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Judgment
P.D. Waingankar, J.—Both these appeals by the insurer and the claimant are preferred against the judgment and award dated 18.7.2009 in MVC No. 453/2005 on the file of V MACT, Bellary.
The facts in brief which gave rise to these appeals are as under:--
"On 5.3.2005, the claimant-B.Kaneppa was proceeding on a motor bike as a pillion rider. At that time, a tractor-tailor bearing No. KA-35/T-2869-70 came from opposite direction in a rash and negligent manner and dashed against the motor cycle. As a result, the claimant who was on the pillion fell down and sustained grievous injuries. He filed a claim petition under Section 166 of M.V. Act claiming compensation from owner and insurer of the Tractor and Trailor. The claim petition was opposed by the appellant -insurer of the Tractor and Trailor on the ground that the tractor and trailor which said to have caused the accident was not at all insured by the appellant apart from opposing the claim petition on various other grounds. The claim petition came up for consideration before the tribunal. The tribunal upon appreciation of evidence recorded a finding that the accident and the resultant injury sustained by the claimant were due to rash and negligent driving of the tractor trailor No. KA-35/T-2869-70 by its driver and thereby the tribunal awarded a total compensation of Rs. 50,800/- together with 6% interest from the date of petition till the date of realisation. Aggrieved by the finding recorded by the tribunal that the tractor and trailor in question was insured by the appellant-insurance company, M.F.A. No. 23702/2009 is preferred by the appellant-insurance company. Aggrieved by the quantum of compensation awarded, the claimant preferred M.F.A. No. 23145/2009." 3. I have heard both the learned counsel appearing for the insurance company and learned counsel appearing for the claimant.
Upon hearing the arguments and upon consideration of the material on record, the following points arise for my determination as under:--
"1. Whether the tractor trailer bearing No. KA-35/T-2869-70 was not insured by the appellant-insurance company as on 5.3.2004 the date of the accident?
Whether the compensation awarded by the tribunal is just and reasonable?"
This appeal is filed by the insurance company questioning the liability to pay the compensation awarded by the tribunal on the ground that the tractor trailor involved in the accident was not insured by them. Their further case is that they did issue policy in favour of respondent No. 1 G. Krishnappa in respect of tractor trailor bearing registration No. KA-35/T-1875-1876 and they did not issue policy in respect of tractor KA-35/T-2869-70. They have produced the proposal form as per Ex-R1 and policy copy Ex-R2. In Ex-R1 the proposal form, the vehicle is shown tractor bearing registration No. KA-35/T-1875-1876. It is in the name of respondent No. 1 G. Krishnappa. In Ex-R1, the proposal for insurance is signed by Manager for Tunga Bhadra Grameena Bank, Kudligi Taluk. Ex-R2 is the insurance certificate issued to Sri. G. Krishnappa-R1 wherein the registration number of the tractor is shown as KA-35-T-1875. The period shown therein is 11.3.2003 to midnight of 10.3.2004. The accident occurred on 5.3.2004. Therefore one thing is clear that the policy was in force as on the date of the accident. The registration particulars issued by RTO, Hospet dated 29.7.2008 would reveal that the tractor KA-35/T-2869-2870 was registered in the name of G. Krishnappa on 24.6.2003. It has come in the evidence that respondent No. 1. G. krishanappa was not having any other tractor trailor than tractor and trailer No. KA-35-T/1875. When the policy stands in the name of G. Krishnappa the respondent No. 1 and he was the owner of tractor trailor KA-35/T-1875, merely because in the policy different tractor and trailer number is shown by inadvertence , the insurance company cannot be absolved from its liability to pay the compensation. It is evident that the tractor and trailor No. KA-35/T-1875 was hypothecated to Tungabhadra Grameena Bank, and the proposal was submitted by Tungabhadra Grameena bank to the insurance company in respect of tractor and trailor belonging to respondent No. 1 as the tractor and trailor was hypothecated to the Bank by showing the tractor bearing No. KA-35/T-1875-1876 wrongly. It is purely an error committed by the officials of Tungabhadra Grameena Bank. The registration particulars of tractor and trailor Number KA-35/T-1875-76 issued by RTO, Hospet would go to show that the said tractor stands in the name of one N.S. Kotrabasappa, S/o. Chennabasappa. In that event, the policy Ex-R2 ought to have been issued in the name of N.S. Kotrabasappa, but the policy is issued in the name of respondent No. 1 G. Krishnappa in respect of KA-35/T-1875. The tribunal on proper appreciation of evidence rightly recorded a finding that because of the mistake committed by Tungabhadra Grameena Bank, while mentioning the registration number of the tractor in the proposal form Ex. R-1, the policy came to be issued in the name of G. Krishnappa by showing the registration number on the tractor as KA-35-T/1875 though G. Krishnappa was not the owner of the said tractor, but he was the owner of the tractor involved in the accident which was insured by United India Insurance Co. Ltd., Taking advantage of the mistake committed by the Manager, Tungabhadra Grameena Bank, the insurance company is trying to wriggle out of its liability to pay the compensation. There is no substance in the appeal filed by the Insurance company.
