United India Insurance Co. Ltd. vs Frances

K.N. Phaneendra, J.—United India Insurance Co. who is the respondent No. 2 in MVC No. 2654/2012 on the file of Civil Judge (Senior Judge), Khanapur & Addl. MACT at Khanapur dated 20.05.2009 preferred this appeal challenging the award on two counts. It is contended that the Tribunal has committed an error in failing to understand that as per Section 163A of the M.V. Act and only a victim of the accident is entitled to claim compensation and not the wrong doer himself. It is also contended that the Tribunal has committed a serious error in awarding compensation as if it is a claim petition u/S. 166 of M.V. Act instead of applying structural formula u/S. 163A of the M.V. Act read with Schedule-II.

I have heard the arguments of learned counsels for respective parties.

On perusal of the records it discloses that the claimant before the trial Court has claimed compensation for the injuries sustained by him in the accident. It is his case that at about 11.30 hours the claimant and another were moving on a motorcycle. The claimant Francis was riding the motorcycle, which was hit by other vehicle, a truck bearing reg. No. KA-22/A-1244 which was driven by its driver in a rash and negligent manner. The records disclose that a criminal case has been registered against the rider of the motorcycle (claimant). However, the claim petition discloses that the owner and insurance company of both the vehicles have been made as parties but subsequently the petition as against respondent Nos. 3 and 4, i.e., the owner and insurer of the motorcycle bearing No. MH-09-TR-8463, were deleted.

Though the learned counsel Sri R.R. Mane at the initial stages pressed into service the first ground raised but subsequently the learned counsel has not seriously contested the said issue before this Court. Moreover, as could be seen from Sections 163-A and also Sections 163-A r/w Sec. 140 of the M.V. Act, if any accident takes place by using of two vehicles, both the owners of the vehicles and insured of the vehicles are jointly and severally liable to make payment. Therefore, deletion of the owner and the insurance company of the motorcycle in any manner does not affect the claim petition, however, in view of the joint and several liability as recognized under the statute under the above said provision, the second respondent will become liable to pay the compensation. Therefore, that ground is not available so far as the appellant is concerned.

Coming to the quantum of compensation awarded by the trial Court, in all the trial Court has awarded a sum of Rs. 2,67,400/-under different heads which are as follows:

On plain looking to the provisions of Section 163-A it clearly discloses that the Court is debarred from awarding the compensation under Section 166 of the M.V. Act when specifically the petition is under Section 163-A of M.V. Act. It goes without showing that the claimant is no other than the wrong doer. However, if he comes u/S. 166 of M.V. Act before this Court, he may not be entitled to any compensation. But, Section 163A made it clear, irrespective of the wrong doer, victim of the accident is entitled for the compensation, the raider under this provision is only entitled for compensation as per the second schedule of M.V. Act.

As rightly contended by the learned counsel for the appellant Sri R.R. Mane, that the trial Court could not have awarded compensation towards loss of amenities in life and towards attendance charges and also towards special diet and nutritious food and also towards shortening of life and enjoyment of the life. However, so far as the other heads are concerned, towards loss of future earning capacity and loss of medical bills, the learned counsel has absolutely no objection to grant such an amount. Otherwise, though that schedule also shows that, towards loss of pain and suffering, mental agony, the Court can award compensation at the rate of Rs. 5,000/- per grievous injury. Since there are, as many as three injuries, the claimant is entitled for Rs. 15,000/- instead of Rs. 50,000/- as ordered by the trial Court.

Calculating the total amount of compensation it will come round to Rs. 1,57,400/- as against Rs. 2,67,400/-. Therefore, the award passed by the learned judge of the trial Court is required to be modified. Hence, the following order is passed.

ORDER

The claimant is entitled for compensation under the loss of future earning capacity is Rs. 1,12,400/- and towards pain and suffering Rs. 15,000/-, towards loss of income during laid up period Rs. 15,000/- and towards medical expenses Rs. 15,000/-In all, the claimant is entitled for a total compensation of Rs. 1,57,400/- along with interest at the rate of 6% p.a. from the date of petition till the date of realisation.

As per the stay order granted by this Court, it appears the Insurance Company has already deposited the entire award amount together with interest. Deducting Rs. 1,57,400/-along with interest the remaining amount shall be refunded to the Insurance Company. The claimant is permitted to withdraw the awarded amount with interest. Office is hereby directed to disburse the said amount to the claimant.