Karnataka High Court
The Branch Manager, vs Babu @ Baburao S/O. Irappa Talawar on 21 February, 2018
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
M.F.A.NO.21253/2012
CW
M.F.A.NO.21254/2012
M.F.A.NO.21242/2012
M.F.A. CROB NO. 100065/2014
M.F.A. CROB NO. 100066/2014
M.F.A.NO.21253/2012
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, PRABHU BUILDING,
1732, RAM DEV GALLI, BELGAUM.
REPRESENTED BY MRS. SAVITA KAMAT,
AGE: 54 YEARS,
DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, HUBLI.
... APPELLANT
(BY SRI. S. V. YAJI, ADVOCATE)
AND
1. SHIVANAND S/O. SIDDAPPA HADIMANI,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O. GARJUR, TQ: BAILHONGAL,
DIST: BELGAUM.
2. MANJUNATH S/O. RUDRAPPA MAVINAKATTI,
AGE: MAJOR, OCC: BUSINESS/OWNER OF
TEMPO TRAX NO.KA-24/M-1905,
R/O. K.R.C. NAGAR, III CROSS,
BAILHONGAL.
2
3. M. NAGASURESH S/O. M. SHANKARAPPA,
AGE: MAJOR,
R/O. NO. 293, OPO ROAD,
CHIKKABALLAPUR.
4. ROYAL SUNDARAM ALLINACE INSURANCE CO. LTD.,
SORRANTO BUILDING, NO. 6, 1ST FLOOR,
LATTICE BRIDGE ROAD, YDYAR,
CHENNAI - 600 020.
... RESPONDENTS
(BY SRI. UMESH AINAPUR, ADVOCATE FOR R1;
SRI. GEETA K. M @ PAWAR ADV., FOR R2;
SRI. G. N. RAICHUR, ADV., R4;
R3 - NOTICE DISPENSED WITH)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
22-11-2011 PASSED IN M.V.C.NO.588/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
M.A.C.T., BAILHONGAL, AWARDING THE COMPENSATION OF
RS.19,900/- WITH CURRENT AND FUTURE INTEREST AT THE
RATE OF 6% P.A. TO THE PETITIONER.
M.F.A.NO.21254/2012
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, PRABHU BUILDING,
1732, RAM DEV GALLI, BELGAUM.
REPRESENTED BY MRS. SAVITA KAMAT,
AGE: 54 YEARS,
DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, HUBLI.
... APPELLANT
(BY SRI. S. V. YAJI, ADVOCATE)
AND
1. BABU @ BABURAO S/O. IRAPA TALAWAR,
AGE: 24 YEARS, OCC: AGRICULTURE/
AGENT OF SAMRUDH JEEVAN POLICY,
3
R/O. GARJUR, TQ: BAILHONGAL,
DIST: BELGAUM.
2. MANJUNATH S/O. RUDRAPPA MAVINAKATTI,
AGE: MAJOR, OCC: BUSINESS/
OWNER OF TEMPO TRAX NO. KA-24/M-1905,
R/O. K.R.C. NAGAR, III CROSS,
BAILHONGAL.
3. M. NAGASURESH S/O. M. SHANKARAPPA,
AGE: MAJOR,
R/O. NO. 293, OPO ROAD,
CHIKKABALLAPUR.
4. ROYAL SUNDARAM ALLINACE INSURANCE CO. LTD.,
SORRANTO BUILDING, NO. 6, 1ST FLOOR,
LATTICE BRIDGE ROAD, YDYAR, CHENNAI.
... RESPONDENTS
(BY SRI. UMESH AINAPUR, ADVOCATE FOR R1;
SRI. GEETA K. M @ PAWAR ADV., FOR R2;
SRI. G. N. RAICHUR, ADV., R4;
R3 - NOTICE DISPENSED WITH)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
22-11-2011 PASSED IN M.V.C.NO.589/2010 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
M.A.C.T., BAILHONGAL, AWARDING THE COMPENSATION OF
RS. 1,88,900/- WITH CURRENT AND FUTURE INTEREST AT THE
RATE OF 6% P.A. TO THE PETITIONER.
M.F.A.NO. 21242/2012
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, PRABHU BUILDING,
1732, RAM DEV GALLI, BELGAUM.
REPRESENTED BY MRS. SAVITA KAMAT,
AGE: 54 YEARS,
DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
4
SUJATA COMPLEX, HUBLI.
