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Judgment
K. Bhakthavatsala, J.—The appellant/Insurance Company in MVC No. 5273/2004 on the file of Court of Small Causes/Additional M.A.C.T at Bangalore city, is before this Court u/s 173(1) of the Motor Vehicles Act, 1988, praying for setting aside the impugned Judgment and Award dated 03.09.2005.
Heard arguments.
The brief facts of the case leading to the filing of the appeal may be stated as under.
Respondent No. 1/claimant filed a claim petition u/s 166 of the Motor Vehicles Act, 1988, seeking compensation of Rs. 2,85,000/- towards personal injuries sustained by him in the motor accident that occurred on 11.01.2004 at about 9.00 p.m., when he was riding the motor cycle bearing No. KA-06/O-1088 on the Ring Road near Fly Over at Hebbal. He filed the claim petition against insurer and owner of the car bearing Registration No. KA-04/MA-4709.
It is the case of the claimant that Car bearing Registration No. KA-04/MA-4709 came from behind and over-took the motor-cycle and suddenly applied brake without giving signal, as a result of which, the petitioner applied brake, but still the claimant and the pillion rider were thrown out of the motor-cycle and therefore, they sustained grievous injuries. The insurer entered appearance and filed written statement. The Insurance Company sought for permission to contest the case on all the grounds as the owner of the car remained absent, he was placed exparte.
It is pertinent to mention that initially, the claim petition was filed u/s 166 of the Motor Vehicles Act Later on, by way of amendment, he got the provision of law amended as 163(A) of the Motor Vehicles Act, 1988. The insurer of the car filed written statement denying the averments of the claim petition and also taken the contention that the driver of the car had no valid driving licence to drive the same and there was no rash and negligent act on the part of the driver of the car.
In view of the pleadings, the Tribunal framed necessary issues. In support of the case of the claimant, he got himself examined as P.W.I besides examining Dr. P.N. Prakash as P.W.2 and got marked Exs.P-1 to P-13. In rebuttal, the Officer of the Insurance Company/A. Sagayraj was examined as R.W.1 and got marked Charge-sheet and Insurance Policy as Ex.R-1 and R-2. The Tribunal, on appreciation of evidence on record, answered Issue No. 1 in the affirmative holding that the claimant sustained injuries in the motor accident arising out of the car bearing No. KA-04/MA-4709. Issue No. 2 was answered holding that the claimant was entitled for compensation of Rs. 1,87,400/- with interest at the rate of G% p.a., from the respondents, whose liability is joint and several. This is impugned in this appeal.
In spite of service of notice on Respondent No. 1, he has not entered appearance. Since Respondent No. 2 was placed exparte, notice to Respondent No. 2 in this appeal is dispensed with at the risk of the appellant.
Learned Counsel for the appellant submits that the Tribunal erred in holding that the accident occurred due to rash and negligent driving of the car. Further, the Respondent No. 1/claimant suppressed the fact that the police laid charge-sheet against the claimant himself. Under such circumstances, the Tribunal was not justified in awarding compensation of Rs. 1,87,400/- u/s 163A of the Motor Vehicles Act.
Learned Counsel for the appellant cited a decision reported in Appaji (since deceased) and Another Vs. M. Krishna and Another, on the point that when the claimant or the deceased himself is responsible for the accident, he cannot maintain a petition u/s 163A of the Motor Vehicles Act, 1988.
It is pertinent to mention that initially a claim petition was filed u/s 166 of the Motor Vehicles Act, 1988. Subsequently, the claimant got amended the petition as one u/s 163A of the Motor Vehicles Act. Therefore, the Issue No. 1 has been framed as under:
Whether the petitioner proves that the injuries sustained by him in the accident arising out of the use of the Hyundai Accent Car bearing No. KA-04/MA-4709, on Ring Road, near Fly Over, Hebbal, Bangalore, on 11.01.2004 at about 9.00 p.m?
Therefore, the first ground urged by the learned Counsel for the appellant that the Tribunal erred ia holding that the accident in question occurred due to rash and negligent driving of the car, is not correct. It is pertinent to mention that when the claim petition is filed u/s 163A of the Motor Vehicles Act, 1988, 163A of the Motor Vehicles Act, which is a special provision, payment of compensation is as per the schedule to the provision. In other words, according to Section 163A, notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle of the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of the motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. According to Sub-section (2) of Section 163A, in any claim for compensation under Sub-section (1), the claimant shall not be required to plead or establish that the death or the permanent disablement or respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
In the instant case, it is placed on record that, the driver of the car came in a rash and negligent manner and over took the motor-cycle and suddenly applied brake without signal and as a result of which, the rider of the motor-cycle also applied brake, but in vain. The hind portion of the car as well as the front portion of the motor-cycle was damaged. Therefore, it is implicit that the car is involved in the accident and due to use of the car, the claimant sustained grievous injuries. The claimant is not at fault, but he sustained fracture of right tibia and fibula. The claimant was treated as in-patient is> Baptist Hospital at Bangalore from 11.01.2004 to 19.01.2004. Thereafter, he took treatment in Sanjay Gandhi Hospital. According to the claimant, he has spent a sum of Rs. 35,000/- towards medical expenses, nourishment and conveyance expenses. It is the case of the claimant that be has got permanent physical disablement to the extent of 30% with reference to right lower limb and 10% to the whole body. The claimant has pleaded that he was working as a Marble Layer and earning Rs. 250/- per day. But the Tribunal has fixed monthly earnings of the claimant at Rs. 6,000/- per month.
For the reasons stated in the impugned Judgment, the Tribunal has awarded compensation in favour of the claimant as under:
Rs. Pain and suffering 15,000-00 Medical expenses 25,000-00 Compensation towards grievous injuries 10,000-00 Loss of future earning (Rs. 6,000/- x 10% x 12 x 17) 1,22,400-00 Future medical expenses 10,000-00 Loss of amenities 5,000-00 ----------------- Total Rs. 1,87,400-00 ------------------
It is pertinent to mention that the compensation awarded in favour of the claimant is in accordance with Schedule II appended to Section 163A of the Motor Vehicles Act, 1988. The appellant has utterly failed to establish before the Tribunal that the car was not involved in the accident Under such circumstances, there is no merit in the case of the appellant The decision cited by the learned Counsel rendered in Appaji''s case is not applicable to the case on hand. There is no good ground to entertain the appeal.
In the result, the appeal fails and the same in hereby dismissed.