MALLAPPA Vs. BABU

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 23.01.2007 at about 2 p.m. in front of Petrol Bunk, situated at Kempanayakanahalli on Bannerghatta Main Road involving the Lorry bearing Regn. No.MH-12/R-9538, owned by the first respondent and insured with the second respondent at the relevant point of time. In the impugned accident he sustained severe injuries comprising of fractures to his right leg and left hand for which he took treatment in the hospital for about 22 days. 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 respondents who are the owner and insurer appeared through their respective counsels and contested the claim of the claimant. The first respondent-owner while admitting the lorry involved in the accident as belonging to him contended that the accident has not taken place on account of the fault of the driver of his lorry. His driver did possess valid and effective DL to drive the vehicle at the time of accident and he had insured his vehicle as on the date of the accident with the second respondent-insurer. If for any reason he is held liable to pay any compensation, the same be saddled on the second respondent-insurer. The second respondent insurer contesting the claim of the claimant, contended that the accident in question has not taken place on account of the fault of the driver of the offending lorry. They further contended that the driver of the lorry 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 further contended that the accident has taken place on account of the negligence of the claimant himself in driving his autorickshaw and in the alternative, they also contended that he has contributed to the accident. Therefore, the accident in question has taken place on account of the contributory negligence of the drivers of both the vehicle. They also denied all the averments made by the claimant in his petition. In sum and substance, they contended that as the accident has not taken place on account of the fault of the driver of the offending lorry, they are not liable to pay any compensation and accordingly, sought for dismissal of the petition as against them. On the basis of the above pleadings the Tribunal framed in all four 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 13 documents which came to be marked as Exs.P1-13. On behalf of the respondents, they did not lead any oral evidence or got marked 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 fault of the driver of the offending lorry and accordingly, the claimant has established actionable negligence. Further, the Tribunal looking to the evidence of the claimant, the doctor-PW2 who has examined him and the documents placed on record awarded total compensation of Rs.1,80,000/- 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.) TAKING the rival submissions into consideration and the papers that are made available, the point that arises for my consideration is: 'Whether the appellant-claimant has made out a case for enhancement of the compensation?'