IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF OCTOBER 2010
BEFORE 4 V' U '
THE HON'BLE MRJUSTECE ARALI NAOARAJ V,"
MISCELLANEOUS FIRST APPEAL 'No'.«3535/.20o8{§M_yj~' in
BETWEEN:
The United India Insurance CO. Ltd.}u_' _
Regional Office, No.25, A . -. V
Shankaranarayana Building «. 7
M.Cr.Road - '
Bangalore ~-- 560 001 H A * jv --.
Rep. by its Deputy Manager'. " ' « _ - " .. APPELLANT
(By S1"i.K.N.Sriniv:as_a5I:in'd Advs.)
AND:
1.. Sri. Farooq B;Fét1*OOq 'Khan
S / 0 late Ada1at:hkhar1,V
Aged aboiri .'24ye'ars'*_ ' i
15%: Block, Goiuif Road,
I3.%i3ge;mIii.i_Town """" ~ "
' «.}_<no1ar'1f)1's't:~;.::t.
2. . 'S_1'i.Abdu_lA_jij''Sab
' S/'0 Sab'ar11.ie';Sab
5"! «Old Court Road
Bagepaglli, Koiar Dist. .. RESPONDENTS
Sn1t’.«P.V.Kalpana , Adv. for R1.
Appeal».:a.gainst 1% dismissed vide Order
_ o1:.2z;§.8.2o09)
{‘~_S~”M\–“””‘”
I
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This Miscellaneous First Appeal is filed under Section
173(1) of MV Act against the judgment and award dated
24.3.2008 passed in MVC No.l56/200? on the file of the V11
Addl. Judge, Court of Small Causes. Member Mg./3&CT–3,
metropolitan area, Bangalore, {SCCH.No.3), Awardin_g7.._ a
compensation of Rs.1,50,700/– with interest @ 7.5%g’.f.A._’fro’m
the date of petition till deposit.
This Appeal coming on for admission :tl’i.:e ii
delivered the following:
Jvnomnazh”
This appeal is by the insurer”ofVTem’po bearingl’r€’gisti*ation” V dd
NoJ£A:40–O560, uduch xyas inyofi&x1=ei the ixxfident that
occurred on 12.11.2006 pl Canara Bank
on D.V.G.Road in Bagepalli-‘toivriip The appellant
— insurance this appeal the
correctness oflthe’::..li’i_dgrrentfandtillinraifdlldated 24th March 2008
passed the M.A.C.’I’.-Ill, Bangalore
City {hereinafterireferreldlto ‘Tribunal’ for short).
factuml’oi7~–accident, sustaining of injuries by the
resp.onden’t._ ¥l_”‘clai:f11ant, nature of injury resulting in his
permanent involvement of said Vehicle in the said
‘accident also the fact that the appellant — Insurance
V’ Company ulrlas the insurer of the said vehicle as on the relevant
‘daterofl accident, are all not in dispute.
_….,x:~*°-~'””‘
3. I have heard the arguments of learned Advocates for
both the sides and perused the impugned Judgment and __Award
and also entire material found in the original r€COTdS’O1§7;Etifl.Cd
from the Tribunal.
4. Three grounds on which thejlirnpugned J«u.dgment:l’and
Award is challenged by the appellant – ~.
[i] The Tribunal hoiding
that the driveztiozf thjeh was negligent in
causinggthe said l i
{ii} The in taking 10%
a§=i’ in calculating the loss of
(iii) another error in awarding
interest annum on the total amount of
;,,;Scon1zpensatio*i1′ awarded in favour of the respondent. —
it ‘* _ ”
On careful reading of the averments in the claim
~ «.fi.”,i”petit:ion and the evidence of injured claimant {PW1}, it could be
4’seen’that he has averred in his petition and has also stated in
‘j”‘n.is_..e.xamination–i.n~chief that, while he was on the road as
~-pedestrian, the driver of the said tempo, by driving in a rash and
arm”
.. 4 ..
