Karnataka High Court
N P Davis vs T V Davis on 24 July, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
MFA 6216/2010
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
Miscellaneous First Appeal No. 6216 of 2010 (MV)
BETWEEN
N. P. DAVIS
AGED ABOUT 41 YEARS,
S/O. LATE N. A. POULSE
R/O. SHALOM NILAYA
KESHAVAPURA EXTENSION,
3RD CROSS, BHADRAVATHI - 577 301.
... APPELLANT
(By Sri. H. PAVANA CHANDRA SHETTY, ADV.)
AND
1. T. V. DAVIS,
AGED ABOUT 48 YEARS,
S/O. VARGHESE,
R/O. HUTHA COLONY,
BHADRAVATHI.
2. THE NEW INDIA INSURANCE CO. LTD.,
PREMA COMPLEX, B.H. RAOD,
BHADRAVATHI REP: BY ITS
NEAREST DIVISIONAL OFFICE,
BY ITS DIVISIONAL MANAGER,
SRI. RAM ARCADE,
OPP: HEAD POST OFFICE
UDUPI.
... RESPONDENTS
MFA 6216/2010
2
(By Sri. S. V. HEGDE MULKHAND, ADV. FOR R.2,
R.1 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:05.06.2010 PASSED IN MVC
NO.1021/2005 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE, MEMBER, MACT, UDUPI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
This appeal coming on for Admission, this day, the
Court, delivered the following:
JUDGMENT
This appeal is by the claimant challenging the judgment and award made by the Tribunal on the ground of liability as well as quantum of compensation awarded by the Tribunal.
2. Heard. The appeal is admitted and with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.
3. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
MFA 6216/20103
4. Learned Counsel for the claimant submits that though the nature of policy covers the risk of the claimant, the Tribunal has committed an error in not fastening the liability on the insurer of offending vehicle. He further submits the compensation awarded by the Tribunal is also on the lower side. Therefore he prays for allowing the appeal.
5. Whereas learned Counsel for insurer of offending vehicle submits the claimant having travelled as an occupant in the offending vehicle, insured under Act only policy his risk is not covered. He also submits that in the connected appeal MFA No.6518/2010 filed by the claimant which is arising out of the same accident this Court has confirmed the finding of the Tribunal regarding fastening the liability against the owner of offending vehicle.
MFA 6216/20104
6. From the rival contentions advanced by the learned Counsel appearing for the parties the points that arise for consideration are:
1) Whether the Tribunal is justified in fastening liability on the owner of the offending vehicle instead of fastening it on the insurer?
2) Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?
7. As per the insurance policy marked as Annexure R 1, the offending vehicle was insured under Act only policy. If that is so, the said policy does not cover the risk of the claimant who travelled in the said vehicle as an occupant. The Tribunal considering the same is justified in directing the owner of the offending vehicle to pay compensation to the claimant. Accordingly the said finding of the Tribunal regarding liability is confirmed.
8. As per Ex.P.7 wound certificate claimant has sustained posterior dislocation of left hip joint and other MFA 6216/2010 5 simple injuries. He was taken in to Malle Gowda District Hospital, Chikmagalore and later shifted to KMC Hospital, Manipal for further treatment. He was treated there as inpatient from 7.5.2005 to 20.05.2005. PW 5 Dr. Monappa Nayak has stated claimant has sustained disability y to the extent of 18% to his left lower limb. But in the cross examination he has stated treatment is completed and claimant has no difficulty in working.
9. Considering nature of injuries sustained by the claimant and duration of treatment taken by the claimant as in patient, Rs.25,000/- awarded by the Tribunal towards pain and suffering, Rs.16,500/- awarded towards medical expenses as per medical bills and Rs.18,000/- awarded towards loss of income during laid up period is just and proper and there is no scope for enhancement under these heads..
10. The doctor has stated that the claimant has no difficulty in doing his work as a Commission Agent. MFA 6216/2010 6 Therefore awarding compensation towards loss of future income does not arise. However, considering nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, a sum of Rs.25,000/- is awarded towards loss of amenities and a sum of Rs.25,000/- is awarded towards permanent disability as against Rs.25,000/- awarded by the Tribunal under loss of amenities.
11. Thus the claimant is entitled for an additional compensation of Rs.25,000/- with interest at 6% p.a. from the date of claim petition till the date of realization
12. Accordingly the appeal is allowed in part and the judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for additional compensation of Rs.25,000/- with interest at 6% p.a. from the date of claim petition till the date of realization.
MFA 6216/20107
13. In view of confirming the finding of the Tribunal in fastening the liability on the owner of offending vehicle, the owner of offending vehicle is directed to deposit the additional compensation amount with interest, within two months from the date of receipt of a copy of this judgment, and the same is ordered to be released in favour of the claimant.
No order as to costs.
SD/-
JUDGE Vb/-
CT: bs*