IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.896 OF 2013 (MV) BETWEEN The Oriental Insurance Company Ltd., Opp. Town Hall Chikpet, Madikeri, Kodagu District, Rept. By its AO/Authorised Official at Regional Office, 44/45, Leo Shopping Complex, Residency Road, Bengaluru-560 025. ... Appellant (By Sri. S. Srishaila, Advocate) AND 1. Somaiah, Aged about 29 years, S/o Late M. M. Didappa, R/o Sulrabhi Village and Post, Somwarpet, Kodagu District.
2. T. K. Kaverappa, Aged about 55 years, S/o T. D. Kuttappa, R/o Garvale Village and Post, Somwarpet, Kodagu District.
3. Smt. Madarbee Major, W/o Khaja Sahib, C/o Veeraraj, Madikeri Road, Somwarpet, Kodagu District. ... Respondents (By Sri. V. Srinivas, Advocate for R1;
R2 Served; R3 dismissed v/o dtd.25.01.2018) This MFA is filed under Section 173(1) of M.V.Act against the judgment and award dated 29.09.2012 passed in MVC.No.6/2012 on the file of the Senior Civil Judge & MACT, Madikeri, awarding a compensation of Rs.3,54,126/- with interest @ 6% p.a. excluding Future Medical Expenses of Rs.20,000/- from the date of petition till the date of deposit.
This MFA is coming on for Admission, this day, the court made the following:
J U D G M E N T The Insurer is in appeal under Section 173 (1) of Motor Vehicles Act, against the judgment and award dated 29.09.2012 in M.V.C. No.6/2012 on the file of the Senior Civil Judge and MACT, Madikeri.
2. The claim petition was filed under Section 166 of the Motor Vehicle Act, claiming compensation for the injuries sustained in a motor vehicle accident occurred on 26.04.2011.
3. It is stated that on 26.04.2011, when the claimant along with his friend Yogesh was proceeding on motorbike bearing Reg.No.CKS-6959, Jeep bearing Reg.No.KA-34-M- 1009 came in a rash and negligent manner with high speed and dashed to the claimant’s motorbike. Due to which, the claimant fell down and sustained injuries. Immediately, he was taken to Government Hospital, Somwarpet and thereafter shifted to Tejasvini Hospital, Mangaluru, wherein he took treatment as inpatient from 27.04.2011 to 13.05.2011. The claimant states that he was doing agricultural work and was earning Rs.9,000/- per month. He was aged 28 years as on the date of accident.
4. On issuance of notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their objections. Respondent No.1 denied that the accident caused due to the rash and negligent riding of the motorbike by respondent No.4. Learned counsel for the appellant states that the Insurer filed the objections denying the claim petition averments.
5. The claimant examined himself as PW.1 and got marked 58 documents as Exs.P.1 to P.58 also examined CW.1 – Doctor and marked documents at Exs.C.1 to C.7. Respondent No.3 marked Ex.R.1 – Insurance Policy.
6. The Tribunal on appreciating the material placed on record, awarded total compensation of Rs.3,54,126/- with interest at 6% per annum from the date of petition, till the date of realization on the following heads:
Amount in (Rs.)
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.9,000/- per month and assessed the whole body disability at 10%. The Insurer is in appeal aggrieved by the assessment of income of the claimant at Rs.9,000/- per month and also aggrieved by saddling the liability on it.
7. Heard the learned counsels for the appellant - Insurer and learned counsel for the respondent - Claimant. Perused the material on record including the lower court records.
8. Learned counsel for the appellant – Insurer would submit that the claimant failed to take steps on respondent No.2, owner of the offending vehicle - Jeep and the claim petition was dismissed against respondent No.2 – Owner. Since, the claim petition was dismissed against respondent No.2 - Owner, the claim petition against the Insurer would not be maintainable since the Insurer is the only which indemnifies the compensation awarded by the Tribunal.
Thus, he submits that the claim petition is liable to be dismissed. Secondly, the learned counsel submits that the assessment of income of the claimant by the Tribunal at Rs.9,000/- per month is on the higher side. He further submits that the claimant in claim petition has stated that he was earning 9,000/- per month by doing agricultural work. But he has not placed any material to indicate his income and has not examined any other person in support of his contention that he was earning Rs.9,000/- per month. In the absence of any material to indicate the exact income of the claimant, the notional income assessed at Rs.9,000/- per month for the accident of the year 2011 is on the higher side. Thus, he prays for reduction in compensation awarded by the Tribunal and prayed for allowing the appeal.
9. Per Contra, learned counsel for the respondent – claimant would submit that the compensation awarded by the Tribunal is just compensation which needs no interference. He further submits that the claim petition against respondent No.2 - owner was dismissed before the Tribunal and negligence was held against the driver. Therefore, the dismissal of claim petition against the owner of the Jeep will have no consequences. Thus, he prays for dismissal of the appeal.
10. Having heard the learned counsel for the parties and on perusal of the material on record including the lower court records, the following points would arise for consideration in this appeal;
a) Whether in the facts and circumstances of the case as contended by the appellant that the claimant-appellant would not be liable to pay compensation as claim petition was dismissed against respondent No.2 – owner?
b) Whether in the facts and circumstances of the case for reduction of compensation?
Answer to the above points would be in the negative and in the affirmative for the following reasons.
11. The accident occurred on 26.04.2011 involving Motorbike bearing Reg.No.CKS-6959, Jeep bearing Reg.No.KA-34-M-1009 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The Insurer is in appeal aggrieved by saddling of liability on the ground that the claim petition was dismissed against the owner, as such Insurer is not liable. Respondent No.2 is the owner of the Jeep bearing Reg.No.KA-34-M-1009 which is the offending vehicle. Admittedly, the appeal against respondent No.2 - owner of the Jeep was dismissed for not taking steps for service of notice before the Tribunal. But, respondent No.1 - driver of the Jeep represented before the Tribunal and contested the petition. The Tribunal on assessment of the evidence on record has held that the accident occurred solely due to the negligence of the driver of the Jeep. The contention raised by the appellant - Insurer is too technical and at this length of time, it may not be proper and appropriate to remand the matter on this ground. More importantly when it is held that accident occurred due to the negligence of the driver of the Jeep. Hence the said ground is rejected.
12. The claimant states that he was earning Rs.9,000/- per month by doing agricultural work but he has not placed any material to indicate his income or has not examined any person to say that he was earning that much amount by agricultural work. The income assessed by the Tribunal at Rs.9,000/- per month is on the higher side. This Court and Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2011 at Rs.6,500/- per month. In the present case also, as there is no material on record to indicate the exact income of the claimant, it would be appropriate to assess the notional income of the claimant at Rs.6,500/- per month instead of Rs.9,000/- per month assessed by the Tribunal. Taking note of the nature of the injuries, treatment taken by the claimant and on the basis of the evidence of the Doctor, the Tribunal has correctly assessed the whole body disability at 10% which needs no interference. The claimant was aged 28 years as on the date of accident and the Tribunal has rightly applied the multiplier of ‘17’ which also needs no interference. Thus,
13. Thus, the claimant would be entitled for total compensation of Rs.2,90,626/- as against Rs. 3,54,126/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till the date of realization. Thus, the compensation is reduced by Rs.63,500/-.
The judgment and award of the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
The amount in deposit be transmitted to the concerned Tribunal.
Sd/- JUDGE HA/-