... APPELLANT
(BY SRI.S. V. YAJI, ADVOCATE)
AND
1. BASAPPA S/O. CHENNAPPA KOTAMBARI,
AGE: 54 YEARS,
R/O. HOSAMANI CHAWL,
TQ: BAILHONGAL, DIST: BELGAUM.
2. KASTURI W/O. BASAPPA KOTAMBAI,
AGE: 42 YEARS, OCC: HOUSEWIFE,
R/O. HOSAMANI CHAWL,
TQ: BAILHONGAL, DIST: BELGAUM.
3. MALLIKARJUNA S/O. BASAPPA KOTAMBARI,
AGE: 20 YEARS,
R/O. HOSAMANI CHAWL,
TQ: BAILHONGAL, DIST: BELGAUM.
4. MANJUNATH S/O. RUDRAPPA MAVINAKATTI,
AGE: MAJOR, OCC: BUSINESS/OWNER OF
TEMPO TRAX NO.KA-24/M-1905,
R/O. K.R.C. NAGAR, III CROSS,
BAILHONGAL.
5. M. NAGASURESH S/O. M. SHANKARAPPA
AGE: MAJOR,
R/O. NO. 293, OPO ROAD,
CHIKKABALLAPUR.
6. THE ROYAL SUNDARAM
ALLINACE INSURANCE CO. LTD.,
SORRANTO BUILDING, NO. 6, 1ST FLOOR,
LATTICE BRIDGE ROAD, YDYAR, CHENNAI.
... RESPONDENTS
(BY SRI.M.Y. KATAGI, ADVOCATE FOR R6;
R1 TO R3 - NOTICE SERVED;
R4 & R5 - NOTICE DISPENSED WITH)
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF THE
M.V. ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
22-11-2011 PASSED IN M.V.C.NO.2693/2009 ON THE FILE OF
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THE SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL
M.A.C.T., BAILHONGAL, AWARDING THE COMPENSATION OF
RS. 4,86,000/- WITH CURRENT AND FUTURE INTEREST AT THE
RATE OF 6% P.A. TO THE PETITIONERS.
M.F.A.CROB. NO. 100065/2014
BETWEEN:
BABU @ BABURAO S/O. IRAPPA TALWAR,
AGE: 26 YEARS, OCC: AGRICULTURIST/
AGENT OF SAMRUDH JEEVAN POLICY,
R/O. GARJUR, TQ: BAILHONGAL,
DIST: BELGAUM.
... CROSS-OBJECTOR
(BY SRI. UMESH C. AINAPUR, ADVOCATE)
AND
1. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, PRABHU BUILDING, 1732,
RAM DEV GALLI, BELGAUM
REP. BY MRS. SAVITA KAMAT,
AGE: 58 YEARS,
DEPUTY MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, HUBLI
2. MANJUNATH S/O. RUDRAPPA MAVINAKATTI,
AGE: MAJOR, OCC: BUSINESS/
OWNER OF TEMPO TRAX NO. KA 24/M 1905,
R/O. K R C NAGAR, III CROSS,
BAILHONGAL.
3. M. NAGASURESH S/O. M. SHANKRAPPA,
AGE: MAJOR,
R/O. NO. 293, OPO ROAD,
CHIKKABALLAPUR.
4. THE ROYAL SUNDRAM
ALLIANCE INSURANCE CO. LTD,
SORRANTO BUILDING, NO. 6,
1ST FLOOR, LATTICE BRIDGE ROAD,
YDYAR, CHANAI.
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... RESPONDENTS
(BY SRI. S. V. YAJI, ADVOCATE FOR R1;
SMT. GEETA K.M. @ PAWAR, ADVOCATE FOR R2;
SRI. G. N. RAICHUR, ADVOCATE FOR R4;
R3 - NOTICE DISPENSED WITH)
THIS MFA CROB. IS FILED U/O. 41 RULE 22 OF CPC.,
AGAINST JUDGMENT AND AWARD DATED 22.11.2011, PASSED
IN MVC.NO.589/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE & ADDITIONAL M.A.C.T., BAILHONGAL, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.CROB.100066/2014
BETWEEN:
SHIVANAND S/O. SIDDAPPA HADIMANI,
AGE ABOUT 25 YEARS,
OCC: AGRICULTURIST/AGENT OF
SAMRUDH JEEVAN POLICY,
R/O: GARJUR, TQ: BAILHONGAL,
DIST: BELGAUM.
