Karnataka High Court
Shivaji @ Shivalal S/O Neelakanth ... vs Rajendra S/O Mahaveer Padhye And Anr on 20 February, 2025
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MFA No. 200174 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISC. FIRST APPEAL NO.200174 OF 2022 (MV-I)
BETWEEN:
SHIVAJI @ SHIVALAL S/O NEELAKANTH RATHOD,
AGE: 39 YEARS, OCC: DRIVER,
R/O: KUMATAGI, POST: KAGGOD,
TALUK AND DIST. VIJAYAPURA-586 127.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. RAJENDRA S/O MAHAVEER PADHYE,
AGE: 40 YEARS, OCC: BUSINESS,
R/O: HERIE, TQ. HATKANGALE,
Digitally signed
DIST. KOLHAPUR-416 109,
by LUCYGRACE (OWNER OF MOTORCYCLE NO.MH.09/CD-1360).
Location: HIGH
COURT OF
KARNATAKA
2. THE BRANCH MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
GURUKUL ROAD, HANAMASHETTI BUILDING,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2;
V/O DTD. 08.02.2022, NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 200174 of 2022
THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND AWARD DATED 21.09.2021
PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE
AND MACT.NO.XIII, VIJAYAPUR IN MVC.NO.1782/2016 AND
PLEASED TO ALLOW THE CLAIM PETITION.
THIS APPEAL COMING ON FOR ADMISSION, 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)
Heard the learned counsel for the appellant and the
respondent No.2.
02. Though, this appeal is slated for admission, the
same is taken up for disposal with consent of learned
counsel for both the parties.
03. Being aggrieved by the dismissal of
MVC.No.1782/2016 by the IV Additional District and
Sessions Judge, and Member, MACT, Vijayapura dated
21.09.2021 the petitioner is before this Court in appeal.
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04. The petitioner contented that on 18.01.2013
while he was proceeding by walk near Maalbhag cross on
Kolhapur - Sangli road in Maharashtra, the motorcycle
bearing Reg.No.MH-09-CD-1360 came from opposite
direction and dashed against him causing fracture of his
left tibia and fibula and other injuries to him. The
petitioner was taken to hospital at Kolhapur and he
underwent treatment spending huge amount. He being
aged about 32 years at the time of the accident and
earning Rs.9,000/- per month by working as a driver, he is
entitled for compensation.
05. In pursuance to the notice issued, the
respondents No.1 and 2 appeared and they denied the
age, income and occupation of the petitioner. They
contended that the compensation claimed is highly
exorbitant, imaginary and untenable in law. They also
contended that there was no negligence on the part of the
rider of the motorcycle, but it was the petitioner who
himself was proceeding under the influence of alcohol, lost
his balance, fell down and sustained injuries. Therefore,
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the respondents denied paying any compensation. Further,
the respondent No.1 also contended that his vehicle was
insured by respondent No.2 and liability if any has to be
fastened upon the respondent No.2. The respondent No.2
- insurance company contended that there were violation
of terms and conditions of the policy. As such, it is not
liable to pay the compensation.
06. On the basis of contentions, the Tribunal
framed the following issues:-
I. Whether petitioner proves that, on 08.01.2023 at
about 07.30 p.m. when he was proceeding by walk
by the side of the road, near Maalbhag cross, on
Kolhapur to Sangli road, Herale village, Tq:
Hatkangale, Dist: Kolhapur (Maharashtra State), at
that time, the rider of Motorcycle bearing Reg.no.MH-
09-CD-1360 came from his opposite direction in a
rash and negligent manner and dashed to the
petitioner, due to which, he sustained injuries shown
in injury certificate / claim petition.?
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II. Whether petitioner proves that, this Court has got
territorial jurisdiction to entertain the petition.?
III. Whether the respondent No.2 - insurance proves
that, the rider of motorcycle bearing Reg.No.MH-09-
CD-1360 was not holding valid and effective Driving
License on the date and time of accident.?
IV. Whether the petitioner is entitled for compensation
as claimed.? If so, to what extent.?
V. What order or award.?
07. It is pertinent to note that there was no such
contention raised either by respondent No.1 or respondent
No.2 regarding the territorial jurisdiction of the Tribunal.
The issue No.2 framed by the Tribunal appears to be a su-
moto initiative of the Tribunal.
08. The petitioner was examined as PW.1 and one
witness was examined as PW.2 and the Ex.P1 to 8 were
marked in the evidence. The respondent No.2 produced
the copy of the policy and the same was marked as Ex.R.1
by consent.
