Court modified compensation award due to improper assessment of disability and inadequate evaluation of damages for injuries sustained in an accident.

JUDGMENT :

GEETHA K.B., J.

These appeals are filed under Section 173 (1) of Motor Vehicles Act, 1988, by the insurer and claimant respectively questioning the Judgment and Award passed in MVC No.501/2018 dated 26.08.2022 on the file of Senior Civil Judge and Additional MACT, Haliyal (for short ’the Tribunal’).

2. The insurer has filed the appeal challenging the quantum of compensation on the ground of percentage of disability taken by the Tribunal and the claimant has filed the appeal praying for enhancement of compensation under several heads.

3. Parties would be referred to with their ranks as they were before the Tribunal for sake of convenience and clarity.

4. The claimant has filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, praying for compensation in respect of the accident that had taken place on 08.01.2018 at 02.30 p.m., near Jomathale village at Kanapur-Ramnagar road involving the motorcycle bearing registration No.KA-65/H-1579 and truck bearing registration No.MH-09/Q-5118. The contention of claimant is that due to the accident he has sustained following injuries:-

1)Ileum right side

2)Fracture of metacarpal little finger,

3)Fracture of left patella

4)Fracture of shaft of left femur and

5) Dislocation of right shoulder joint.

5. The claimant has taken treatment as an inpatient and an outpatient in several hospitals and he was advised to take rest. He was working as a labourer before the accident and thus he has sustained 100% functional disability, because he cannot do the manual labour work which he was doing earlier. Hence, prayed for compensation under several heads.

6. On receipt of notice, respondent No.1 filed his written statement, wherein, he contended that the accident happened due to rash and negligent riding of motorcycle bearing Registration No.KA-65/H-1579 by the claimant and not because of the driver of truck bearing Registration No. MH-09/Q-5118. Further it was contended that his vehicle is validly insured with respondent No.2 and hence, he is not liable to pay compensation. The owner and insurer of motorcycle are not made as parties to the petition. Hence, petition is bad for non-joinder of necessary parties. Hence, prayed for dismissal of the petition.

7. Respondent No.2 filed its written statement wherein it took contention that the driver of the truck was not having a valid and effective driving license at the time of accident. Further, the owner has not fulfilled the requirement of Rule 3 of Central Motor Vehicles Rules, 1989. The truck in question was not having a fitness certificate. Hence, there is a breach of policy conditions and thus, it is not liable to pay compensation.

8. On behalf of claimant, claimant was examined as PW1, apart from examining two doctors as PW.2 and PW.3, and marking Exs.P.1 to P.16 before the Tribunal. On behalf of respondents, no oral evidence is let in, except marking Exs.R.1 to R.3.

9. After recording evidence of both sides and hearing arguments of both sides, the Tribunal came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the truck bearing Registration No.MH.09/Q-5118 and that it is validly insured with respondent No. 2 and thus saddled the liability on respondent No. 2.

10. Not satisfied with the compensation awarded, the claimant has preferred the appeal, and challenging the percentage of disability taken by the Tribunal the insurer has preferred the appeal.

11. Heard arguments of both sides.

12. Learned counsel for appellant Kumari Vinaya Kuppellur for Sri.N.R.Kuppelur would submit that as per the disability certificate, the di