... CROSS-OBJECTOR
(BY SRI.UMESH C. AINAPUR, ADVOCATE)
AND
1. THE BRANCH MANAGER
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, PRABHU BUILDING,
1732, RAMDEV GALLI, BELGAUM,
REP. BY MRS. SAVITHA KAMAT,
AGE: 58 YEARS,
DEPUTY MANAGER,
NATIONAL INSURANCE CO.LTD.,
SUJATA COMPLEX, HUBLI.
2. MANJUNATH S/O RUDRAPPA MAVINAKATTI,
AGE: MAJOR, OCC: BUSINESS/
OWNER OF TEMPO TRAX NO. KA-24/M-1905,
R/O: K.R.C. NAGAR III CROSS,
BAILHONGAL.
3. M NAGASURESH S/O M SHANKRAPPA,
AGE: MAJOR,
7
R/O: NO.293 OPO ROAD, CHIKKABALLAPUR.
4. THE ROYAL SUNDARAM ALLIANCE
INSURANCE CO. LTD.,
SORANTO BUILDING NO.6,
1ST FLOOR, LATTICE BRIDGE ROAD,
YDYAR, CHANNAI-600020.
... RESPONDENTS
(BY SRI. S. V. YAJI, ADVOCATE FOR R1;
SMT. GEETA K.M. @ PAWAR, ADVOCATE FOR R2;
SRI. G. N. RAICHUR, ADVOCATE FOR R4;
R3 - NOTICE DISPENSED WITH)
THIS MFA CROB. IS FILED U/O. 41 RULE 22 OF CPC.,
AGAINST JUDGMENT AND AWARD DATED 22.11.2011, PASSED
IN MVC.NO. 588/2010 ON THE FILE OF THE SENIOR CIVIL
JUDGE & ADDITIONAL M.A.C.T., BAILHONGAL, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS AND CROSS-OBJECTIONS COMING ON
FOR ORDERS THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.21253/2012, MFA No.21254/2012 and MFA No.21242/2012 have been preferred by the appellant/insurer assailing the judgment and award dated 22.11.2011, passed by the Senior Civil Judge, Asst. Sessions Judge and Member Additional M.A.C.T., Bailhongal, in MVC No.588/2010, MVC No.589/2010 and MVC No.2693/2009. MFA Crob.100065/2014 and MFA Crob.100066/2014 have been preferred by the cross-objectors/claimants assailing 8 the judgment and award passed dated 22.11.2011, passed by the Senior Civil Judge, Asst. Sessions Judge and Member Additional M.A.C.T., Bailhongal, in MVC No.588/2010, 589/2010. The Tribunal by its judgment and award allowed the claim petitions in part by fastening the liability on both the vehicle and the insurers of both the vehicles are directed to indemnify the claim in the ratio of 80% and 20%.
2. I have heard the arguments advanced by Sri. S. V. Yaji, the learned counsel for the appellant/insurer of tempo trax and Smt. Geeta K. M. @ Pawar, the learned counsel for respondent/owner of the tempo trax and Sri. G.N. Raichur, the learned counsel appearing for the respondent/insurer of the lorry.
3. It is the contention of the learned counsel appearing for the appellant/insurer of tempo trax that the Tribunal has committed serious error in directing the appellant/insurer of tempo trax to indemnify the claim by apportioning the liability to the extent of 80% when the material records clearly indicates the fact the accident in question has occurred due to parking of the lorry bearing 9 No.KA-40/3698 in the middle of the road, without any indication and parking light. There has been non- consideration of material aspects mainly that the FIR and Charge sheet has been filed against the driver of both the vehicles but the Tribunal has erroneously fastened the liability on the appellant/insurer of the tempo trax to the extent of 80%. He seeks for setting aside the impugned judgment and award passed by the Tribunal and prays for fastening the entire liability on the insured and insurer of the lorry.
4. Per contra, the learned counsel appearing for the appellant/insurer of the lorry has argued by justifying the judgment and award passed by the Tribunal. He further contended that the Tribunal has rightly fastened the liability to the extent of 80% on the insurer of the tempo trax as the driver of the tempo trax dashed the parked lorry without taking due care and caution as expected by the prudent driver and if he could have taken the due care and caution, the accident could have been avoided. The alleged accident occurred on his own negligent and not on the negligent act 10 on the part of the driver of the lorry. The driver of the lorry had parked the lorry by side of the road. The Tribunal after going through the records has rightly fastened the liability to the extent of 80% on the insurer of the tempo trax and to the extent of 20% on the insurer of the lorry. There is no infirmity in the order passed by the Tribunal and hence he prayed for dismissal of all the appeals by confirming the judgment and award passed by the Tribunal.