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09. After hearing the arguments, the Tribunal took
up the issue No.2 alone and held that it had no territorial
jurisdiction. The petition came to be dismissed with cost of
Rs.5,000/-.
10. Being aggrieved by the said judgment, the
petitioner is before this Court in the appeal.
11. The Tribunal records have been secured.
12. At the outset, it is necessary to note that the
Tribunal do not mention anywhere that issue No.2 was
taken up as a preliminary issue. That being so, it was
bound to give its finding on the remaining issues. As such,
the impugned judgment is flawed on this count.
13. The Tribunal held that the documents produced
by the petitioner revealed that the accident had occurred
in Maharashtra, the place of residence of the petitioner
mentioned in the complaint is Maharashtra and the policy
was issued in Maharashtra. As such, the petition should
have been filed in a Tribunal in Maharashtra. While coming
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to such conclusion, it was also noticed that in the petition,
the petitioner had stated his place of residence to be
Kumatagi Tq & Dist: Vijayapura. If the address shown in
the cause title is taken as the place of residence, then the
Tribunal had the jurisdiction.
14. The learned counsel appearing for the petitioner
would submit that when the place of business of the
respondent No.2 - insurance company is also Vijayapura,
the view of the Tribunal that the place of residence as
mentioned in the complaint has to be accepted in order to
determine the territorial jurisdiction of the Tribunal is
impermissible. He relies on the judgment of Apex Court in
the case of Malati Sardar Vs National Insurance
Company Limited1.
15. Per contra, the learned counsel appearing for
the respondent No.2 submits that the branch offices of the
insurance company are situated in many places in
(2016) 3 SCC 43
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Karnataka, but primarily the policy was issued by a branch
office in Maharashtra i.e., at Kolhapur. Therefore, she
supported the impugned judgment and submits that the
appeal is bereft of any merits.
16. The perusal of the FIR which is in Marathi
language shows that the accident had taken place in
Maharashtra. In the complaint the petitioner had shown
his address as resident of Kamalgi Tanda Taluka and
District Vijayapura. However, in the petition he showed his
address as the resident of Kumatagi, Post: Kaggod, Tq:
and Dist: Vijayapura.
17. It is pertinent to note that either in the
examination-in-chief of PW.1 or in the cross examination
there is nothing which throws any light in respect of the
issue No.2 framed by the Tribunal. The insurance company
also had not taken up any such contention concerning the
territorial jurisdiction.
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18. The judgment of the Apex Court in the case of
Malati Sardar, in Para No.16 states as below:-
"The provision in question, in the present case, is
a benevolent provision for the victims of
accidents of negligent driving. The provision for
territorial jurisdiction has to be interpreted
consistent with the object of facilitating remedies
for the victims of accidents. Hyper technical
approach in such matters can hardly be
appreciated. There is no bar to a claim petition
being filed at a place where the insurance
company, which is the main contesting party in
such cases, has its business. In such cases,
there is no prejudice to any party. There is no
failure of justice. Moreover, in view of categorical
decision of this Court in Mantoo Sarkar, contrary
view taken by the High Court cannot be
sustained. The High Court failed to notice the
provision of Section 21 CPC."
19. It is pertinent to note that the Apex Court had
taken the view that Section 166 being a benevolent
provision for the territorial jurisdiction must be interpreted
consistent with the object of facilitating remedies for
victims and any hyper technical approach should be
avoided.
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20. It is also relevant to note that even though the
Tribunal in Para No.15 notes the requirement of Section
166 of the Motor Vehicles Act, but it fails to appreciate the
point No.3 mentioned in its own judgment. The points that
were culled out by the Tribunal reads as below:-
1. The Place where the accident has taken place.
2. The place where the claimant is residing or
3. The place where any one of the respondent in the
proceeding is residing or
4. The place where the policy to offending vehicle is
issued from the insurer of the vehicle.
21. The point No.3 as may be seen above states
that the place where one of the respondents in the
proceeding is residing and obviously the respondent No.2 -
insurance company is carrying on its business in
Vijayapura also. Therefore, taking a view that the accident
had taken place in Maharashtra and the policy was issued
in Maharashtra and on that count it has no territorial
jurisdiction, is nothing but only hyper technical approach.
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Therefore, the conclusions of the Tribunal that it had no
territorial jurisdiction cannot be accepted. Under these
circumstances, the impugned judgment in respect of
dismissal of the petition has to be set-aside.
