Karnataka High Court
The Divisional Manager vs Shri Maruti Irappa Vadiyar on 14 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V. HOSMANI
M.F.A.NO.23790/2009 (MV)
C/W
M.F.A.NO.22113/2010 (MV - I)
In MFA No.23790/2009
BETWEEN:
MARUTI IRAPPA VADIYAR
AGE 49 YEARS, OCC: GOUNDI
R/O KURLI, TQ: CHIKKODI
DIST: BELGAUM.
...APPELLANT
(BY SRI HARISH S. MAIGUR, ADVOCATE.)
AND:
1. SRI DAGADU VISHNU MIRAJE
AGE MAJOR OCC: BUSINESS
R/O KALAMBE TARF THANE
TQ: KARVEER DIST: KOLHAPUR.
2. THE DIVISIONAL MANAGER
THE NATIONAL INSURNCE CO LTD.,
DIVISIONAL OFFICE AT
RAMDEV GALLI, BELGAUM.
...RESPONDENTS
(BY SRI S.K. KAYAKANATH, ADVOCATE FOR R2;
NOTICE HELD SUFFICIENT FOR R1)
2
THIS MISCELLANEOUS FIRST APPEAL No.23790/2009 IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 28.08.2009 PASSED IN MVC
NO.1057/2005 ON THE FILE OF PRESIDING OFFICE, FAST TRACK
COURT-I AND MEMBER, ADDL. MACT, BELGAUM, AT BELGAUM
PARTLY ALLOWING THE COMPENSATION FOR THE CLAIM PETITION
AND SEEKING ENHANCEMENT OF COMPENSATION.
In MFA No.22113/2010
BETWEEN:
THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD,
DIVISIONAL OFFICE, RAMDEV GALLI,
BELGAUM THROUGH THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
SUJATHA COMPLEX, P.B.ROAD, HUBLI.
...APPELLANT
(BY SRI S K KAYAKAMATH, ADVOCATE)
AND:
1. SRI MARUTI IRAPPA VADIYAR
AGE: 45 YEARS, OCC:GOUNDI
R/O: KURLI, TQ: CHIKKODI
DIST: BELGAUM.
2. SRI DAGADU VISHNU MIRAJE
AGE: MAJOR, OCC: BUSINESS
R/O: KALAMBE TARF THANE
TQ: KARVEER, DIST: KOLHAPUR
(OWNER OF MARUTI CAR
BEARING NO.MH/09/S-2631)
...RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R1;
NOTICE SERVED FOR R2)
3
THIS MISCELLANEOUS FIRST APPEAL No.22113/2010 IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST
THE JUDGMENT AND AWARD DATED 28.08.2009 PASSED IN MVC
NO.1057 /2005 ON THE FILE OF THE PRESIDING OFFICER FAST
TRACT COURT-I AND MEMBER, ADDITIONAL M.A.C.T. BELGAUM,
AWARDING THE COMPENSATION OF RS.54,000/- WITH INTEREST AT
THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL ITS
DEPOSIT.
THESE APPEALS COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and award dated 28.08.2005,
passed by Presiding Officer, Fast Track Court - I and Member,
Additional MACT, Belgaum, (hereinafter referred to as 'Tribunal')
in MVC No.1057/2005.
2. Brief facts as stated are that on 14.02.2005, claimant
was proceeding in Maruti Car bearing registration No.MH-09/S-
2631 from MIDC Shiroli to Kolhapur. When car was stopped by
the side of road, an unknown truck came from opposite side
and dashed against car, due to which claimant sustained
injuries. Claiming compensation for the same he filed claim
petition against owner and insurer of car under Section 163A of
the Motor Vehicles Act. (Hereinafter referred to as 'MV Act').
3. Claim petition was opposed by insurer contending that
no accident as alleged by claimant had occurred. Based on
pleadings and evidence on record, tribunal framed issues and
answered in favour of claimant by assessing compensation at
Rs.54,000/- holding respondents no.1 and 2 liable to pay
compensation with interest at 6% per annum.
4. Not satisfied with quantum of compensation, claimant
hasfiled MFA No.23790/2009; whereas insurer has filed MFA
No.22113/2010.
5. Sri Harish S Maigur, learned counsel for appellant-
claimant submitted that at the time of accidentwhen claimant
had got down from car and was proceeding to attend natures
call, an unknown truck dashed against car and in turn the car
dashed against claimant. Therefore, claimant would be a third
party, sought for dismissal of insurer's appeal.
6. It was further submitted that claimant sustained
fracture of frontal bone and bilateral fracture of maxilla. Even
though Doctor assessed disability at 35%, tribunal has not
awarded compensation towards 'future loss of income.'
7. Sri S.K. Kayakamath, learned counsel for appellant-
insurer submitted that vehicle was issued with 'Act liability only
policy'. Admittedly, on date of accident, claimant was an inmate
of car. As liability of insurer would not extend to inmates of a
private car, the tribunal erred in fastening liability upon insurer.
In support of his submission he relied on the decision of the
Hon'ble Supreme Court in the case of National Insurance Co,
Ltd., Vs. Balakrishnan & another reported in (2013) 1 SCC
731.
8. Heard learned counsel on both side and perused
material on record.
9. From the above submission, points that arise for
consideration in these appeals are:
i) Whether tribunal was justified in
holding that insurer is liable to pay
compensation?
ii) Whether claimant is entitled for
enhancement of compensation as sought
for?
Re.POINT NO.1:
10. From Ex.P.2 information given by inmate of car,
claimant was inside the car at the time of accident. Based on
such information, ExP.1 is registered and charge sheet-Ex.P.4
was filed. Said documents are produced by claimant himself.
There is no explanation about same. These documents establish
that claimant was inside the car. Hence, he cannot be treated as
a third party. Liability of insurer would not cover risk of inmate
of a private car under 'Act liability only policy'. Even 'pay and
recover' would not be arise in view of law laid down in
Balakrishnan's case (supra). Therefore, it is held that insurer
would not liable to pay compensation. Point no.1 is answered in
negative.
POINT NO.2 :
11. Though claimant has sought enhancement of
compensation towards 'future loss of income'. Admittedly,
injuries sustained are fracture of frontal bone and fracture of
maxilla. Claimant is stated to be working as mason. Injuries
sustained would not in normal circumstances lead to 'loss of
earning capacity'. Tribunal has rightly denied compensation to
claimant under said head. Hence no interference is called for.
Point no.no.2 for consideration is answered in negative.
12. In the result, I pass following:
i. MFA No.23790/2009 is dismissed. It is
clarified that claimant is at liberty to
proceed against respondent no.1-owner
for the award passed by tribunal.
ii. MFA No.22113/2010 is allowed. Liability
of appellant-insurer is set aside.
iii. Amount in deposit is ordered to be
refunded to appellant.
In view of disposal of appeals, pending
interlocutory applications, if any, do not survive
for consideration.
Sd/-
JUDGE
Psg*