5. The learned counsel appearing for the cross- objectors/claimants has also argued by supporting the judgment and award passed by the Tribunal to the extent of fastening of the liability and prayed for dismissal of the appeals preferred by the appellant/insurer. He further contended that the compensation awarded by the Tribunal is on the lower side as the monthly income taken by the Tribunal for assessing the compensation is on the lower side. In that light he prayed for allowing the cross-objections by enhancing the compensation awarded by the Tribunal.
6. Having heard the learned counsel appearing for the parties and on perusal of the judgment and award in 11 question it would indicate that road on which the accident in question occurred is running East-West. It is a State Highway from Belgaum to Bagalkot and also runs vice-versa. Tempo trax bearing registration No.KA-24/M-1905 was proceeding from Belgaum towards Bagalkot i.e., East to West and lorry bearing registration No.KA 40/3698 had been parked on the edge of the road facing West. Accident in question occurred around 8 p.m. Undisputedly, there was no light in the said area and adjacent to the asphalted road on either side of the road, there is 5 ft kaccha road. The driver of the lorry had parked the said lorry on the center of the road and if the same had been parked on the kaccha road, accident could have been avoided. Likewise, the driver of lorry after having parked the said vehicle on the center of the road ought to have switched on the parking lights to avoid the accident in question. Driver of the said lorry had not taken any care and caution to ensure that the vehicles coming from the hind side would notice about said lorry having been parked on the middle of the road either by putting up a barricade by using stones as is done in such 12 circumstances by the drivers to avoid accident. This would only indicate that driver of the lorry has also contributed to the alleged accident by parking his vehicle on the middle of the road. The driver of tempo trax while proceeding from East to West also should have visualized about the vehicles having been parked by the side of road and he is expected to be vigilant, careful and cautious to avoid any such possibility and it is expected of a prudent driver to anticipate such incidents. On account of the speed in which he was proceeding, obviously, he could not avoid the accident particularly when the lorry had been parked on the middle of the road. As such, he has rammed his tempo trax to the hind side of the lorry resulting in all the inmates of tempo trax namely the passengers sustaining grievous injuries and also resulting in death of two persons. The Investigating Authorities having been taken investigation based on the complaint has proceeded to register the complaint against drivers of both the vehicles. On conclusion of investigation, a charge-sheet has also been filed against drivers of both the vehicles. Despite such evidence being available on record, 13 Tribunal has held that there are no independent witnesses to prove the nature of accident. On the other hand, inmates of the tempo trax who came to be examined as PWs-2 to PWs- 13 have in their cross-examination stated that lorry was parked without indicators, without keeping stones or wooden pieces and it was parked on the middle of the road. The suggestion made to these witnesses in the cross-examination that the accident was on account of the driver of the tempo trax having not avoided the oncoming vehicle has been denied by them. In view of the fact that eye witnesses to the accident who are none other than the inmates of the tempo trax having categorically stated that on account of lorry having been parked in the middle of the road, accident in question had occurred and also in view of the fact that the jurisdictional police having filed charge-sheet against drivers of both the vehicles, negligence attributable to the drivers of both the vehicles is to be apportioned in the ratio of 50:50 and not 80:20 between tempo trax driver and lorry driver as opined by the Tribunal.
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7. At this juncture the learned counsel for the appellant/insurer of the tempo trax brought to my notice that in the judgment passed by this Court in MFA No.21243/2012 to 21252/2012, arising out of the same accident, therein this Court has already held that the drivers of both the vehicles have contributed to the alleged accident in the ratio of 50:50. By going through the said judgment and award, it is clear that this Court has apportioned the liability on both the insurers in the ratio of 50:50 . In that light, the contention taken up by the learned counsel for the appellant/insurer of tempo trax appears to be having force in law and the same is liable to be accepted. In that light, the apportionment is fixed on both the vehicles on the ratio of 50:50 each.
