Karnataka High Court
Sangayya S/O Sanganabasayya Sambalad vs Shri Premachand H Nadavinmani on 9 January, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF JANUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL No.11255/2007 (MV)
BETWEEN:
SANGAYYA
S/O SANGANABASAYYA SAMBALAD
AGE:25 YEARS, OCC:NIL,
R/O DEVIKOPPA,
KALGHATGI TALUK,
DHARWAD DISTRICT. ... APPELLANT
(BY SRI: SHRIKANTH T PATIL, ADV.)
AND:
1. SHRI PREMACHAND H NADAVINMANI
MAJOR,
OCC: BUSINESS,
R/O ANCHATGERI,
HUBLI-10
2. THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.,
KESHVAPUR,
HUBLI-18. .. RESPONDENTS
(BY SRI PREMACHAND H. NADAVINMANI FOR R-1,
SRI. R.R. MANE FOR R-2 )
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*****
THE MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED:
24.4.2007 PASSED IN MVC NO. 140/2004 ON THE
FILE OF THE III ADDL. CIVIL JUDGE (SR.DN) AND
CJM AND ADDL. MACT, DHARWAD, PARTLY
ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER
ORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Claimant is in appeal seeking for enhancement of compensation awarded by MACT, Dharwad by judgment and award in MVC No.140/2004 dated 24.07.2007 and also praying for modifying award in question by fastening the liability on the insurer or in the alternate, he prays for directing the second respondent-insurer to satisfy award and recover the same from owner of the offending vehicle.
2. Heard learned Advocates appearing for parties. Perused the judgment and award in question. :3:
3. On account of injuries sustained by claimant in a road traffic accident that occurred 10.10.1997 Tribunal after considering pleadings of the parties as well as evidence tendered by them in support of respective contentions, allowed the claim petition in part and has awarded a total compensation of Rs. 1,25,000/- and directed the owner of the offending vehicle viz., first respondent to pay the compensation.
4. Disability certificate - Ex.P-6 would indicate that claimant had sustained fracture of left femur and there was dislocation of ankle joint. Claimant had also sustained injury on the face and nose resulting in disfigurement of face to a certain extent. Doctor who has issued disability certificate has been examined as P.W.3 and he has opined that disability sustained by claimant is to an extent of 20%. Scanning report Ex.P-7 would indicate that there was no bone injury sustained by the claimant. In the light of these contradictions :4: available on record, Tribunal has proceeded to award compensation as noticed herein above. Undisputedly, Tribunal has not awarded any compensation towards 'loss of amenities' . As on the date of accident, claimant was aged 25 years and there is disfigurement of the face. Disability as opined by P.W.3 is to an extent of 20% . Hence, taking these two aspects into consideration, I am of the view that sum of Rs.40,000/- if awarded towards 'loss of amenities', it would meet ends of justice. Accordingly, it is hereby awarded.
5. Insofar as compensation awarded under other heads by the Tribunal is just and reasonable and it does not call for any interference.
6. Vehicle in question was carrying number of passengers as per charge sheet Ex.P-4. All the inmates of vehicle who had sustained injuries have filed claim petitions and insurer has deposited compensation in respect of 12 claim petitions. Vehicle in question is a commercial vehicle carrying 'B' policy. Evidence of :5: R.W.1 would indicate that out of 12 cases, 10 cases were decided in Lok Adalath and in remaining two cases award has been satisfied. In that view of matter, Tribunal has rightly held that Insurance Company would not be liable to indemnify the claim since contract of policy issued to offending vehicle would not cover the risk of the insurer beyond 12 passengers. Hence, contention of learned Advocate appearing for petitioner that liability is to be fastened on the Insurance policy cannot be accepted and it is liable to be rejected. Hence, said contention is hereby rejected.
7. For the reasons aforestated, following order is passed:
(1) Appeal is hereby allowed (2) Judgment and award passed by MACT, Dharwad in MVC No.140/2004 dated 24.04.2007 is hereby modified and additional compensation of :6: Rs.40,000/- is hereby awarded which shall carry interest at the rate of 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
(3) Insofar as award of Tribunal absolving the insurer to indemnify the claimant is concerned, it is hereby affirmed.
(4) No order as to costs.
SD/-
JUDGE *sp