The claimant dissatisfied with the quantum of compensation awarded by the Tribunal preferred M.F.A. No. 23145/2009. The Tribunal has awarded a total compensation of Rs. 50,800/-, under the head ''loss of earning capacity'' Rs. 37,800/-, Rs. 3,000/- towards medical expenses and Rs. 10,000/- towards pain and suffering. Ex. P3 is the wound certificate. It indicates that the claimant suffered fracture of middle 1/3rd of shaft left humerus and clots head injury with concussion. The doctor at Community Health Centre, Jogihalli who issued the wound certified has opined that both the injuries are grievous in nature. It is also fortified by Ex. P10 the X-ray. Ex. P7 is the discharge card issued by Chitagari District Hospital, Davanagere. It reveals that he sustained fracture of middle 1/3rd left humerus for which he underwent open reduction and internal fixation with D.C.P. left humerus on 16.03.2004. It is further seen from Ex. P7 that he was admitted on 05.03.2004 and discharged on 26.03.2004. Having regard to gravity of the injuries suffered by the claimant, the period of hospitalization and that he underwent operation the amount of Rs. 10,000/- awarded by the Tribunal under the head ''injury, pain and suffering'' is definitely on the lower side. Taking note of the fact that the accident had occurred in the year 2004, I am inclined to award a sum of Rs. 40,000/- under the head ''injury, pain and sufferings'' as against Rs. 10,000/- awarded by the Tribunal. Further, the Tribunal has awarded a sum of Rs. 3,000/- towards medical expenses based on the medical bills produced. The question of interference by this Court does not arise. The Tribunal by taking the monthly income of the claimant at Rs. 3,000/- and the disability of the whole body as 15%, awarded sum of Rs. 37,800/- under the head ''loss of future earning capacity''. The income of the claimant taken @ of Rs. 3,000/- per month is on the lower side. It would be just and proper for me to take the monthly income as Rs. 4,000/-. The claimant was aged about 55 years at the time of the accident. So the multiplier applicable is ''11''. In that event, the loss of future income on account of 15% disability of the whole body comes to Rs. 79,200/-. So an amount of Rs. 79,200/- is awarded as against Rs. 37,800/-awarded by the tribunal. The tribunal has not awarded any amount under the had loss of income during the period of treatment, attendant charges and conveyance charges and the loss of future amenities. As such, the claimant is entitled for a sum of Rs. 8,000 under the head ''loss of income during the period of treatment'' for a period of two months, Rs. 5,000/- towards ''attendant charges and conveyance and Rs. 15,000/- towards loss of amenities. Thus the claimant is entitled for a total compensation of Rs. 1,50,200/- as against Rs. 50,800/- awarded by the tribunal. Accordingly, I pass the following order:--
"1. MFA No. 23702/2009 filed by the Insurance Company is dismissed.
MFA. No. 23145/2009 filed by the Claimant is partly allowed. The judgment and award dated 18.7.2009 in MVC No. 453/2005 on the file of V MACT, Bellary stands modified awarding a total compensation of Rs. 1,50,200/- together 6% interest from the date of petition till the date of realisation."
The second respondent-United India Insurance is directed to deposit the award amount together 6% interest within two months from the date of receipt of copy of the order.
In the event of deposit, the entire award amount shall be released to the claimant. The amount in deposit by the Insurance Company shall be transmitted to the tribunal.