8. It is the further contention of the learned counsel for the appellant/insurer of the tempo trax that his liability is only to the extent of 11 persons in the tempo trax as the said policy is an Act policy and extra premium has been collected to cover the risk of 11 persons to the extent of Rs.1,00,000/- per passenger. It is well settled principles of 15 law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd v. Anjana Shyam and others, reported in (2007) 7 Supreme Court Cases 445 in para No. 22 and 24, which is observed as under;
22. Then arises the question, how to determine the compensation payable or how to quantify the compensation since there is no means of ascertaining who out of the overloaded passengers constitute the passengers covered by the insurance policy as permitted to be carried by the permit itself. As this Court has indicated, the purpose of the Act is to bring benefit to the third parties who are either injured or dead in an accident. It serves a social purpose. Keeping that in mind, we think that the practical and proper course would be to hold that the insurance company, in such a case, would be bound to cover the higher of the various awards and will be compelled to deposit the higher of the amounts of compensation awarded to the extent of the number of passengers covered by the insurance policy.
23. Illustratively, we may put it like this. In the case on hand, 42 passengers were the permitted passengers and they are the ones who have been insured by the insurance company. 90 persons have either died or got injured in the accident. Awards have been passed for varied sums. The Tribunal 16 should take into account the higher of the 42 awards made, add them up and direct the insurance company to deposit that lump sum. Thus, the liability of the insurance company would be to pay the compensation awarded to 42 out of the 90 passengers. It is to ensure that the maximum benefit is derived by the insurance taken for the passengers of the vehicle, that we hold that the 42 awards to be satisfied by the insurance company would be the 42 awards in the descending order starting from the highest of the awards. In other words, the higher of the 42 awards will be taken into account and it would be the sum total of those higher 42 awards that would be the amount that the insurance company would be liable to deposit. It will be for the Tribunal thereafter to direct distribution of the money so deposited by the insurance company proportionately to all the claimants, here all the 90, and leave all the claimants to recover the balance from the owner of the vehicle. In such cases, it will be necessary for the Tribunal, even at the initial stage, to make appropriate orders to ensure that the amount could be recovered from the owner by ordering attachment or by passing other restrictive orders against the owner so as to ensure the satisfaction in full of the awards that may be passed ultimately.
24. In these cases, we find that this Court has not issued notices to the claimants. We are therefore not 17 in a position to vary the decision of the High Court as regards the claimants. But, we have clarified the law on the question and we grant the insurance company a decree to recover the excess amount that it has deposited, from the owner, who has been issued notice and who has contested these appeals. Obviously, the principle indicated by us here will have to be applied by the Tribunal in the case from which the appeal against the interim award has been filed by the insurance company.
9. Further, the Hon'ble Apex Court in the case of Divisional Manager, National Insurance Company Limited, Hubli v. Smt. Laxmawwa and others, reported in 2009 (1) Kar. L. J. 625 (DB) has observed as under;
MOTOR VEHICLES ACT, 1988, Sections 166 and 149 - Motor accident - Injury - Compensation - Permit liability - Liability of insurer when owner committed breach of contract - Injured claim compensation - Tribunal allowed claim petition in part - Insurer appealed - Argued that vehicle involved was a Maxi Cab the capacity of which was 12 + 1 and policy of insurance was issued covering risk of only 12 passengers plus driver - Also alleged that vehicle was overloaded with 35 passengers - Hence owner committed breach of contract and as such insurer not liable contended liability of insurer cannot be enlarged - Held - even if vehicle overloaded insurer cannot avoid liability - But liability is limited to the number of passengers for whom insurance policy is issued - Cannot 18 also claim from owner as the Insurance Company not satisfying the awards of more than twelve persons where risk covered by policy - Tribunal is right in decreeing part.
10. It is a well settled preposition of law that if the insurance policy covers only permitted number of passengers, in such a case, insurer's liability held limited by the insurance taken out for the number of permitted passengers. It does not extend to the amounts decreed in respect of other passengers but harmonious construction of the provision and law laid down by the Apex Court. Therein the Hon'ble Apex Court has observed that the proper course for quantification of the compensation payable by the insurer, in a case, where the insured passengers and other passengers could not be identified, insurance company is bound to cover and accordingly deposit higher of the amounts of the compensation awarded and the remaining portion of the amount also has to be paid by the insurer. Then the lowest of the amount has to be recovered from the owner of the insured vehicle and that is the settled principle of law. Accordingly the insurer is hereby directed to follow 19 the ratio laid down in the cases quoted supra and deposit the amount accordingly in terms of the policy condition.