22. The petitioner states that he was a driver and
earning Rs.9,000/- per month and aged about 32 years. In
the injury certificate the age is mention at 30 years and in
the complaint age is mentioned as 30 years. In that view
of the matter, the appropriate multiplier would be 17.
23. The perusal of the FIR at Ex.P.1 and its
translated copy at Ex.P.1(a) and the charge-sheet at
Ex.P.2 would disclose that the rider of the motorcycle was
prosecuted by the Hatkangale police station. The
complaint mentions the narration of the complainant
before the SHO in detail and none of the police papers or
the injury certificate show that the petitioner was
intoxicated at the time of the accident. Therefore, the
contentions taken up by the respondents No.1 and 2 that
the petitioner sustained injuries under the intoxication of
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the liquor while he was crossing the road, cannot be
accepted. The cross-examination of the PW.1 also does
not throw any light on this contention of the respondents.
24. Hence, the actionable negligence has to be
attributed to the rider of the motorcycle owned by the
respondent No.1 and insured by the respondent No.2.
25. Though, the petitioner contends that he was a
driver and earning Rs.9,000/- per month, except the oral
testimony of the petitioner there is nothing else to show
his income. Therefore, the notional income of the
petitioner has to be determined by this Court.
26. The guidelines issued by the KSLSA for
settlement of disputes before Lok-Adalath prescribe a
notional income of Rs.7,000/- per month for the year
2013. In umpteen number of judgments, this Court has
held that the guidelines issued by the KSLSA are in
general conformity with the wages fixed under the
Minimum Wages Act. Therefore, they are acceptable.
Hence, the notional income of the petitioner is considered
at Rs.7,000/-.
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27. The petitioner relies on the injury certificate
produced at Ex.P.5 which shows that he had suffered
fracture of tibia and fibula of the left leg. The hospital
records in the form of the hospital bill show that he was in
patient from 08.01.2013 to 21.02.2013 and he underwent
surgery. He also relies on the disability certificate issued
by PW.2 which is at Ex.P.7. According to PW.2, the
petitioner had a disability in squatting, sitting cross leg,
standing on the affected the leg for long time. Such
difficulties constitute 9% disability. Insofar as the mobility
component is concerned it was observed that there is
restriction of the movement in the knee joint flexion and
abduction are restricted. Therefore, he opined that there is
a total disability of 18% in the left lower limb. Accordingly,
he has stated in his testimony also. It is pertinent to note
that PW.2 is not a doctor who had treated the petitioner.
28. Considering the above circumstances, which are
brought on record, the functional disability of the
petitioner, that he being a driver by profession has to be
accepted at 9%. Therefore, the loss of future earning is
calculated as Rs.7,000/- x 12 x 17 x 9% = Rs.1,28,520/-.
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29. Consequent to the above holding that the
petitioner was unable to resume his work at least for a
period of 03 months, the loss of income during the laid up
period is calculated as Rs.7,000/- x 3 = 21,000/-.
30. The petitioner had suffered the fracture of tibia
and fibula. Therefore, the compensation under the head of
pain and suffering is awarded at Rs.30,000/-.
31. The petitioner being a driver will have to suffer
the injury for the rest of his life. Therefore, under the head
of loss of amenities in life a sum of Rs.40,000/- is
awarded.
32. Looking into the medical bills which are
produced by the petitioner, a sum of Rs.26,000/- is
awarded to him.
33. The petitioner was inpatient for a period of 12
days. Therefore a sum of Rs.15,000/- is awarded to him
under the head of attendance charges, conveyance,
nourishment etc.,
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34. Therefore, the claimant is entitled for total
compensation of Rs.2,60,520/- under the following
heads:-
Sl. Heads Compensation Awarded
No. by this Court
1. Loss of future income Rs.1,28,520/-
2. Loss of income during Rs.21,000/-
the laid up period
Towards pain and Rs.30,000/-
3.
suffering
4. Loss of amenities in Rs.40,000/-
life
5. Medical expenses Rs.26,000/-
6. attendance charges, Rs.15,000/-
conveyance,
nourishment etc.,
Total Rs.2,60,520/-
35. Hence, appeal deserves to be allowed.
Therefore, the following;
ORDER
I. The appeal is allowed.
II. The appellant is entitled for a sum of Rs.2,60,520/-
along with interest at the rate of 6% p.a. from date
of petition till the date of deposit.
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III. The respondent No.2 directed to deposit the
compensation amount before the Tribunal as per
Section 168 (3) of M.V. Act.
IV. On such deposit, entire amount be released to the
petitioner.
Sd/-
(C M JOSHI)
JUDGE
KJJ
CT: AK
