B.S. PRASAD S/O. SRI B. SUBRAMANYA Vs. S. SHANKARANARAYANA UDUPA S/O. LATE V. VIGNESHWARA UDUPA AND THE UNITED INDIA INSURANCE CO. LTD.

JUDGEMENT

(1.) THESE two appeals arise out of the very same impugned judgment and award dated 08.11.2005 passed in MVC Nos. 294/1999 on the file of the Additional Civil Judge (Sr. Dn) and Additional Motor Accidents Claims Tribunal, Shimoga, (hereinafter referred to as Tribunal for brevity). The Tribunal by its impugned judgment and award, awarded a sum of Rs. 88,000/ - with interest at 8% p.a. as against the claim made by the claimant for a sum of Rs. 3,88,500/ -, on account of injuries sustained in the road traffic accident. The Insurance Company has contended that fastened liability on the insurer and awarding excessive compensation is not sustainable under law. Whereas, the claimant has contended that the quantum of compensation awarded by the Tribunal is required to be enhanced. In view of the same, both Insurance Company and the claimant have filed these two appeals.

(2.) THE brief facte of the case are: The claimant -Respondent No. 1 herein claims that he was aged about 28 years and was practicing Advocate at Shimoga Bar Counsel. He was hale and healthy prior to the accident and was earning income of Rs. 2,000/ - per month. That, on 2.02.1999, when the claimant -1st Respondent was proceeding towards Karagadi village from his house in Haniya in the motor cycle of his brother bearing No. MES. 864 along with a pillion rider, one Raghavendra H.N., on the left side of the road in a normal speed following the traffic rules and regulations, near Karanagiri Temple culvert bridge, a Kinetic Honda Scooter bearing Registration No. KA. 15/3608 ridden by 1st Respondent in a rash and negligent manner came in high speed from opposite direction completely on a wrong side i.e., to right side of the road. On account of which, he lost control over the vehicle while negotiating that bend of the road. In that process, the vehicle came and hit the claimant's motor cycle touching the crash guard and due to this impact, the claimant was thrown out of his vehicle and fell on the left side of the road hitting against a road side guard stone due to which he suffered injuries, on his face and hand, also several bleeding injuries to the right eye region and he felt fainted with severe pain on the hit parts. Thereafter, he had been admitted to the hospital for a period of 7 days as an inpatient. Thereafter, he has taken treatment for a period of 7 to 8 months as an outpatient and also taken bed rest during the treatment period. He has examined Dr. Krishna Rao and Dr. Anil George as P.W. 2 and P.W. 3. As per the evidence of Dr. Anil George, after examining the claimant he found his conjuntival haemorrhage and there was a laceration of upper right eye lid and laceration of right side cheek 2 x 1 cm and tissue loss over chill, his right circum edima was swelling and he was found with depressed right molar prominence and there was tenderness of right infra and lateral orbital margin. On account of injuries sustained in the road traffic accident, the claimant could not practice for a period of 7 to 8 months. Taking all these relevant aspects into consideration, the claimant was constrained to file a claim petition under Section 166 of MV Act, 1988. The claim petition filed by the claimant came up for consideration before the Tribunal, and the Tribunal in turn after perusal of the oral and documentary evidence available on file allowed the claim petition in part, awarding a sum of Rs. 88,000/ - with interest at 8% per annum from the date of petition till the date of actual deposit. Being aggrieved by the impugned judgment and award passed by the Tribunal, the Insurance Company and the claimant both have filed these two appeals.

(3.) AS against this, Sri N.S. Bhat, learned Counsel appearing for the claimant at the outset submits that the submission of the learned Counsel appearing for the Appellant -Insurance Company cannot be sustained under law, To substantiate his submission, he relied upon the judgment of this Court in the case of MFA. No. 11677/2005 in the case of Sri Zameer Ahamed v. Sri B.R.N. Narayana Shetty disposed of on 30.09.2010, wherein this Court relying upon the judgment of the pex Court in MFA No. 6052/2O03 in the case of National Insurance Co., Ltd. v. Smt. Bhadramma and Ors. and also in the case of Oriental Insurance Co., Ltd. v. Dharam Chand and Ors. reported in Civil Appeal No. 5204/2003, wherein it is held that the Insurance must be deemed to have commenced from the time of the accident or four hours later when the vehicle met with the accident and the owner must be deemed to have been covered by the insurance policy, observed that the insurer cannot postpone the assumption of liability after receipt of premium. Therefore, he submits that there is no substance or force in the submission made by the learned Counsel appearing for the Appellant -Insurance Company. Further, he submits that the quantum of compensation awarded by the Tribunal towards pain and suffering and loss of income during laid up period is on the lower side and the same is liable to be enhanced.