11. As could be seen from the judgment and award passed by the Tribunal in MVC No.588/2010 therein, the claimant has suffered injury to left upper lip and he has lost three upper teeth and injury to his chest and he was also inpatient for two days, it is the contention of the learned counsel for the appellant that the claimant has lost three upper teeth. The Tribunal has not considered the loss of marriage prospects as he was not married and the Tribunal has also not taken the income, which was prevailing during the said period. In order to substantiate the said fact that he has suffered the injuries, he has produced the wound certificate as per Ex.P145 and disability certificate as per Ex.P149.
12. It is the contention of the petitioner that as on the date of accident, he was agriculturist and LIC agent. But in order to substantiate the said fact, he has not produced any documents. But the Tribunal by taking the notional income at Rs.3,500/- and by relying upon the evidence of 20 PW17 the Doctor, has awarded the compensation as mentioned below:
1 Pain and suffering 7,000/- 2 Medicine and hospital charges 5,400/- 3 Nourishment charges 500/- 4 Attendant and conveyance charges 1,500/- 5 Loss of income during t5reatment 3,500/-
period 6 Loss of amenities and future 2,000/-
unhappiness Total Rs. 19,900/-
13. Though under the normal circumstances, the compensation awarded by the Tribunal appears to be justifiable, but at the time of taking the notional income the Tribunal ought to have kept into view the year of accident and wages prevailing during that particular period. Admittedly, the accident is of the year 2009 and during that particular period the notional income at Rs.5,000/- is the yardstick, which even used to be adopted in the settlement of cases before Lok Adalath. If that were to be adopted and the injuries if they are considered with reference to the avocation and there is no disability, as such, the Tribunal has rightly held that the said loss of teeth and other injuries is not going to come in the way of loss of future earning. But 21 the Tribunal has awarded the compensation on the other heads is on the lower side. In that light, the appellant- claimant is entitled to some compensation. In the light of the injuries suffered and loss of teeth is going to affect the future marriage prospects, in that light, the appellant- claimant is entitled to an amount of Rs.30,000/- towards pain and suffering, an amount of Rs.5,400/- towards medical expenses, an amount of Rs. 6,000/- towards attendant charges, conveyance, diet, nourishment and other incidental charges. Loss of income during laid off period Rs.10,000/- loss of amenities and discomfort Rs.30,000 and loss of marriage prospectus Rs.50,000/-. In all the appellant-claimant is entitled to a total compensation of Rs.1,31,400/- after deducting the compensation awarded by the Tribunal to the extent of Rs.19,900/- the appellant- claimant is entitled to an additional compensation of Rs.1,11,500/- with interest @ 6%.
14. In so far as, the judgment and award in MVC No.589/2010 is concerned, therein, the appellant-claimant has suffered fracture of right hip joint, fracture of both nasal 22 bones, fracture of left orbit, fracture of maxillary bone, fracture of zygomatic arch, injury to right eyebrow, upper lip and other injuries. In order to substantiate the said fact, he has also produced the wound certificate as per Ex.P173. He has also produced the disability certificate and has got examined the Doctor as PW14. he has deposed that as per Ex.P183, the claimant has suffered a disability to the extent of 20%, but he is not a treated Doctor. In that light, if the income is taken at Rs.5,000/- and if the disability is taken at 5%, then under such circumstances, it is going to meet the ends of justice. But, as could be seen from the judgment and award p[assed by the Tribunal, the compensation under the head of pain and suffering, loss of amenities and discomfort, loss of income during laid up period are all on the higher side. In that light, if an amount of Rs.50,000/- awarded globally by keeping in view the injuries and other things, then it is going to meet the ends of justice. In that light, globally an amount of Rs.50,000/- has been awarded, the remaining compensation which has been awarded by the Tribunal is kept intact. Globally an amount of Rs.50,000/- 23 has been awarded in addition to Rs.1,88,900/- as awarded by the Tribunal.
15. MFA No.21253/2012, MFA No.21254/2012 and MFA No.21242/2012 and MFA Crob.100065/2014 and MFA Crob.100066/2014 are allowed in part.
16. The amount in deposit made before this Court shall be transmitted to the jurisdictional Tribunal forthwith. The insurer is also directed to deposit remaining amount with up to date interest within a period of six weeks from the date of receipt of copy of this order.
17. Registry is directed to draw the award accordingly and send back the records forthwith.
Sd/-
JUDGE Yan/Mns