Karnataka High Court
The Manager vs Mahindra Navistar Automobiles Ltd., ... on 11 August, 2023
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
-1-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.200695 OF 2017 (MV)
C/W
MISCL. FIRST APPEAL NO.200389 OF 2017,
MISCL. FIRST APPEAL NO.200419 OF 2017,
MISCL. FIRST APPEAL NO.200420 OF 2017,
MISCL. FIRST APPEAL NO.200421 OF 2017,
MISCL. FIRST APPEAL NO.200696 OF 2017,
MISCL. FIRST APPEAL NO.200697 OF 2017,
MISCL. FIRST APPEAL NO.200698 OF 2017
Digitally signed
IN MFA NO.200695/2017:
by
LUCYGRACE BETWEEN:
Location: HIGH
COURT OF
KARNATAKA
1. YUSUF S/O SHABBIR NADAF
AGE: 42 YEARS, OCC: COOLIE
2. AKELA W/O YUSUF NADAF
AGE: 39 YEARS, OCC: HOUSE HOLD WORK
BOTH ARE R/O INDIRA NAGAR
AUSA, DIST. LATUR
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
-2-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LIMITED,
SURVEY NO.175, SUDAWADI,
TAL: MAVAL, DIST. PUNE-411 001.
2. THE BRANCH MANAGER,
UNITED INDIA ASSURANCE CO. LTD.,
VIJAYAPURA-586 101.
...RESPONDENTS
(SRI. ANURADHA M. DESAI, ADVOCATE FOR R2;
V/O DATED 06.06.2017, NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
26.10.2016 PASSED BY THE COURT OF III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT NO.XII, AT
VIJAYAPURA, IN M.V.C.NO.1007/2012.
IN MFA NO.200389/2017:
BETWEEN:
1. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
S.S.FRONT ROAD, VIJAYAPUR-586 104
...APPELLANT
(BY SMT. ANURADHA M. DESAI, ADVOCATE)
-3-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LTD.
SURVEY NO.175, SUDAWADI
TAL: MAVAL, DIST: PUNE-412 106
THROUGH ITS MANAGER
2. YUSUF S/O SHABBIR NADAF
AGE: 43 YEARS, OCC: COOLIE
3. AKELA W/O YUSUF NADAF
AGE: 40 YEARS, OCC: HOUSEHOLD
BOTH RESPONDENT NO.2 AND 3 ARE
R/O INDIRA NAGAR, AUSA
DIST: LATUR-413 520
...RESPONDENTS
[R1 AND R2 - SERVED;
SRI AMEET KUMAR DESHAPANDE, ADVOCATE FOR R3
(DESIGNATED AS SENIOR COUNSEL)]
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE MISC.FIRST
APPEAL AND CONSEQUENTLY BE PLEASED TO MODIFY THE
JUDGMENT AND AWARD DATED 26.10.2016 PASSESD BY THE
COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND MACT
XII AT VIJAYPUR IN MVC NO.1007/2012.
-4-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
IN MFA NO.200419/2017:
BETWEEN:
1. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
S S FRONT ROAD, VIJAYAPUR-586 104.
...APPELLANT
(BY SMT. ANURADHA M. DESAI, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LTD.,
SURVEY NO.175, SUDAWADI,
TAL:MAVAL, DIST:PUNE-412 106,
THROUGH ITS MANAGER.
2. SALMAN S/O YUSUF NADAF,
AGE: 17 YEARS, OCC: STUDENT,
M/G YUSUF S/O SHABBIR NADAF,
AGE: 43 YEARS, OCC: COOLIE,
R/O INDIRA NAGAR,
AUSA, DIST: LATUR-413 520.
...RESPONDENTS
(BY SRI. DESHPANDE G. V., ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE MISC.FIRST
APPEAL AND CONSEQUENTLY BE PLEASED TO MODIFY THE
JUDGMENT AND AWARD DATED 26.10.2016 PASSESD BY THE
-5-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND MACT
XII AT VIJAYPUR IN MVC NO.1641/2012.
IN MFA NO.200420/2017:
BETWEEN:
1. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
S.S.FRONT ROAD, VIJAYAPUR-586 104.
...APPELLANT
(BY SMT. ANURADHA M. DESAI, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LTD.,
SURVEY NO.175, SUDAWADI,
TAL:MAVAL, DIST:PUNE-412 106,
THROUGH ITS MANAGER.
2. AKELA W/O YUSUF NADAF,
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O INDIRA NAGAR,
AUSA, DIST: LATUR-413 520.