negligent manner, dashed against him and thus, the driver of
the said vehicle was solely responsible for the accident. He has
denied the suggestion put to him by the learned Counsellor the
insurer that himself was negligent in crossing the
therefore, he was solely responsible for the occurrence
accident. The insurer has not chosen-to”addv.ee ‘evidence in
support of his plea that the said _
negligence or contributory neg1,i4genceA.’on the”?
claimant. RW1, who has been_..e§{aniined on–b,eh.s.lf of the
insurer, was not an eye witr1ess.accitlent.._
8. Further, the .insu§rer”Vhas nlaced reliance on Ex.Rl, the
sketch of sceneolf ljt._rei{eals the road at the place of
accident {was ‘rnnni’ii,<_§'Eae_t:¥We'st' and injured claimant was
crossing the road vfrorn'E'slo3:tli'*…to Vsouth. The place of accident is
'vshownhaltlv the nolithern edge of the road. Since it is not in
Zngdivspute t3ne…_vehicle in question was moving from East to
Wes:;
-3-
his extreme right hand side and dashed against the claimant,
who was about to cross the road. Therefore. I am of the
considered opinion that the positive evidence of the V–i’i”.1_jured
claimant as to the negligence on the part of the diiver
tempo has remained totally unrebutted by the
being so. E do not find any reason to.interfere5_’with”the V
recorded by the Tribunal that the driyer the
solely negligent in causing the said:”ae_cident,_p .
7. PW2 is the Doctor,’.Who&V.eXam*ined. the claimant
for his physical disability’ the disability
certificate. He as a result of
fracture to hip. of pain in the pubic
region, finds it abduction of each hip
joint is restricytedvvby external rotation is restricted by
__l20 thus, the claimant suffers physical imperative to the
v.’v.’.e;){:”[€11l;vl..0f respect of his whole body. Referring to the
fulithler this witness that the x–ray that was taken on
V dd _11.1.2’G08»__’shoyi}ed union of the fracture of pubic rami, learned
:’l.v4.u’co’unsel for the appellant ~«~ insurer strongly contends that the
committed an error in taking permanent disability of
‘theinjured claimant at 10%. Having regard to the nature of the
“union of the fractured bone and other complaints, the Doctor
5.W{“””r”\.,,
_ 5 _
has given evidence and the same has been rightly accepted by
the Tribunai.
8. Further, though the claimant has stated in his evidence
that he was earning Rs.7,000/– per month, the ‘I’rib:u11″.:§ii,Lhas
taken notional income of Rs.3.000/– per month
the loss of future earnings. It has chosenéthe.’ if
the injured was aged about 35 years the of
There is no dispute as to the adoptingfofpthe saici«:._:r11t11ti:p1ier.’Vat
Having regard to the nature of the__iir’ijiu1’ties sus’t«airiAecViV.i§ period of
treatment undergone inpatient, the
percentage of permanent disabiility’; any reason to
interfere with avifarcéiiiigg loss of future
income or.._reduction ‘ofcapacity of the claimant in terms
of the same. ”
9%: ‘iLearneVd”~CVoVuVnsev1 for the appellant — insurer is quite
justified infufstibmitting that the Tribunal committed an error in
awarding –i.nteVrest_–=on the total amount of compensation of
if Rs.1,A5’Q,’7Q’C1/'<i@Af7.5% per annum. Law is well settled that the
– –rate of interest shall be maximum of 6% per annum. Therefore,
deserves to be reduced from 7.5% to 6% per annum.
g'”–«SQ-\””*”””£…«—‘
_ 7 _
For the reasons aforesaid, the present appeal is allowed in
part. While leaving the impugned Judgment and Award
undisturbed, the rate of interest is hereby reduced fronig7.5%
per annum to 6% per annum. Award shall
accordingly. The amount, which is deposited in t.hi.s.”C<Jart;l
be transmitted to the Tribunal coneeri*1e'd.so–l_4as_,l<$tenable.»the
claimant to withdraw the same.
KNM/~