Karnataka High Court
Gurudas Babali Gavas vs Sanjay B Gavas on 26 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 26th day of November 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.152/2008 (MV)
C/w M.F.A. No.149/2008 (MV)
In M.F.A. No.152/2008
Between:
Prakash Sakharam Pednekar,
S/o. Sakharam Pednekar,
Aged 33 years, R/o. Pikoli,
Dodamarga Taluk,
Sindhudurg District. ...Appellant
(By Sri. Y.Lakshmi Kanth Reddy, Advocate)
And:
1. Sanjay B.Gavas, Age Major,
Owner of Tempo Trax bearing
Regn. No.GA-01/N-1760,
R/o. H.No.3/A,
Near St.Francis Xavier, Old
Goa, ILHAS, Goa District,
Goa North Goa-403105.
2. The National Insurance
Co. Ltd., Ramdev Galli,
Belgaum. ...Respondents
(By Sri. Suresh S.Gundi, Advocate for R2)
(R1 - served)
1
:2:
This appeal is filed under Section 173(1) of the
Motor Vehicles Act against the judgment and award
dated 02.07.2007 passed in MVC No.2473/2003 on the
file of the Member, Addl. MACT & Presiding Officer, Fast
Track Court-IV, Belgaum partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
----------
In M.F.A. No.149/2008
Between:
Gurudas Babali Gavas,
S/o. Babali Gavas,
Aged 42 years, R/o. Pikoli,
Dodamarga Taluk,
Sindhudurg District. ...Appellant
(By Sri. Y.Lakshmi Kanth Reddy, Advocate)
And:
1. Sanjay B.Gavas, Age Major,
Owner of Tempo Trax bearing
Regn. No.GA-01/N-1760,
R/o. H.No.3/A,
Near St.Francis Xavier, Old
Goa, ILHAS, Goa District,
Goa North Goa-403105.
2. The National Insurance
Co. Ltd., Ramdev Galli,
Belgaum. ...Respondents
(By Sri. Y.Lakshmikanth Reddy, Advocate for R2)
(R1 - served)
This appeal is filed under Section 173(1) of the
Motor Vehicles Act against the judgment and award
2
:3:
dated 02.07.2007 passed in MVC No.2472/2003 on the
file of the Member, Addl. MACT & Presiding Officer, Fast
Track Court-IV, Belgaum partly allowing the claim
petition for compensation and seeking enhancement of
compensation.
These appeals coming on for admission this day,
the Court delivered the following:
JUDGMENT
These two appeals by the claimants are directed against the judgment and award passed by the Additional MACT and Fast Track Court-IV, Belgaum, dated 02.07.2007 in M.V.C. Nos.2472/2003 and 2473/2003 whereunder the claim petitions have been allowed in part and a compensation of Rs.62,420/- and Rs.19,400/- with interest at 6% per annum has been awarded by fastening the liability on the owner of the vehicle i.e., the 1st respondent and absolving the insurance company of its liability.
2. Heard Shri. Ravi.V.Hosamani, learned advocate appearing for the appellants and Shri Suresh.S.Gundi 3 :4: as also Shri M.K.Soudagar, learned advocates appearing on behalf of insurance companies in these two appeals and perused the records secured from the Tribunal.
3. Since a common judgment has been passed by the Tribunal in respect of two claim petitions filed by the appellants herein which arose on account of a road traffic accident that took place on 22.08.2003 at about 10.00 p.m., while the petitioners were travelling in a Tempo Trax bearing registration No.GA-01/N-1716 from Belgaum to their native place at Pikoli, these two appeals are heard together and common judgment is passed.
4. As already noticed hereinabove, claimants were travelling in a Tempo Trax bearing No.GA-01/N-1716 from Belgaum and proceeding to their native place Pikoli and at about 10.00 p.m. near Bachi on Vengurla road, a lorry bearing registration No.KA-23/A-7575 came from opposite direction, according to the 4 :5: claimants, in a rash and negligent manner and dashed against Tempo Trax resulting in injuries being sustained by the inmates of the vehicle and were treated at District Hospital, Belgaum and claimed that they had taken treatment at their native place on account of the injuries suffered. In respect of the injuries sustained by them, claim petitions were filed claiming compensation of Rs.3,00,000/- each. First respondent partly admitted the contentions raised in claim petition and partly denied contents of the claim petitions. It was contended that vehicle was insured with the 2nd respondent and it covers the risk of the claimants and no liability can be saddled on the 1st respondent-owner of the vehicle. Insurance company filed its statement of objections and it was contended that the driver of the tempo trax was not having a valid driving license and, during the course of the arguments, it was contended that the policy issued to the vehicle was an 'Act Policy' and, as such, the insurance company is not liable to indemnify the 5 :6: claim of the insured even if any compensation is awarded to claimants. On the basis of the pleadings of the parties, Tribunal framed issues and in support of their contentions, claimants got themselves examined as P.Ws.1 and 2 respectively and also examined Doctor as P.W.3 and got marked Exs.P.1 to P.15. Respondent examined one of its officials as R.W.1 and the insurance policy issued to offending vehicle was marked as Ex.R.1. On the basis of the pleadings of the parties and evidence tendered, Tribunal awarded compensation of Rs.62,420/- and Rs.19,400/- as already observed hereinabove.
