THAMMAIAH Vs. M MOHAMMAD ALI

JUDGEMENT

(1.) THOUGH this matter is listed for admission, with consent of learned counsels for respective parties, as records have also been received, it is taken up for final disposal.

(2.) THIS appeal is by the claimant seeking for enhancement of compensation in respect of the personal injuries which he has sustained in a motor accident that took place on 1.5.2007 at about 1.45 p.m. near Vijayanagara Bus Stop situated on Hassan-Belur Road at Hassan involving the Tata Indica Car bearing Regn. No.KA-18 M-4735. owned by the first respondent and insured with the second respondent at the relevant point of time. In the impugned accident he sustained grievous injuries comprising of fracture to his right limb for which he took treatment in the hospital for about 23 days during which period he also underwent one surgery. He spent huge money for the treatment of his injuries. Despite the same, he is not completely cured of his injuries. As such, he is unable to carry on his avocation, which has resulted in loss of Income to him. Accordingly, he sought for grant of compensation from the respondents. After service of notice, the first respondent, who is the owner remained absent. Hence he was placed ex parte. The second respondent insurer appeared and contested the claim of the claimant. They contended that the accident in question has not taken place on account of the fault of the driver of the offending car, on the other hand, it was due to the negligence of the rider of the motor cycle in which the claimant was proceeding. They further contended that the driver of the car did not possess valid and effective driving licence to drive the vehicle in question at the time of accident. As such, there is breach of terms and conditions of the policy committed by the owner. They also denied the averments made by the claimant in his petition and further contended that the petition filed by the claimant is bad for non-joinder of necessary parties inasmuch as he has not impleaded the rider, owner and insurer of the motor cycle in which he was proceeding. Accordingly, they contended that they are not liable to pay any compensation and sought for dismissal of the petition as against them. On the basis of the above pleadings the Tribunal framed in all three issues. The claimant in support of his case, got himself examined as PW1 and the doctor who treated him as PW2. He produced in all 12 documents which came to be marked as Exs.P1-12. On behalf of the respondents, the contesting insurer did not lead any oral evidence nor produced any documents in support of their case. The Tribunal on going through the oral and documentary evidence on record held that the accident in question has taken place solely on account of the rash and negligent driving of the offending car by its driver and as such the claimant has established actionable negligence. Further, the Tribunal on going through the evidence of the claimant, the medical officer PW2 who has examined him and the documents placed on record awarded total compensation of Rs. 1,20,660/- with interest at 6% p.a. from the date of the petition till realisation. It further saddled the liability of payment of compensation on the second respondent-insurer. The appellant-claimant being aggrieved by the quantum of compensation is in appeal before this Court.

(3.) PER contra. Learned Counsel appearing for the contesting-insurer supported the impugned judgment and award passed by the Tribunal.