Liability of the Insurance Company to pay compensation and recover from the owner of the offending vehicle.

JUDGMENT

H.T. Narendra Prasad, J. - MFA No. 8166/2018 is filed by the claimant whereas MFA No. 4985/2018 is filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, (for short, 'the Act') being aggrieved by the judgment and award dated 02.04.2018 passed by the MACT, Udupi (sitting at Kundapura) in MVC No. 1152/2016. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.

2. Facts giving rise to the filing of the appeal briefly stated are that on 12.11.2015 at about 10.45 a.m., the claimant was proceeding as a pillion rider in the motorcycle bearing registration No. KA-47/J-7864 towards Bhatkal side. When they reached near Agga, Hasrolli, Sagar Road, Bhatkal, another motorcycle bearing Engine No. U3S5C1FLO52482 being driven by its rider at a high speed and in a rash and negligent manner came from Bhatkal side towards Sagar side and dashed to the claimant's motorcycle. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Section 166 of the Act seeking compensation. It was pleaded that he spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent riding of the offending vehicle by its rider.

4. On service of notice, the respondent Nos. 2 and 4 appeared through counsel and filed written statements in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded by respondent No. 2 that the accident occurred solely due to the negligence of the motorcycle bearing registration No. KA-47/J-7854 only. It was further pleaded that the amount claimed by the claimant is exorbitant. It was pleaded by respondent No. 4 that the motorcycle bearing registration No. KA-47/J-7854 is insured with this respondent and liability if any is subject to terms, conditions and limitations of the policy. It was further pleaded that the rider of the above motorcycle was not holding valid and effective driving licence as on the date of the accident. It was further pleaded that the petition is bad for mis-joinder of necessary parties. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent Nos. 1 and 3 did not appear before the Tribunal inspite of service of notice and were placed ex-parte.

5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr. Dinesh Kumar Shetty as PW-2 and got exhibited documents namely Ex.P1 to Ex.P10. On behalf of the respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R1 to Ex.R4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs. 4,10,590/- along with interest at the rate of 6% p.a. and directed the insurer of the offending vehicle, i.e., National Insurance Company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.

6. The learned counsel for the claimant has raised the following contentions:

Firstly, even though the claimant claims that he was doing Centering and Painting work and earning Rs. 20,000/- per month, but the Tribunal has taken the notional income as merely as Rs. 9,000/- per month.

Secondly, PW-2, the doctor has stated in his evidence that the claimant has suffered disability of 24% to right leg but the Tribunal has considered the whole body disability as 12% which is on the lower side.

Thirdly, due to the