Peekya Naik vs P M. Hanuma Naik The Divisional Manager, National Insurance Co. Ltd. Vs Peekya Naik

K. Govindarajulu

Both these MFAs are preferred challenging the orders passed by the Additional MACT Ranebennur in MVC.NO. 167/2005 So, by a common order both the cases are taken up for consideration. The parties will be referred according to their ranking before the MACT for convenience

The facts necessary for the consideration of the appeals are as follows:

The case of the claimant Peekya Naik is that on the night of 10.6.2000 at about 11.30 p.m., the petitioner being a hamali in the TT unit Noka.35/T-3339 and Trailor KA-35/T-6669, as per the instruction of the owner P.M.Hanuma Naik was travelling in the said vehicle to unload at Kallalli tanda, then driver of it has driven the vehicle rashly and negligently. it resulted in accident near the land of Haladappa near Kallalli Tanda and he sustained injuries, so seek for compensation.

The same is resisted by the Insurance Company contending that the claim is not maintainable u/s 166 of the Motor Vehicles Act.

The learned Member of the Tribunal in his discussion in regard to the maintainability of the application u/s 166 of the Motor Vehicles Act forms an opinion that it is only a technical defect and fixed the compensation at Rs. 1,05,362/-.

The claimant has preferred MFA.NO. 1511 7/2007 seeking for enhancement whereas the Insurance Company/respondent no.2 in the MVC has preferred MFA.NO. 187/2008 seeking for dismissal of the MVC.

The learned Advocate for the Insurance Company vehemently contends that the relationship of claimant for seeking compensation is master and servant. So, the claim application u/s 166 is not maintainable. To maintain an application u/s 166. provisions of Section 147 have to be complied, claimant is not a third party, claimant is not an authorised representative of the goods, the claim application is not maintainable, so seek for exonerating the Company from paying the compensation.

The learned Advocate for the claimant contend the claimant while working according to the instructions of the owner of the vehicle has travelled in the vehicle. delivered the goods while returning, the driver has caused the accident. So, the principles u/s 147 of the Motor Vehicles Act, that the owner or the authorised representative is entitled to move along with the goods is proved, so the approach of the learned trial Judge is proper, also add that the compensation awarded is on lesser side as in a case of injury deducting 1/3 for the personal expenses while calculating the loss of earning capacity is not proper, so pray for enhancing the compensation.

The submissions probablize accident is admitted, actionable negligence is not disputed. The liability of the Insurance Company has to be gone into by the Court and a finding has to be given by the Court. According to the FIR, the marriage party was moving in the trailer, when the accident occurred. P.W.1/claimant contends he sustained the injuries while returning after delivery of the goods, but in the cross-examination admits that two of the other inmates in the trailor also died. This admission probablizes and supports the case as the one found in the FIR, improbablize the case of the claimant alone travelling in the trailor. The trailor is used by the marriage party use of the tractor/trailor for transportation is proved so, the use of the vehicle is contrary to Section 149 of the Motor Vehicles Act, as the non-transport vehicle is used for transportation purposes. So, Court accepts the submission of the learned Advocate for the Insurance Company to absolve the Insurance Company from paying the compensation.

Further, there is force in the submission of the learned Advocate for the claimant that the deductions of 1/3 for the personal expenses in a case of personal injuries/claims do not arise. So to that extent, the compensation disallowed has to be added. So, under the head of loss of earning capacity and also under the head of loss of income during the laid up period, the claimant is entitled for additional compensation. Under the head of loss of earning capacity, the income of the injured is assessed at Rs.60/- per day which comes to Rs. 1800/- per month and Rs. 21,600 per annum. 15% of the disability assessed by the learned Member of the Tribunal is accepted and multiplier that is applicable is 14. So, it works out to Rs. 45,360/ (Rs. 21,600 X 15%=Rs. 3240 X 14) towards loss of earning capacity and under the head of loss of income during the laid up period, the claimant is awarded a further sum of Rs. 10.000/-. The claimant is thus entitled for this additional compensation of Rs. 55,360/- with interest @ 6% from the date of application till deposit. 187/2008 is allowed. The Insurance Company is absolved from paying the compensation. The amount in deposit in MFA. No. 187/2008 be paid back to the Insurance Company. MFA. No. 151 17/2007 is allowed in part. The Owner of tractor trailor to pay the additional compensation also with interest at 6% per annum.