(Prayer: This Miscellaneous First Appeal is filed under Section 173 (1) of the Motor Vehicle Act 1988, praying to modify the judgment and award dated 26.06.2013 passed by Court of I Addl. Senior Civil Judge and CJM and Addl. MACT, Dharwad in MVC No.65/2008, award the compensation as claimed in the claim petition and shift the liability on the 2nd Respondent Insurance Company, in the interest of justice and equity and etc.,.)

CAV Judgment

1. This is an appeal filed by the claimant in MVC No.65/2008 on the file of learned I Additional Senior Civil Judge and CJM and Additional MACT, Dharwad (hereinafter referred as 'the Tribunal'), seeking for enhancement of the compensation and praying to saddle the liability of satisfying the award on the insurer of the offending vehicle.

2. The claimant maintained the petition in MVC No.65/2008 under Section 166 of Motor Vehicles Act, seeking compensation of ₹2,50,000/- from the owner and insurer of the Truck bearing No.KA-25-8024. The case of the claimant is that on 17.04.2007 when she was returning to her native place in Truck bearing No.KA-25-8024 at about 07.00 p.m., near Tattihalli Canal of Devadigahalli on Itagi Road, its driver lost control over the vehicle and caused accident and thereby, she sustained grievous injuries.

3. Initially, the claimant had impleaded United India Insurance Company Limited as Respondent No.2 on the ground that they are the insurer of the offending vehicle. Later, the claimant impleaded the New India Assurance Company Limited as Respondent No.3 on the ground that they are the insurer of the said vehicle.

4. On service of the notice, Respondent No.3 appeared before the Tribunal and contested the petition. On completion of the pleading, the Tribunal framed issues, held enquiry in the matter and decided the claim petition on merits of the case. The Tribunal held that the claimant proved having met with an accident due to actionable negligence on the part of the driver of the truck in question. The Tribunal further held that the claimant was an unauthorized passenger in the offending vehicle and as such, the insurer is not liable to pay any compensation. Accordingly, the Tribunal allowed the claim petition in part and directed the owner of the truck to pay compensation of Rs.52,300/- to the claimant together with interest at the rate of 8% p.a., from the date of petition till its deposit. Being aggrieved by the said award, the claimant has come up with this appeal praying to award the compensation as claimed in the claim petition as well as to fasten the liability on the insurer of the offending vehicle of satisfying the award.

5. Sri P. G. Chikkanaragund, learned Counsel for the Claimant vehemently submitted that the Tribunal has failed to award just and reasonable compensation in the case by taking note of the injuries suffered by the claimant and the physical disability on account of such injuries. He submitted that the Tribunal has not taken note of the period of treatment of the claimant as an inpatient as well as follow up treatment while awarding the compensation. As such, he contended that the compensation awarded by the Tribunal is on lower side which requires modification and enhancement as claimed in the claim petition. He further submitted that the offending vehicle was duly insured as on the date of the accident and therefore, insurer is liable to satisfy the award.

6. Per contra, Sri N. R Kuppelur, learned Counsel for Insurer supported the finding recorded by the Tribunal and in particular, the conclusion of the Tribunal of absolving the insurance company from its liability to pay the compensation amount on the ground that the claimant was an unauthorized passenger in a goods vehicle.

7. Though the notice of this appeal served on the owner of the truck/Respondent No.1, he remained absent before this Court.

8. Having heard the arguments addressed on both sides, the following question arises for the consideration of this Court, namely, whether the claimant has made out valid grounds to justify enhancement of the compensation and to fasten the liability of satisfying the award on the insurer of the offending vehicle.

9. It is the definite case of the claimant that on 17.04.2007 at about 07.00 p.m., when she was traveling in truck bearing No.KA-25-8024 to go to her native place, near Tattihalli Canal of Devadigahalli on Itagi Road, the said vehicle turned turtle and thereby she sustained grievous injuries. The Tribunal, based on the testimony of the claimant and the police papers produced in support of such testimony held that the driver of the truck was responsible for the accident. Though the notice of the claim petition had been served on him, the owner of the truck remained absent before the Tribunal and did not contest the case. Thereby, there was no rebuttal to the evidence placed on record by the claimant in support of her case.

10. Admittedly, the offending vehicle was a goods vehicle, and the claimant was travelling in the said vehicle to go to her native place, in connection with attending a marriage. It thereby stands clear that she was an unauthorized passenger in the offending vehicle. In view of the same, the Tribunal rightly held that the insurer is not liable to satisfy the award.

11. The wound certificate marked at Ex.P3 goes to show that the claimant had suffered fracture of right clavicle, fracture of forearm colles' and a lacerated wound. Ex.P7 goes to show that she underwent treatment at Nimra Hospital, Gokak as an inpatient from 09.05.2007 to 20.05.2007. The Tribunal awarded a sum of ₹20,000/- towards pain and sufferings, ₹9,000/- under the head of loss of income during laid up period and ₹3,000/- under incidental expenses. Taking into consideration the nature of injuries sustained by the claimant and probable period of treatment including follow up treatment, this Court holds that the compensation awarded by the Tribunal on these heads is on lower side. Hence, it is held that the claimant is entitled for a sum of ₹40,000/- under the head of pain and sufferings, a sum of ₹15,000/- under the head of loss of income during laid up period and a sum of ₹10,000/- under incidental charges.

12. The Tribunal, based on the document produced at Ex.P8 awarded a sum of ₹10,300/- under the medical expenses. Ex.P9 goes to show that the claimant has spent another sum of ₹4,960/- during further treatment. The Tribunal disallowed the amount spent under Ex.P9 with an observation that it is written on a prescription paper. No doubt, Ex.P9 is a document, written on a prescription paper. In the considered view of this Court the said aspect alone cannot be a ground to reject the claim of the claimant. The materials on record do not create any suspicion regarding its genuineness. As such, it is held that the claimant is entitled for compensation of ₹15,260/- under the head of medical expenses.

13. The Tribunal awarded a sum of ₹10,000/- under the head of loss of amenities. The claimant has not adduced any evidence before the Tribunal to show that she is suffering from any permanent disability on account of the injuries sustained in the accident. As such, this Court does not find any reason to modify the compensation awarded under this head. For the foregoing reasons, point for consideration is answered partly in the affirmative.

14. For the reasons stated above, this Court holds that the claimant is entitled for a total compensation of ₹90,260/- in place of ₹52,300/- awarded by the Tribunal under the following heads: