Karnataka High Court
Ganesh S/O Baba Nagatilak vs The Proprietor/Managing Director And ... on 14 February, 2025
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MFA No. 200564 of 2020
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200564 OF 2020 (MV-I)
BETWEEN:
GANESH S/O BABA NAGATILAK,
AGE: 45 YEARS, OCC: AGRICULTURE AND COOLIE,
R/O EARLIER AT SUSTE, TQ. PANDHARPUR,
NOW RESIDING AT HONAWAD,
TQ. & DIST. VIJAYAPURA-586 101.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. THE PROPRIETOR/MANAGING DIRECTOR,
MAHINDRA AND MAHINDRA LIMITED,
Digitally signed PLOT NO.1, PHASE-IV, MIDC, CHAKAN,
by
LUCYGRACE INDUSTRIAL AREA, CHAKAN,
Location: HIGH DIST. PUNE-410 501,
COURT OF
KARNATAKA (OWNER OF THE DUMPER LORRY BEARING
REG. NO.MH-14/TC-858 TEMPO).
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SANGAM BUILDING, S.S. FRONT ROAD,
VIJAYAPUR-586 101.
...RESPONDENTS
(BY SRI. J. AUGUSTIN, ADV. FOR R2;
V/O DTD. 21.01.2021, NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 200564 of 2020
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED
JUDGMENT AND AWARD DATED 11.11.2019 PASSED BY THE
II ADDL. SENIOR CIVIL JUDGE AND MACT-VII AT VIJAYAPURA
IN MVC NO.1520/2015.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
This appeal by the petitioner is directed against the
judgment and award dated 11.11.2019 passed in MVC
No.1520/2015 by the II Additional Senior Civil Judge and
MACT-VII, Vijayapura (hereinafter referred to as 'the
Tribunal' for brevity), seeking enhancement of the
compensation.
2. The factual matrix of the case is that, on
24.05.2015, the petitioner was going on his motorcycle
near Khandalli Patil on Solapur to Pune National Highway.
At that time, a dumper lorry bearing No.MH-14/TC-858
came with high speed and collided with the motorcycle of
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the petitioner and caused the accident, due to which, the
petitioner suffered fracture of right orbital root, right
frontal bone, frontal sinus, ethmoid roof, sinus, fracture of
right frontal extra dural region and fracture of right
shoulder and hand. He was shifted to Dr. V.M. Medical
College and General Hospital at Solapur and later he was
shifted to SP Institute of Neuro Science Hospital at
Solapur. A criminal case was registered by Mohol Police
Station in Crime No.184/2015. The petitioner contended
that he was aged 40 years and was an agriculturist
earning Rs.9,000 per month and due to the accidental
injuries, he has suffered the disability and as such, he is
entitled for just and adequate compensation.
3. Being served with the notice, respondent No.1-
Company remained exparte and respondent No.2-
Insurance Company appeared and filed the written
statement contending that the alleged accident is fake and
there was no such accident and the vehicle was not
insured with it, the accident has occurred due to the
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negligence of the petitioner himself. It also contended that
the driver of the dumper lorry was not having a valid
driving license and the policy covered only a geographical
area of 80 to 120 kms. and therefore, the terms and
conditions of the policy are violated. Hence, sought for
absolving the liability.
4. On the basis of the above pleadings, the
Tribunal framed appropriate issues and the petitioner was
examined as PW.1 and the Doctor, who assessed the
disability was examined as PW.2. Exs.P1 to P10 were
marked on his behalf. No evidence is adduced on behalf of
the respondents. However, the copy of the insurance
policy was marked as Ex.R1.
5. After hearing the arguments by both sides, the
Tribunal held that the petitioner is entitled for a sum of
Rs.4,39,140/- under different heads and it absolved
respondent No.2-Insurance Company on the ground that
the policy covered a geographical area of 80 to 120 kms.
and therefore, the accident having occurred outside the
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city distance, it is not liable to pay the compensation,
which is as below:
Injury, pain and sufferings Rs.30,000/-
Medical expenses Rs.2,23,140/-
Loss of income due to permanent Rs.96,000/-
physical disability
Food and nourishment Rs.30,000/-
Attendant charges Rs.20,000/-
Conveyance charges Rs.20,000/-
Loss of amenities and future Rs.20,000/-
unhappiness
Total Rs.4,39,140/-
6. Being aggrieved by the same, the petitioner has
approached this Court, seeking enhancement of the
compensation.
7. Arguments of the learned counsel appearing for
the appellant were heard. None have appeared on behalf
of the respondents.
