 on the file of M.A.C.T. -
VIII and III Additional Civil Judge (Sr.Dn.), Mangalore, D.K. awarding a compensation of Rs.1,38,000/- with interest at 6% p.a. from the date of petition till the date of its realisation.
This MFA coming on for Hearing, this day, the court delivered the following:
JUDGMENT This appeal is preferred by the appellant / New India Assurance Company Limited, challenging the impugned judgment and award passed by the Tribunal in MVC No.1202/2002 dated 10.02.2010 whereby the Tribunal has awarded compensation to the claimant in a sum of Rs.1,38,000/- with interest at 6% per annum.
2. Heard the learned counsel for the appellant – Insurance Company. Notice to Respondent No.1 – claimant and Respondent No.2 – owner of offending bus has been served but they remain unrepresented.
3. Factual matrix of the appeal is that the first respondent – claimant was employed as a driver of a lorry bearing Reg.No.KA-19-7914. On 7.10.2001 at about 3.35 p.m., when he was proceeding in his lorry towards Manjeshwara, a bus bearing Reg.No.KL-14B- 1782 is said to have come in a rash and negligent manner from the opposite side and dashed the claimant’s lorry, as a result of which claimant had sustained grievous injuries including fracture of both bones of right leg and took treatment as an in-patient in City Hospital and underwent major surgery with implants. He was hale and healthy prior to the accident and was earning more than Rs.5,000/- per month and due to the accident he became immobilized and could not work for several months as he required follow up treatment for a long period. Hence, he filed a claim petition before the Tribunal under Section 163(A) of the MV Act claiming compensation for the injuries sustained in the motor vehicle accident.
4. On issuance of summons, the Insurer and owner of the offending bus appeared before the Tribunal and filed their respective written statements.
5. The second respondent – owner of the bus bearing Reg.No.KL-14B-1782 denied all the averments in the claim petition and contended that the bus had a valid insurance policy and the driver had a valid licence to drive a heavy transport vehicle and hence the Insurance Company alone was liable to indemnify the claimant and hence prayed to dismiss the claim petition.
The appellant herein – Insurer of the offending bus had denied all the averments made in the petition. It had contended that the Insurance Policy was not in force as on the date of the accident and hence the said vehicle had no valid insurance coverage and moreover the claim was excessive and exorbitant and hence prayed for dismissal of the petition.
The Tribunal then framed issues and in order to prove the averments of the petition, the first respondent got himself examined as PW.1 and got a witness examined as PW.2 and got marked 13 documents as Exhibits P1 to P13. The insurance policy was got marked as Exhibit R1 on behalf of the Insurance Company.
6. The Tribunal on going through the material on record and taking into consideration the fact that the petition was filed under Section 163(A) of the MV Act, where the negligence aspect as regards the offending vehicle or that of the claimant himself was not required to be proved, has observed that Section 163(A) attracts even an accident which had occurred due to the negligent driving of the victim himself. But however, it has observed that a petition under Section 163(A) of the MV Act could be filed only by a person whose income is upto Rs.40,000/- per annum. Hence, the Tribunal has proceeded to consider his income at Rs.3,000/- per month instead of Rs.6,500/- as claimed by the claimant, in order to grant the compensation towards Disability. The Tribunal by its judgment had allowed the claim petition in part by granting a compensation of Rs.40,000/- towards pain and agony, Rs.18,000/- towards disability, Rs.62,000/- towards medical expenses and Rs.18,000/- towards loss of income during treatment period and in all, it had granted a compensation of Rs.1,38,000/- with interest at 6% from the date of petition till the date of its realisation. It is this judgment which is under challenge in this appeal by the Insurance Company, urging various grounds.
7. The learned counsel for the appellant – Insurance Company contends that though the Tribunal has taken note of the fact that it was a petition filed under Section 163(A) of the MV Act and compensation ought to be granted on a structured formula basis as provided under the said section, it has failed to abide by the Second Schedule applicable, while granting compensation.
Firstly, he contends that the compensation towards ‘Pain and agony’ granted by the Tribunal at Rs.40,000/- is against the Second Schedule, which must have been restricted to Rs.5,000/-.
Secondly, he contends that as per the said Schedule, the compensation towards ‘Medical expenses’ should be capped at Rs.15,000/- as against Rs.62,000/- awarded by the Tribunal under the said head.
Thirdly, as prescribed by the said schedule, compensation towards ‘Loss of income during treatment period’ does not arise at all. Hence, he contends that the Tribunal has erred in awarding Rs.18,000/- under the said head.
However, he fairly submits that since the claimant had suffered grievous injuries including fracture and had also suffered some disability, the amount of Rs.18,000/- awarded by the Tribunal against the said head may not be disturbed.
Thus, he contends that the compensation granted by the Tribunal may be restricted to the above extent, so as to be in line with the Second Schedule prescribed under Section 163(A) of the MV Act.
8. The claimant – first respondent herein as well as the owner – second respondent though served remain unrepresented and have not contested the appeal.
9. On going through the impugned judgment and the contentions put forth by the learned counsel Shri A.N. Krishnaswamy for the appellant – Insurance Company, I find that the Tribunal though has acknowledged the fact that the claim has been preferred under Section 163(A) of the MV Act, has failed to abide by the Second Schedule in awarding compensation to the claimant.
Hence, I find that it would be just and proper to restrict the compensation awarded towards ‘Pain and agony’ to Rs.5,000/- instead of Rs.40,000/-. Further, I hereby restrict the compensation towards ‘Medical expenses’ to Rs.15,000/- instead of Rs.62,000/- awarded by the Tribunal. Moreover, since as per the Second Schedule, no compensation could be granted towards ‘Loss of income during treatment period’, compensation granted by the Tribunal towards the said head stands deleted. However, the compensation of Rs.18,000/- granted by the Tribunal towards ‘Disability’ shall remain undisturbed.
Thus, in all, the claimant / first respondent is entitled to a total compensation of Rs.38,000/- as against Rs.1,38,000/- awarded by the tribunal.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 10.02.2010 passed by the Tribunal in MVC No.1202/2002, the compensation payable to the claimant is reduced from Rs.1,38,000/- to Rs.38,000/-. The reduction in compensation would come to Rs.1,00,000/-. Thus, the claimant is entitled to a total compensation of Rs.38,000/- with accrued interest at the rate of 6%, which entire amount shall be disbursed to the claimant – first respondent, on proper identification. Any excess amount in deposit with the Tribunal shall be refunded to the appellant – Insurance Company.
There shall be no order as to the costs. Office to draw the decree accordingly.
Sd/- JUDGE KS