...RESPONDENTS
(BY SRI. DESHPANDE G. V., ADVOCATE FOR R1;
R2 - SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE MISC.FIRST
APPEAL AND CONSEQUENTLY BE PLEASED TO MODIFY THE
-6-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
JUDGMENT AND AWARD DATED 26.10.2016 PASSESD BY THE
COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND MACT
XII AT VIJAYPUR IN MVC NO.1642/2012.
IN MFA NO.200421/2017:
BETWEEN:
1. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
S.S.FRONT ROAD, VIJAYAPUR-586 104.
...APPELLANT
(BY SMT. ANURADHA M. DESAI, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LTD.,
SURVEY NO.175, SUDAWADI,
TAL:MAVAL, DIST: PUNE-412 106,
THROUGH ITS MANAGER.
2. MUSKAN D/O YUSUF NADAF,
AGE: 13 YEARS, OCC: STUDENT,
M/G YUSUF S/O SHABBIR NADAF,
AGE: 43 YEARS, OCC: COOLIE,
R/O INDIRA NAGAR, AUSA,
DIST: LATUR-413 520.
...RESPONDENTS
(BY SRI. DESHPANDE G. V., ADVOCATE FOR R1)
-7-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THE ABOVE MISC.FIRST
APPEAL AND CONSEQUENTLY BE PLEASED TO MODIFY THE
JUDGMENT AND AWARD DATED 26.10.2016 PASSESD BY THE
COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND MACT
XII AT VIJAYPUR IN MVC NO.1643/2012.
IN MFA NO.200696/2017:
BETWEEN:
1. SALMAN S/O YUSUF NADAF,
AGE: 16 YEARS, OCC: STUDENT,
M/G BY YUSUF S/O SHABBIR NADAF,
AGE: 42 YEARS, OCC: COOLIE,
R/O INDIRA NAGAR, AUSA, DIST. LATUR.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LIMITED,
SURVEY NO.175, SUDAWADI,
TAL: MAVAL, DISTRICT: PUNE-411 001.
2. THE BRANCH MANAGER,
UNITED INDIA ASSURANCE CO. LTD.,
VIJAYAPURA-586 101.
...RESPONDENTS
(SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
V/O DATED 06.06.2017 NOTICE TO R1 IS DISPENSED WITH)
-8-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
26.10.2016 PASSED BY THE COURT OF III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT NO.XII, AT
VIJAYAPURA, IN M.V.C.NO.1641/2012.
IN MFA NO.200697/2017:
BETWEEN:
1. AKELA W/O YUSUF NADAF,
AGE: 34 YEARS, OCC: COOLIE,
R/O INDIRA NAGAR, AUSA,
DIST: LATUR.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LIMITED,
SURVEY NO.175, SUDAWADI,
TAL: MAVAL, DISTRICT: PUNE-411 001.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
V/O DATED 06.06.2017 NOTICE TO R1 IS DISPENSED WITH)
-9-
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
26.10.2016 PASSED BY THE COURT OF III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT NO.XII, AT
VIJAYAPURA, IN M.V.C NO.1642/2012.
IN MFA NO.200698/2017:
BETWEEN:
1. MUSKAN S/O YUSUF NADAF,
AGE: 12 YEARS, OCC: STUDENT,
M/G BY YUSUF S/O SHABBIR NADAR,
AGE: 42 YEARS, OCC: COOLIE,
R/O INDIRA NAGAR, AUSA,
DIST. LATUR.
...APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. MAHINDRA NAVISTAR AUTOMOBILES LIMITED,
SURVEY NO.175, SUDAWADI,
TAL. MAVAL, DIST. PUNE-411 001.
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SMT. ANURADHA M. DESAI, ADVOCATE FOR R2;
V/O DATED 06.06.2017 NOTICE TO R1 IS DISPENSED WITH)
- 10 -
NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
26.10.2016 PASSED BY THE COURT OF III ADDITIONAL
SENIOR CIVIL JUDGE AND MEMBER, MACT NO.XII, AT
VIJAYAPURA, IN M.V.C.NO.1643/2012.
THESE APPEALS COMING ON FOR FURTHER DICTATION,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging common judgment and separate awards dated 26.10.2016 passed by III Additional Senior Civil Judge and MACT-XII at Vijayapura (for short 'Tribunal') in MVCs no.1007, 1641, 1642 and 1643 of 2012, these appeals are filed by claimants and insurer.
