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Karnataka High Court · body

2013 DIGILAW 1320 (KAR)

M. R. Susheela v. Sunil N. Konareddy

2013-11-19

B.S.INDRAKALA

body2013
Judgment : 1. The above appeal is filed seeking enhancement of compensation amount awarded in the order dated 23.6.2009 passed in MVC No. 820/2007 on the file of the Civil Judge (Sr. Dn.) and Additional MACT, Chitradurga. 2. The brief facts of the case are that the appellant filed the said case seeking compensation by way of damages on account of the damage caused to the motor bike of which she was the R.C. owner contending that in the accident which occurred on 27.10.2006 owing to the rash driving of the lorry bearing registration No. KA 25 B- 199, her vehicle was damaged and sought awarding of damages to an extent of Rs.31,000/-; further contending that she spent Rs.27,000/- towards repair; Rs. 1000/- towards transportation of vehicle from Cbitradurga to Davangere and a sum of Rs.3,000/- towards using of an autorickshaw during the period when the said vehicle was under repair. 3. On considering the evidence led in by the claimant, the Tribunal deemed it fit to award a sum of Rs.23,186/- with interest at the rate of 6% p.a. from the date of petition till realisation. 4. Aggrieved by the said judgment and award, the claimant/ appellant herein is in appeal interalia contending amongvSt other grounds that the amount so awarded is inadequate. 5. Learned counsel appearing for the 2nd respondent- insurer submitted that the rider of the vehicle is none other than the son of the claimant herein, who filed MVC No.508/2007 on the file of II Additional Civil Judge (Sr.Dn) and Additional MACT, Chitradurga, seeking compensation on account of the injuries sustained by him m the very same accident and the said claim petition was partly allowed, against which, the claimant therein preferred MFA No.5532/2009. Further, it is submitted that while disposing of the said MVC No.508/2007 vide its order dated 18.4.2009, it is held that the rider of the motor bike contributed to the cause of the accident to an extent of 10% and as such, out of the compensation of Rs. 1,00,000/-, Rs. 10,000/- was deducted and only Rs 90,000/- was awarded to the claimant. Likewise while disposing of the said appeal, the said observation of deducting the amount to an extent of 10% was upheld. 1,00,000/-, Rs. 10,000/- was deducted and only Rs 90,000/- was awarded to the claimant. Likewise while disposing of the said appeal, the said observation of deducting the amount to an extent of 10% was upheld. Further, it is contended that, if such, 10% of contributory negligence is considered in this case seeking damages, the amount awarded is just and proper and the same does not call for any interference. 6. Further the learned Counsel for the respondent submits that as against the claim of Rs.31,000/- made by the claimant in MVC proceeding, a sum of Rs.23,186/- is awarded and thereby Rs.7,814/- was less than what was sought in the claim petition; under Section 173(2) of the Motor Vehicles Act which reads that no appeal shall lie against any award of the Claims Tribunal if the amount in the appeal is less than Rs. 10,000/'-, the appeal is not maintainable. 7. Pei contra, learned Counsel for the appellant contended that such a finding of giving deduction and holding the liability to an extent of 10% to the rider, does not affect the right of the owner of the vehicle, who has not contributed to the accident and such deduction cannot be given while awarding the damages to the damage caused to the vehicle involved in the accident. 8. With regard to the maintainability of the appeal, he submitted that the amount claimed in the memorandum of appeal is more than Rs. 10,000/- in as much as against the sum awarded at Rs.23,186/-, the same is sought to be enhanced to Rs.43,436/- i.e., to an extent of Rs.20,250/- and as such, the appeal is maintainable. 9. Thus the points that arise for consideration are: i) Whether the above appeal is maintainable? ii) If yes, whether the impugned judgment and award are liable to be modified? iii) What order? 9. On perusal of the memorandum of appeal, it is seen while valuing the appeal, the appellant herself has specifically stated after deducting a sum of Rs.23,186/-, the balance amount is valued at Rs.7,186/- (it ought to have been Rs.7,814/-) and further the appellant deemed it fit to include (i) a sum of Rs.3,650/- incurred towards paper publication of the notice (ii) a sum of Rs. 1,600/- paid towards surveyor's fees and in all has shown Rs. 12,436/- as difference of amount claimed in the appeal. 10. 1,600/- paid towards surveyor's fees and in all has shown Rs. 12,436/- as difference of amount claimed in the appeal. 10. Thus the amount sought by the appellant towards paper publication and surveyor's fee cannot be included as claimed in the appeal, whereas the same may be included in the memorandum of costs before passing of the decree as per law. Thus it cannot be said that the amount in dispute in appeal is Rs. 12,436/- and on the other hand, it is only a sum of Rs.7,814/-. Thus the above appeal is not maintainable under Section 173(2) of the Act. Accordingly, point No.1 is answered. 11. In view of answering point No.1, consideration of point No.2 does not arise. 12. Thus the above appeal is dismissed as not maintainable.