NEW INDIA ASSURANCE COMPANY LIMITED Vs. GOVINDARAJU

JUDGEMENT

(1.) M. F. A. NO. 12852/06 is filed by the Insurance Company challenging the quantum and also the liability. M. F. A. No. 13192/06 is filed by the claimant seeking enhancement of the compensation awarded in M. V. C. No. 1481/06 by the Addl. M. A. C. T. (SCCH-6), Bangalore dt. 23. 8. 2006.

(2.) IN the circumstances by consent of both the parties these two appeals are heard together.

(3.) ON 12. 2. 2006 at about 5. 00 p. m. the claimant was crossing bangalore - Mysore Road in front of Gurushri Bar and Restaurant, kengeri. At that point of time, the driver of motor cycle bearing no. KA41 E 3109 driving the same in a rash and negligent manner dashed against the petitioner, due to which he sustained grievous injuries. He was immediately shifted to Sahana Hospital, Kengeri and thereafter he was shifted to Victoria Hospital and again admitted to mathru nursing home. According to the claimant, he has spent sufficient amount towards medical expenses and that due to the accident he has become permanently disabled and unable to discharge his duties as loader and unloader. The claimant was aged about 30 years on the date of the accident getting an income of Rs. 4,500/- per month. The claim was resisted both by the owner and the Insurance Company. According to them, the accident did not occur due to the rash and negligent driving of the driver of the motor cycle and it was due to the negligence on the part of the claimant since he was crossing the road without observing the traffic rules. It was contested by the owner and insurance Company contending that there was no negligence on the part of the driver of the vehicle and it was solely due to the negligence on the part of the claimant in crossing the busy road in a negligent manner. After examination-in-Chief of the claimant was over, the application under Section 170 of the M. V. Act was filed by the insurance Company seeking permission of the Court to defend the case on all grounds which are available to the insurer against whom the claim has been made. The Tribunal rejected the application of the insurance Company on 17. 7. 2006 on the ground that the owner of the vehicle is contesting the case and is cross-examining the claimant. After completion of evidence of the claimant, one Dr. Kishore Kumar was examined as PW2. When the case was posted for cross-examination of PW2, since the counsel for the owner was not present, permission was granted to the Insurance Company to cross-examine pw2. On behalf of the Insurance Company one Vinayakumar was examined as RW1. The Tribunal after considering the evidence lead-in by the parties held that the petitioner has proved that the accident occurred on 12. 2. 2006 at about 5. 00 p. m. in front of Gurushri Bar and Restaurant, Kengeri, due to rash and negligent driving on the part of the rider of the motor cycle and also awarded compensation of rs. 3,38,074/- under different heads along with interest at 6% p. a. This Judgment and award is called in question by the Insurance company on the ground that the Tribunal has committed a serious error in fixing the liability on the Insurance Company by holding that the accident occurred due to rash and negligent driving of the rider of the motor cycle.