The National Insurance Co Ltd vs Girish S/O Thaniyappa on 30 November, 2010

MFA No.8602/2008 is filed by the appellant._:=i’r1snranee

Company and MFA No.9586/2008 is filed by’_t’he_:’:clai.rrian_f

injured challenging the jtidgmeriti

24/5/2008 passed in MVC No.17:-3-“Z/2OlC)AE3_lon t.11c:”lv’f3.i:e:4_ofi:l1eiIii’.

Additional District Judge, ljsakshina

Kannada, Mangalore.

2. By the gjudgrdentiand._axr§%ard, the Tribunal
has granted ~ with interest at
6% per 5 the date of petition till

realisation.

he lea1’neld”e’ouVnse1 for the appellant M» Insurance

Cori1_panjf the Tribunal committed error in not

V’Viaoticingathat ‘accident occurred almost on the middle of

“-«l..fi,’tlae”‘roe1d anclthe rider of the motor cycle had plenty of space

tirwézrtls his left side. He has failed to avoid the accident.

in these (‘iiI’CuI’1″lSl,a11CCS, finding on No.1 with regard

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to negligence on the part of the driver of the lorry is

erroneous. The decisions of t.he Apex Court in the eas_e’s”of

Miriu I-3.Mehta & Another V/s Balakrishna

Nayara & Another, reported in AIR 1:9″i”‘?*–SC it

Irisuranee Company Ltd, V/ s vi\/ieeria

reported in 2007 (2) TAC 417 an’d_j’IV£L1nieip.a1 of

Greater Bombay V / s Shri La2gInar1t’I’}’reiif’§<zfiPiriother;"ere1dorted in
2004 (1) TAC 3(SC) are relevarzt Considering

issue No.1 with rega1"'dto ne_g1i;ge1ice.. V' V

4. It the Tribunal was
required contaents of Mahazar which
would c1eariyindiCate– is straight without curves
and either ..9i_des4″”the roadisthere exists Kaehha road t.o a
Iiiivlkii[f{}u”{;I§:€}{:E.t31″1t,A.Of 5xfeet–*«and that itself would clearly indicate

tha-t. the ‘rx:i’o-i_or<:ye1e had 3 feet space towards left side

and no r'easoI1sf–are"assigned by the rider of the motor cycle to

explain 'eould not take the vehicie towards left hand

._"side_before"oeCur1'eI1ee of the a(:eident:, and the damages

if
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caused to both the vehicles which would speak volume___with

regard to contributory negligence on the part of the..ride.r'~~of

the motor eycle. The right side bumper of

damaged and entire front portiongof «the Ru

damaged.

5. It is further submitted thellrfiatelrjiallivavailable
on record was sufficient to come to a
conclusion that ther_e-vihras on the part.
of the rider of that there exists
limb dlSabi1l.§.y,Ql!’.f%:5;ii}3 ;,:_to’ The whole body
disability ‘– dividing particular limb

disability by three.,It done, the whole body disability

is-hould l’fZ53’:=..__%1.¥1.d not 25 % as decided by the doctor

and Tribunal.

6.3., It ‘1s,A«i'”1irt.her submitted that, there is no material to

prtiye ,and’* substantiate reduction of income of the 181

resptiiident owing to injuries sustained in the accident.. What.

is r’et;_11ired to be proved was that owing to injuries sustairied

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in the accident, the 15* respondent. being a businessman has

lost his income out. of business. No such ai:t.enipt is madeaiid

no such document is produced. Under these circ:um’Stari’cesA,

assuming that. there is loss of earning capacity t,o–‘a_.11 extent V’

25% is erroneous. Hence, it. is sL1i)rriitt;ed’..tihat_:’tft_1e’totai3

compensation “x”.2,75,000/- towards

required to reduced by 50%.

7. The learned submitted
that as per the evidence was not in a
“position to move of 11/2 year.

However, ‘that nature of injuries
sustained theu”i1j1jd1,:reVci_is.._not’}abie to do work atleast for a
period oi’5:,6r _rn_oi1ths’;–» .71fh_e:’efore, for six months period the

injured”ioist:,1iis”iincome. The T 1’ib’t1r121I has rightly considered

at 25%. Hence, there is no iilegality

__~–._c4oir1rnittecithe Tribunal. Hence, it is subrnitted to dismiss

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8. The claimant has also filed an a.ppea1__ for

enhancement. of compensation and the wound eert.ific:ja’te_”3{I”id

also by looking it photographs, the enlaaiicemerit’ ”
towards pain and suffering is requiredto«be5_4en_hant;:ed.~.f};’hle.,
eompensaiiion has not been awarded “towards food”

nourishment and towards loss of”-income durlingxthe laid up V’

period another ?.48,000/ ~ ,is~.1jequired ll:Vi’e..enhan’e*et’l’.l

9. I have heard the’ the learned
Counsel for Counsel for the

respondents.

10. CA)’1:1_the of both the learned Counsels.
I have gone through”the;§é1d§ment and award passed by the
found the appellant is not examined the

driver and further the charge sheet has not been

filed agaé.y1s€;_”t’l1el”‘driver of the lorry. Hence. the ground taken
H appeil-ant — Insurance Company for contrary negligence

lri.e’reb§,,*A’rejected.

” ~ .(:{;_~,,§\s:x;_ “:

‘1. 1. The €3V’iCl€I’1(‘.€ of the cloetor reveals that the
disability to the right leg is 38% and to the whole body it is

25%. lf that is divided by ‘3’ it Comes to 12.5%. That ineans

the compensation is to be reduced by 50% is the

of the insurance Company. But that eaiiriot–.b:eu_aeee.pted’

ttonsidernig the nature of the i11ju1°y:=__and.et}’1e:_irnp2ei;»those.’

injuries have on the (:laime111t…*T-he proved. i11.C’o:ne_V_of_V§thle

petitioner as per l31x.P5’7\ P58 and is and
the multiplier applicable age is ’18. But

multiplier 17 is adopted whi{7i’1’»isfe1n–error..”_The”a.nnuaI income

of the petitioner”edinesilfefo = $97. 248/- out of
the said income v1/3Vl”»’._JlSfi’C§§VCl”I.1.(if€d towards his personal
expenses the I’es_nlt..anti._figui’e::_l’.Wot11cl be 364,832/~. Aetiially

in.—fcpln ease””«’oneM.vthird deduction is impressible.

§ PG”‘i*’~ NM-Co-11siAd’e.ijir1;g t.l:1is.féi«nd the fact that only ?25,000/- is awarded

‘:3 “”5:Ej»’~’.?d’ the “en’_m;m;ed by another $25,000/M. In View of the
*3 ‘r”*~:¢?i0~£,»z.i»…..» ‘ ‘ 1. <

V'&"' C""""*3'E1b('s\r(t. t.lie "–eo1'21"pensat.i()n towards disabilities would be
_.'§3""!~_.-5_.;}’«.p_.4 *~ ”

_ , 25/100 X 18 W 12,91,744/~. The same has been

“.4”..g1\v.3’:’d€:’t”l it as 2Ii§f'(‘1lI’}Sl. ?’.2.:)E5.000/– towards sustained

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pem1a1″1em’ disability. In respect of the compeusatioil awardeci
by the ‘I”‘ri’0m1a} on the 0t1’161′ heads remains affirmed.

Acco1’di1’1g1y, the appeal of the ciaimant, stands partly 211}C$=i=*fé.d.

Amount. in dtzposit: be TI”d11SI1’1iU’.€d 1.0 MACT.__-‘Q. ‘

% %JUDGE7 fi

Akb'”‘*