5. Learned counsel for the claimants would contend that Tribunal erred in awarding a lesser compensation and contends that Tribunal ought to have taken into consideration the malunited fracture of the claimant in M.V.C. No.2472/2003, and it ought to have awarded higher compensation and by non-consideration 6 :7: of the evidence of the doctor who had assessed the disability at 30% Tribunal erred in reducing the disability to 10% and hence he seeks for enhancement of compensation. He would also contend that income of the claimant in M.V.C. No.2472/2003 should have taken at Rs.6,000/- per month instead of Rs.2,400/- and as such it ought to have awarded higher compensation. On these grounds he seeks for enhancement of compensation and also prays for marginal enhancement of the compensation awarded by the Tribunal under other heads.
6. Learned counsel would also elaborate his submission in respect of claim petition in M.V.C. No.2473/2003 to contend that compensation awarded is abysmally on the lower side and Tribunal committed a serious error in not taking into consideration the medical bills produced which was to the extent of Rs.17,014-20 and as such it ought to have awarded 7 :8: higher compensation. Accordingly, he prays for allowing both the appeals by enhancing the compensation.
7. Per contra, learned advocates appearing for respondents would contend that policy issued to the offending vehicle is a 'Act Policy' and as such insurer need not indemnify the claim.
8. Having heard the learned advocates appearing for the appellants and the advocates appearing for the respondents, and on perusal of the judgment of the Tribunal and records secured from the Tribunal following would emerge:
(a) Re. M.F.A. No.152/2008
This appeal is by the claimant in M.V.C. No.2473/2003. As per the wound certificate produced at Ex.P.14 claimant had sustained two simple injuries and was an inpatient for eight days for the purpose of investigations. After conducting of investigation like x- 8 :9: ray of the skull, C Spine scapula and other parts of the body, it was found that there was no evidence of fracture. Thus, taking into consideration the injuries being non-grievous, Rs.2,000/- has been awarded. Though claimant produced medical bills for Rs.17,014.20/-, Tribunal awarded a sum of Rs.15,000/- which was the maximum admissible amount since the petition filed was under Section 163A of the Motor Vehicles Act. Towards loss of income for laid up period, a sum of Rs.2,400/- has been awarded. The said compensation awarded neither can be said to be on the lower side which calls for interference by this Court. Admittedly, claim petition was under Section 163A and, as such, Tribunal has rightly allowed the admissible medical bills namely the permissible upper limit of Rs.15,000/-. The said compensation awarded cannot be held to be on the lower side or contrary to facts and law. Hence, there is no merit in the said appeal and the same stands rejected.
9 : 10 : (b) Re. M.F.A. No.149/2008
Claimant got himself examined as P.W.1. Medical bills were produced and collectively marked as Ex.P.11 and the follow-up card was marked as Ex.P.8. Disability certificate was marked at Ex.P.9 and the wound certificate at Ex.P.7. Said wound certificate reflects that claimant had sustained injuries viz., (i) comminuted fracture of left ulna and the other injury is (ii) oblique fracture of left radius and it is opined that injury no.2 as grievous and injury No.1 related to CLW on the right upper lid which is shown as simple injury. Taking into consideration the claim petition is filed under Section 163A of the Motor Vehicles Act, as per Schedule II of the Act, the compensation has been awarded under each head viz., for two grievous injuries a sum of Rs.10,000/- i.e., at the rate of Rs.5,000/- is awarded for each injury and for simple injury or non-grievous injury at the rate of Rs.1,000/- it has been awarded. The medical bills 10 : 11 : produced and collectively marked as Ex.P.11 was for Rs.1,489-30 and, as such, the Tribunal has awarded a sum of Rs.1,500/- towards medical bills. Taking the monthly salary at Rs.2,400/-, the loss of income for 4 months has been awarded at Rs.9,600/-. The accident is of the year 2003 and claimants contended that they were conducting business and it has been closed. Said plea remained as a plea without proof. Hence, the Tribunal has taken the notional income and awarded compensation towards loss of income during laidup period.
Though it is contended that disability ought to have been taken at 35% as assessed by the doctor- P.W.3, Tribunal has rightly not taken the said plea obviously for the simple reason that disability was to the left upper limb and not to the whole body and thus, the whole body disability taken at 10% by the Tribunal is based on the evidence of the doctor, who had issued the 11 : 12 : disability certificate-Ex.P.9 and he was not the doctor who treated the claimant. Though it cannot be a ground to reject the assessment of disability in toto, the fact that the disability is assessed by the said doctor himself at 35% to the left upper limb, Tribunal has rightly taken into consideration 1/3rd of it as the whole body disability viz., 10% while assessing loss of future income. The said finding is based on sound appreciation of evidence which does not call for interference at the hands of this Court. Thus, there is no merit in this appeal.
9. In view of the aforesaid discussion, following order is passed:
ORDER
(i) M.F.A.No.149/2008 and M.F.A. No.152/2008 are hereby dismissed.
12 : 13 :
(ii) The judgment and award passed
by the Tribunal in M.V.C.
Nos.2472 and 2473/2003 by the
Additional MACT and Fast Track
Court-IV, Belgaum, dated
02.07.2007 are hereby confirmed.
(iii) No order as to costs.
Sd/-
JUDGE
Kms
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