8. The first contention urged by the learned
counsel appearing for the appellant is that, the perusal of
the policy at Ex.R1 would disclose that though the IMT 41
states that the policy covers all the 3rd party risks within a
radius of either 80 or 120 kms., the policy nowhere
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mention that whether it covers 80 kms. or 120 kms.
radius. It is also contended that the policy nowhere states
the geographical city in which the policy covers. Therefore,
it is not clear that from which point the distance of either
80 or 120 kms. are to be covered. Learned counsel also
submits that the vehicle i.e., dumper lorry was moving
from the manufacturing point at Pune to Guntur and
therefore, it was under the "trade road risk policy" with
third party liability only. If the policy covered the transit of
the vehicle from the manufacturing point to the delivery
point at Guntur, the policy could not have stated that it
covers only radius of 80 to 120 kms. Therefore, he
contends that the impugned judgment, which would fasten
liability on respondent No.1 may not be correct. The
second contention urged by him is in respect of the
quantum of compensation. The only contention raised is in
respect of the notional income of the petitioner. He
submits that the Tribunal erred in holding the notional
income of the petitioner at Rs.5,000/- per month, when
the accident had occurred in the year 2015. In his
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submission, he states that the notional income should
have been Rs.8,000/- per month.
9. The perusal of the policy at Ex.R1 would
disclose that it is a Motor Trade (Road Risk) policy and a
premium of Rs.7,140/- was received by the Insurance
Company. Nowhere this policy mentions whether it covers
the radius of 80 kms. or 120 kms. as required under IMT
41. The conditions imposed under IMT 41, which is also
annexed to the policy mention that either 80 or 120 has to
be inserted in the policy document as opted by the insured
and the premium paid accordingly. Therefore, the policy
not mentioning as to the distance for which it covers and
the place where it covers, it has to be construed that the
Insurance Company had issued the policy keeping in mind
the transit of the vehicle from Pune to Guntur. Therefore,
the reasoning adopted by the Tribunal that the vehicle did
not cover the accident, which had occurred beyond 120
kms. from Pune cannot be accepted. It has to be held that
the policy covers the exigencies of the accident that would
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occur between Pune and Guntur. In that view of the
matter, the liability has to be fastened upon the Insurance
Company. Accordingly, respondent No.2-Insurance
Company is held liable to pay the compensation.
10. The next aspect to be considered is, whether
the notional income considered by the Tribunal is proper
or not?
11. The records reveal that the petitioner is unable
to prove the income contended by him. There is absolutely
no documentary evidence, which establish the income of
the petitioner as claimed by him. Therefore, the Tribunal is
justified in adopting the notional income for calculation of
compensation. The guidelines issued by the Karnataka
State Legal Services Authority in respect of the settlement
of the claims arising out of the motor vehicle accidents
before the Lok Adalath prescribes the notional income at
Rs.8,000/- p.m. for the year 2015. In umpteen number of
cases, this Court has held that the said guidelines issued
by the KSLSA are in general conformity with the wages
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fixed under the Minimum Wages Act. Therefore, the
notional income of the petitioner is held to be Rs.8,000/-
p.m.
12. The disability assessed by the Tribunal at 10%
is appears to be correct in view of the testimony of the
PW.2, who has deposed that the disability is 30%. The
injuries are namely, to the face and zygomatic arch.
Therefore, this Court does not find any reason to enhance
the functional disability.
13. Therefore, the compensation under the head of
loss of future income is calculated as: Rs.8,000 x 12 x 16
x 10% = Rs.1,53,600/- by adopting the multiplier of 16.
After deducting a sum of Rs.96,000/- as awarded by the
Tribunal, there shall be an enhancement of Rs.57,600/-.
14. The Tribunal has not awarded any
compensation under the head of loss of income during laid
up period. Therefore, by considering that the petitioner
was unable to resume his work at least for a period of two
months, a sum of Rs.16,000/- is awarded under this head.
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15. The compensation awarded by the Tribunal
under the remaining heads does not call for any
interference by this Court.
16. Hence, there shall be an enhancement of
Rs.73,600/-.
17. In the result, the appeal deserves to be
allowed. Hence, the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and award passed
by the Tribunal is modified.
(iii) The appellant/petitioner is entitled for a sum
of Rs.73,600/- in addition to what has been
awarded by the Tribunal together with
interest at 6% p.a. from the date of petition
till its realization.
(iv) Respondent No.2 - Insurance Company is
directed to deposit the entire compensation
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amount awarded by the Tribunal as well as
by this Court within a period of six weeks
from the date of this order.
(v) Rest of the order passed by the Tribunal
remains unaltered.
Sd/-
(C M JOSHI)
JUDGE
LG
