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2019 DIGILAW 1421 (KAR)

Branch Manager, National Insurance Co Limited v. Kumari Parijatha D/O Jagadeesh Gouda

2019-06-25

P.G.M.PATIL

body2019
JUDGMENT : P.G.M. Patil, J. The insurer and the claimant being aggrieved by the common judgment and award dated 14.09.2009 passed in MVC No.159 and 160 of 2008 by the Member, MACT-II , Ballary have filed these appeals. 2. The case of the claimant before the tribunal is that on 24.07.2007 at about 11.30 a.m. near Elumakkala Tayi Temple, Hospet road, Bellary, when the petitioners i .e. mother and daughter while proceeding from Eloumakkala Tayi Temple, Bellary by walk on proper side of the road, one van bearing registration No.K.A.26/3135 driven by the 1st respondent came in a rash and negligent manner with high speed and dashed against the petitioners. As a result of accident the petitioners sustained grievous injuries and they were taken to VIMS hospital, Bellary for treatment. The claimants were also treated in Danamma Super Specialty hospital, Ballari. Due to the accidental injuries they have suffered permanent disability. Hence, the claimants sought for compensation against driver, owner and insurer of offending vehicle. 3. In pursuance to the notice, the respondents No.1,2 did not appear before the tribunal and they were placed ex-parte. Respondent No.3 appeared through his counsel and filed the written statement and has denied that the accident occurred due to the negligence of the driver i.e. respondent No.1. He has also denied nature of injuries, amount spent for treatment, avocation and income of the petitioners. He has admitted that the vehicle in question was insured with respondent No.3. He has further contended that the driver of the offending vehicle did not possess valid driving license at the time of the accident. Therefore, he is not liable to pay compensation. 4. On the basis of the pleadings of the parties, the tribunal framed issues. In support of their claim petition, the claimants in both the cases were examined as PWs.1,2 and another witness as PW.3 and got marked 123 documents as Exs.P.1 to P.123. Per contra, the respondent insurance company got examined its witness as RW.1, however he has not produced any document. The tribunal after hearing both the parties, passed the judgment, awarding compensation of Rs.20,000/- and Rs.65,000/- respectively in MVC.Nos.159/2008 and 160/2008 with interest at 6% p.a. from the date of petition till the date of payment or deposit in the Court. Respondent Nos.1 to 3 were held jointly and severally liable to pay compensation. The tribunal after hearing both the parties, passed the judgment, awarding compensation of Rs.20,000/- and Rs.65,000/- respectively in MVC.Nos.159/2008 and 160/2008 with interest at 6% p.a. from the date of petition till the date of payment or deposit in the Court. Respondent Nos.1 to 3 were held jointly and severally liable to pay compensation. However, the respondent No.3 being the insurer was directed to deposit the compensation amount within one month from the date of the order. 5. The insurer being aggrieved by the impugned judgment has filed MFA.Nos.22115/2010 and 22116/2010. The claimants being dissatisfied with the impugned judgment have filed MFA. Nos.20786/2010 and 20787/2010. 6. Heard the arguments of the learned counsels appearing for the parties. 7. The short question which arise for consideration in these appeals is as to whether the insurer has made out grounds to set aside the liability saddled against him and whether the claimants have made out grounds for enhancement of the compensation. 8. The contention of the insurer in these appeals to set aside the liability saddled against him is that driver of the offending vehicle did not possesses valid and effective driving license to drive the vehicle and therefore, there is breach of policy conditions as such, he is not liable to pay compensation. It is admitted that the driver of the offending vehicle possessed valid driving license to drive the LMV (NT) as on the date of the accident. The vehicle involved in the accident is also LMV van. In view of the judgment of the Hon'ble Supreme Court, in the case of Mukund Dewangan V. Oriental Insurance Company Limited, (2017) AIR SC 3668 the contention of the insurer cannot be accepted. Therefore, the appeal filed by the insurer is liable to be dismissed. Hence, it is held that the insurer has not made out any grounds for setting aside the liability saddled against him. 9. In MFA.No.20786/2010:- The claimant in this case contended that she has spent Rs.50,000/- towards medical expenses and other expenses. She has produced her wound certificate at Ex.P.62 issued by the VIMS Hospital, Ballari, which shows that she had sustained three injuries including circular abrasion over the left side of the frontal area. She has also produced Ex.P.63 to 100 towards medical expenses amounting to Rs.10,112/-. She has produced her wound certificate at Ex.P.62 issued by the VIMS Hospital, Ballari, which shows that she had sustained three injuries including circular abrasion over the left side of the frontal area. She has also produced Ex.P.63 to 100 towards medical expenses amounting to Rs.10,112/-. It is also made out that she was treated as in patient in Danamma Super Specialty Hospital, Ballari for seven days, as per the document produced in the case. However, the tribunal has awarded global compensation of Rs.20,000/-. The tribunal has not considered the medical bills and also that the petitioner had sustained injuries over frontal area. Considering the material on record, it is just and necessary to award global compensation of Rs.50,000/- with interest at 6% pa. from the date of petition till realization. 10. In MFA.No.20787/2010:- The petitioner has contended before the tribunal that she sustained fracture of eleven ribs as shown in Ex.P.53. PW. 3. Dr.V.P.Rao has issued disability certificate as per Ex.P.54. Considering the evidence of Pw.3, and the injury sustained by the petitioner, the permanent disability of the petitioner is considered at 10% of the whole body instead of 15% as considered by the tribunal for the purpose of awarding compensation. The petitioner has further contended that the tribunal has considered national income of the petitioner at Rs.3,000/- per month. A sum of Rs.15,000/- is awarded under the head pain and suffering, Rs.10,000/- towards loss of amenities, Rs.1,500/- towards attendant charges and Rs.1,500/- towards cost of extra nourishment and food, Rs.1,000/- towards the conveyance. On reassessment the following just compensation is awarded. 1 Towards loss of amenities 25,000/- 2 Towards Pain and suf fering 25,000/- 3 Towards Medical expenses 30,000/- 4 Towards Extra nourishment and food, attendant charges and conveyances 10,000/- 5 Loss of income during the period of treatment 8,000/- 6 Towards loss of future income due to disabi l ity (4,000x12x15x10%) 72,000/- Total 1,70,000/- Therefore, the claimant is entitled for total compensation of Rs.1,70,000/- as against the Rs.65,000/- awarded by the tribunal. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA.Nos.22115/2010 and 22116/2010 are hereby dismissed. MFA.Nos.20787/2010 and 20783/2010 are allowed in part. Claimant in MFA.Nos.20787/2010 is awarded compensation of Rs.50,000/- with interest at 6% from the date of petition till its realization. The point for consideration is answered accordingly. In the result, this Court proceed to pass the following: ORDER MFA.Nos.22115/2010 and 22116/2010 are hereby dismissed. MFA.Nos.20787/2010 and 20783/2010 are allowed in part. Claimant in MFA.Nos.20787/2010 is awarded compensation of Rs.50,000/- with interest at 6% from the date of petition till its realization. Claimant in MFA.Nos.20783/2010 is awarded compensation of Rs.1,70,000/- with interest at 6% from the date of petition till its realization. The amount of compensation deposited by the insurer shall be transmitted to the concern tribunal forthwith.