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2000 DIGILAW 719 (KAR)

M. S. POORNIMA v. LAKSHMANA TIRAKAPPA HUNSHIKATTI

2000-11-03

R.GURURAJAN

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( 1 ) THIS appeal is filed by the Insurance Company and the owner challenging the judgment and award in MVC No. 4 of 1996 on the file of Additional Motor Accidents Claims Tribunal, Haver. ( 2 ) THE respondent filed a petition under Section 166 of the Motor Vehicles Act, 1988, claiming a compensation of Rs. 5,00,000/- towards the injury sustained by him in a road accident on 7-11-1994 at about 7. 00 a. m. near the Inspection Bungalow at Shiggaon. According to him, on the fateful day, he had gone in on his motor-cycle to a petrol bunk and thereafter to the garage of one Ramesh to check the air to his motor-cycle. He was proceeding to his business shop, at that time, the first respondent, being the driver of the luxury bus bearing No. KA-01/5145 came in a rash and negligent manner and caused the accident. On account of the same he was thrown out from the spot. He sustained grievous injuries. He was treated in the Government Hospital and later he was shifted to KMC, Hubl. He has spent Rs. 25,000/- towards his treatment. He was earning a sum of Rs. 100/- per day. On account of this accident, he has become totally unemployed as on today. In these circumstances, he claims total compensation of Rs. 5 lakhs from the respondent. Though notice has been ordered, respondent 1 and respondent 2 remained absent. Only respondent 3-the Insurance Company contested the matter. ( 3 ) THE Tribunal on the basis of the pleadings, framed 6 issues. The first issue was answered in favour of the respondent herein. The second issue was partly in favour of the petitioner. Issue nos. 3 and 4 are in favour of the petitioner. The Tribunal on evidence has now granted a total sum of Rs. 2,63,500/- payable by the appellant-Insurance Company with interest at 6% p. a. , from the date of petition. This award is challenged before me by the Insurance Company as well as the owner of the vehicle. ( 4 ) NOTICE was ordered pursuant to which the contesting respondent has entered appearance. This matter was listed in the orders list and with the consent of both the Counsels, the matter is taken up for final hearing. This award is challenged before me by the Insurance Company as well as the owner of the vehicle. ( 4 ) NOTICE was ordered pursuant to which the contesting respondent has entered appearance. This matter was listed in the orders list and with the consent of both the Counsels, the matter is taken up for final hearing. ( 5 ) I have heard Sri S. P. Shankar, learned Counsel appearing for the appellants and Sri hunshikatti, learned Counsel appearing for the contesting respondent. After hearing the learned counsels on both the sides, I pass the following order: ( 6 ) INSOFAR as the accident is concerned, no argument is advanced before me. Hence, the findings on this issue is confirmed. ( 7 ) THE Counsel for the appellants essentially questioned the compensation awarded by the tribunal. He assailed the said compensation by contending that there is no evidence warranting a huge sum of Rs. 2,63,500/- on the facts of this case. He refers to the evidence of P. W. 2 and P. W. 8 in support of his contention. In addition he also invites my attention to the amended provision of Section 163-A to contend that what can be awarded is only 20% and not 30%, since the said amendment was brought into force only after the accident. According to him, such amendment cannot be treated as prospective in nature. ( 8 ) PER contra, the Counsel for the respondent supported the order by contending that the claimant has large family to support with and that the Tribunal has granted the just compensation and the same does not call for any interference in this proceeding. ( 9 ) AS mentioned earlier the findings of Issue No. 1 is not disturbed. Insofar as Issue Nos. 2 to 5 are concerned, the Tribunal in paras 11, 12 and 13 has noticed the various claims. The Tribunal relied on the evidence of P. W. 2 to come to a conclusion that the respondent has sustained 50% disability. In that view of the matter he has concluded the Compensation at Rs. 1,125/- and on that contention a total sum of Rs. 2,29,500/- is granted by the Tribunal. I have gone through the evidence of P. W. 2. He states in the evidence that he has seen Ex. In that view of the matter he has concluded the Compensation at Rs. 1,125/- and on that contention a total sum of Rs. 2,29,500/- is granted by the Tribunal. I have gone through the evidence of P. W. 2. He states in the evidence that he has seen Ex. P-8 and the said certificate was issued by one Sri Doddamani and not by himself and that the respondent has suffered 50% disability. In cross-examination, curiously he states that the disability percentage may change from Doctor to Doctor opinion. He further states that he has given his opinion based on the certificate issued by Dr. Doddaman. Admittedly, Dr. Doddamani has not been examined. The doctor is not sure of the disability as could be seen from the cross-examination of the said doctor. In these circumstances, in my view, the Tribunal cannot fix the disability at 50% as has been done in the case. Hence, the fixation of disability of 50% requires my interference. The law of the land provides for compensation in terms of the Schedule to the Workmen's Compensation act in terms of Section 163-A of the Motor Vehicles Act. Only after amendment the respondent is entitled for compensation in terms of the amended Section 163-A of Second Schedule. Admittedly, in the case on hand, the accident had occurred on 7-11-1994, prior to the amendment of Section 163-A. Therefore, prima facie it cannot be said that Section 163-A is applicable to the facts of this case. In these circumstances, on the basis of the evidence of P. W. 2 and the date of the accident, the grant of compensation at 50% disability is unsustainable. Therefore, in my view, ends of justice is met if the disability is taken at 25% on the facts of this case particularly in the absence of any acceptable evidence forthcoming in the case on hand. Therefore, the disability is fixed at 25%. If 25% is fixed as disability, the compensation gets reduced to Rs. 1,14,750/ -. Therefore, the grant of compensation at Rs. 2,63,500/- is reduced to rs. 1,14,750/ -. All other claims awarded by the Tribunal is not disturbed. Therefore, the disability is fixed at 25%. If 25% is fixed as disability, the compensation gets reduced to Rs. 1,14,750/ -. Therefore, the grant of compensation at Rs. 2,63,500/- is reduced to rs. 1,14,750/ -. All other claims awarded by the Tribunal is not disturbed. ( 10 ) THE Counsel for the respondent complained that the interest ought to have been granted at 9% p. a. , instead of 6% p. a. , from the date of petition till the date of realisation, However, Sri S. P. Shankar contends that this question cannot be gone into in the absence of any challenge by the respondent challenging 6%. Taking into consideration the overall circumstances of this case, particularly the suffering undergone by the claimant, it is proper to grant interest at the rate of 9% from the date of petition till the date of realisation. ( 11 ) IN the result, this appeal is allowed, The order of the judgment and award of the Tribunal is modified. The appellant-Insurance Company is directed to pay a total compensation of Rs. 1,48,750/- rounded off to Rs. 1,50,000/- together with interest at the rate of 9% p. a. , from the date of petition till the date of realisation. The Insurance Company is directed to settle the payment within two months from today. The amount already deposited before this Court is ordered to be withdrawn by the respondent. The said amount of deposit is to be given deduction, while paying the balance amount to the respondent. ( 12 ) OFFICE is directed to send the Lower Court Records forthwith.