B.H. Harish vs H.B. Lingaraju Shetty Alias Lingaraju, H.R. Umesha and The National Insurance Company Ltd.

N.K. Patil, J.—This appeal by the appellant-owner of the offending vehicle is directed against the impugned judgment and award dated 09/08/2010 passed in MVC No. 1/2007, by the Principal District Judge and Member, Motor Accident Claims Tribunal, Chikmagalur, (hereinafter referred to as ''Tribunal'' for short). The Tribunal, by its judgment and award, has awarded a sum of Rs. 4,16,426/- with interest at 6% p.a. from the date of petition till its realization and directed the driver and owner-respondent Nos. 1 and 2 to pay Rs. 1,64,426/- with interest and the Insurer-respondent No. 3 to pay Rs. 2,52,000/- with interest to the claimant as per the terms and conditions of the policy. Being aggrieved by the same, the appellant-owner of the offending vehicle has presented this appeal, on the ground that, issuing a direction to the driver and owner of the of the offending vehicle to pay Rs. 1,64,426/- with interest and the Insurer to pay Rs. 2,52,000/- with interest cannot be sustained and is liable to be modified, fixing the entire liability on the Insurer as per the terms and conditions of the policy.

In brief, the facts of the case are:

The claimant was working as Cleaner and Loader in the Mini Goods Lorry bearing Reg. No. KA. 18/7818. On 13.6.2006 he along with other loaders went in the said mini lorry to Nidaghatta and loaded the lorry with Tamota and were proceeding towards Pillenahalli to load some more Tamota, at that time, the driver of the said Mini Lorry drove the same in a rash and negligent manner with speed, lost control over it and dashed against a bridge on the road side between Nanjappanna Yerekavalu and Pillenahlali, due to which, lorry capsized and he sustained grievously injuries, viz., degloving injury over right lower leg with severe crushing of right foot below the ankle, fracture to 2nd to 7th ribs on right side of the chest and abrasion over the forehead. Immediately, he was shifted to Holycross hospital and thereafter, to Nanjappa hospital Shimoga, where he took treatment as inpatient, his right leg was amputated and thereafter, to M.G. Hospital, Chikmagalur and thereafter, on the advise of the Doctor, he has taken bed rest and follow-up treatment.

It is the further case of the claimant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. Due to the injuries sustained by the appellant, he has suffered permanent disability. The Doctor has assessed the disability at 40% to the whole body which is permanent in nature. Therefore, appellant has filed a claim petition before the Tribunal u/s 166 of M.V. Act, claiming compensation against the driver, owner and insurer of the offending vehicle.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 4,16,426/- as compensation under different heads with interest at 6% p.a., from the date of petition till the date of realization and directed the driver and owner of the offending vehicle to pay Rs. 1,64,426/- with interest and the Insurer to pay Rs. 2,52,000/- with interest. Being aggrieved by the same, appellant has presented this appeal.

I have heard the learned counsel appearing for appellant, learned counsel for claimant and learned counsel appearing for Insurer.

Learned counsel for the appellant, at the outset submitted that, the claimant cannot maintain a petition u/s 166 of MV Act and he has to file a petition under Workmen''s Compensation Act, for the reason that, at the time of the accident, he was working as Cleaner in the said lorry. Further, he submits that as per package policy, the insurer is liable to indemnify the entire award amount awarded by the Tribunal. But without any justification the Tribunal has issued a direction to the driver and owner to pay a sum of Rs. 1,64,426/- with interest and to the Insurer to pay a sum of Rs. 2,52,000/- with interest. The said direction issued by the Tribunal cannot be sustained and is liable to be modified, directing the insurer to indemnify the entire award amount. Further, he submits that the quantum of compensation awarded by the Tribunal is on higher side and is liable to be reduced. Therefore, he submitted that the impugned judgment and award is liable to be modified.

As against this, learned counsel for the claimant and the learned counsel for Insurer, have substantiated that the impugned judgment and award is just and proper and after due appreciation of the oral and documentary evidence available on file and in terms of the package policy issued by the insurer vide Ex. R3 and therefore, it does not call for interference.

After hearing the learned counsel for the parties and after perusal of the impugned judgment and award passed by the Tribunal, it emerges that, the occurrence of the accident and the resultant injuries sustained by the claimant are not in dispute. Further, it emerges that, the Tribunal, after considering the material available on record, taking into consideration the nature of injuries sustained by the claimant, the nature and duration of the treatment taken by him, the percentage of disability suffered by him and also taking into consideration his age and occupation, has justified in assessing the income of the claimant at Rs. 3,000/- per month, applying 14 multiplier since he was aged about 45 years and in awarding a sum of Rs. 4,16,426/- with interest at 6% p.a., from the date of petition till its realization under different heads, and therefore, it does not call for interference.

So far as the submission of the learned counsel appearing for the appellant that he is not liable to indemnify the award amount of Rs. 1,64,426/- with interest at 6% p.a. and such a direction issued by the Tribunal cannot be sustained is liable to be modified is concerned, the said submission cannot be accepted nor it has got any substances. The Tribunal, after due consideration of Ex. P3- policy, its terms and conditions and following the decision of the this Court reported in Smt. Bhimavva and Others Vs. Shankar @ Adya and Others, wherein, it is held that, the liability of the insurer for payment of compensation could be statutory or contractual and Section 167 of Act 59 of 1988 states that non-obstante clause and thus claimants are entitled to claim compensation under either of the Act and nor under both Acts, and after recording the finding of fact in paras 18 and 19 of its judgment after critical valuation of oral and documentary evidence, has proceeded to award the compensation of Rs. 4,16,426/- with interest at 6% p.a., from the date of petition till is realization and directed the driver, owner and insurer to pay the same, as stated supra. The reasoning given by the Tribunal for fixing the liability and directing the respondents to indemnify the same, is well considered and well founded one. Therefore, I do not find any error or miscarriage of justice in the same, which warrants interference. Nor I find any substance in the said submission and hence, it is liable to be dismissed and accordingly it is dismissed.

For the foregoing reasons, the appeal filed by the appellant is dismissed as devoid of merits.

The amount deposited by the appellant shall be transmitted to the Tribunal forthwith. Ordered accordingly.