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Judgment
K.L. Manjunath, J.—MFA.6659/07 is filed by the ''National Insurance Company Limited challenging the legality and correctness of the judgment and award passed by the III Addl. Civil Judge (Sr. Dn.) and Addl. MACT Dharwad dated 24.01.2007 in MVC No. 501/2004.
MFA 3067/2007 is filed by the claimant seeking for enhancement of compensation. Therefore, these two appeals are heard together.
The admitted facts in these two appeals are as hereunder:
The claimant was aged about: 19 years. He was working as a Hamali under one Sanjeev S.Godke who was the owner of the goods auto bearing registration No. KA-25/A-7913, which has been insured with the appellant/insurance company. White discharging his duty as an employee under the 1st respondent, he has sustained grievous injuries which resulted in amputation of his right upper limb above knee and also other injuries. As a result of which, he is unable to discharge his duty as a labour. Therefore, he filed a claim petition u/s 166 of the Motor Vehicles Act, The insurance company contended that the claim petition lodged by the claimant was not maintainable as he was required to file the petition before the Commissioner for Workmen''s Compensation and the claim petition is not maintainable. The Tribunal considering the evidence let-in by the parties, came to the conclusion that the claimant is entitled for a total compensation of Rs. 7,57.600/- with interest at 6% per annum. Being not satisfied, with the same, both claimant and insurance company have filed these two appeals.
The main contention of the insurance company before us is that the Tribunal has committed an error in entertaining the claim petition and awarding compensation u/s 166 of the Motor Vehicles Act According to him, though the claimant was an employee of 1st respondent and sustained injuries while discharging his duties as an employee, the claimant, was required to file the claim petition under the Workmen''s Compensation Act and not under Motor Vehicles Act. He further contends that even if the claimant has filed the claim petition u/s 166 of the Motor Vehicles Act, the Tribunal was required to consider the application of the claimant and awarded compensation under the Workmen''s Compensation Act. In the circumstances, he requests the Court to modify the impugned judgment and award.
Per contra, the learned counsel for the claimant contends that the claimant, has spent lakhs of rupees for his medical expenses as he is unable to spend anything, the tribunal is justified in awarding compensation. He further contends that the claimant is also entitled for enhancement of compensation as the compensation awarded by the Tribunal is inadequate.
Having heard the learned counsel for the parties, the only point to be considered by us in these appeals is:-
Whether the claim petition filed by the claimant u/s 166 of the Motor Vehicles Act was maintainable and whether the compensation awarded by the Tribunal requires to be interfered with?''.
It is not in dispute that the claimant himself has stated in the claim petition that he has "sustained injuries while discharging his duty as a coolie under the owner of the goods vehicle. Therefore the master and servant relationship is not in dispute. When he sustained injuries as a workman, he was required to filed the claim petition before the Commissioner for Workmen''s Compensation. Even if he had filed the petition u/s 166 of the Motor Vehicles act, the Tribunal is bound to consider the compensation payable to the claimant under Workmen''s Compensation Act. Therefore, we are of the opinion that the Tribunal has committed an error in awarding compensation treating the petition under Motor Vehicles Act. In these circumstances, we are of the opinion that we have to calculate the quantum of compensation payable to the claimant under the Workmen''s Compensation Act. If the income of the claimant is taken as Rs. 3,500/- per month, 60% of the same would be Rs. 2,100/-. Though, Ins right hand is amputed above knee, as he has sustained other injuries, as he cannot do any other work, we have to consider the functional disability at. 100% only. If we consider the disability at 100% only, we have to apply the factor, considering his age 19 years, ''225.22''. If it is so, the claimant is entitled for total compensation of Rs. 4,72,962/-with interest at 12% per annum to be calculated from thirty days from the date, of accident as the nature of injuries are schedule; injuries. Accordingly, these two appeals arc-disposed of by modifying the judgment and award of the Tribunal.
in the result, the claimant is entitled for total compensation of Rs. 4,72,962/- with interest at 12% per annum to be calculated from 04.08.2004 since the accident has occurred, on 04.07.2004. The entire compensation awarded in this appeal shall be paid by the appellant./insurance company. Out of the total compensation payable, 70% of the same with accrued interest thereon, shall be deposited in the name of the claimant, for a period of five years and he is entitled to withdraw the periodical interest. The amount in deposit, if any, is ordered to be transmitted to the Tribunal,