2. MFA nos.200695/2017, 200696/2017, 200697/2017 and 200698/2017 are filed by claimants respectively.
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017
3. MFA nos.200389/2017, 200419/2017, 200420/2017 and 200421/2017 are filed by insurer respectively.
4. Smt.Anuradha M. Desai, learned counsel for insurer submitted that these four appeals by insurer were challenging finding of Tribunal on liability. To appreciate contentions, facts only in MFA.no.200389/2017 are stated to avoid repetition.
5. Learned counsel submitted that an accident occurred on 03.02.2012, when Zafar S/o Yusuf Nadaf traveling in vehicle bearing registration no.MH-25/B-9365 ('Truck' for short) towards Omarga. At that time, another vehicle bearing registration no.MH-14/14-TC-794 ('Lorry' for short) driven by its driver in rash and negligent manner lost control and dashed against Truck, causing accident. In said accident, Zaffar sustained fatal injuries and died. Claiming compensation, his parents filed claim
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 petition under Section 166 of Motor Vehicles Act, (for short 'M.V. Act') against owner and insurer of Lorry.
6. Despite service of notice, owner did not participate. He was placed ex-parte. Only insurer filed objections, denying accident and involvement of insured vehicle in accident. Coverage of policy and liability of insurer were also denied. It was specifically contended that there was breach of terms and conditions of policy and therefore, insurer was not liable to pay compensation. It was also contended that since accident took place in Maharashtra, claim petition filed before Tribunal at Vijayapura was without territorial jurisdiction. It was also specifically contended that accident occurred at a distance of 290 kms. from address of insurer and therefore, there was violation of IMT conditions. Hence, insurer was not liable to indemnify insured.
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017
7. Based on pleadings, Tribunal framed issues and recorded evidence. While claimant examined themselves and doctor as PWs.1 to 3, insurer examined its official as RW.1. Exs.P1 to P16 on behalf of claimants and Insurance policy and India Motor Tariff were marked as Exs.R1 and R2.
8. On consideration, Tribunal held that accident occurred due to rash and negligent driving of Lorry by its driver and claimants were entitled for compensation. Insofar as liability, evidence of RW.1 was rejected and it was held that insurer had failed to establish that accident had occurred beyond geographical area i.e., 80 kms. from address of insured.
9. Referring to decision of Hon'ble Supreme Court in Malati Sardar v/s National Insurance Company Limited and Ors. reported in 2016 (3) SCC 43, Tribunal rejected contention of claim petition being beyond
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 territorial jurisdiction. Thus, Tribunal held insurer jointly and severally liable to pay compensation. Aggrieved thereby, insurer was in appeal.
10. Learned counsel strenuously contended that, as per Insurance policy, address of insured was mentioned as Mahindra Navistar Automotives Ltd., Sy.No.175, Sudawadi, Tal. Maval, Dist. Pune, Maharashtra 410301 and accident occurred within limits of Naladurga Police Station, Osmanabad. Though RW.1 - official of insurer deposed that distance between Maval and Naladurga was 290 kms. based on information from Google Search on internet, his evidence was rejected on ground that no certificate as required under Section 65B of Indian Evidence Act was produced. It was submitted that judicial notice could be taken about distance between two places, especially when margin between permitted distance of 80 kms. and actual distance at which accident occurred i.e.,
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 290 kms. was fairly large. Even finding regarding territorial jurisdiction was also sought to be challenged.
11. It was alternatively submitted that in case this Court were to refuse to take judicial notice of distance, prayer for remand of matter back to Tribunal was made to permit insurer to lead specific evidence on said aspect, especially as same would go to root of liability of insurer. On above grounds, she sought for allowing insurer's appeals.
12. On other hand, Shri Sanganagouda V. Biradar, learned counsel for appellants-claimants sought to support awards and oppose insurer's appeals. Insofar as territorial jurisdiction, issue was squarely covered by decision of Hon'ble Supreme Court in Malati Sardar's case (supra), which referring to its earlier decision in Mantoo Sarkar v/s Oriental Insurance Company Limited and Ors. reported in 2009 (2) SCC 244, had settled legal position
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 insofar as place of filing of claim petition. Since it was not in dispute that insurer had place of business at Vijayapura, filing of claim petition at Vijayapura would be justified.
13. Insofar as accident occurring beyond geographical limit of trade plate policy, it was submitted that distance between two places was a question of fact and required to be established by leading specific evidence. Same could not be established by mere oral evidence. It was submitted that since insurer failed to lead specific evidence despite taking such contention in its objections, Tribunal was justified in rejecting deposition of RW-1.
14. Insofar as quantum of compensation, it was submitted that victim in MVC.no.1007/2012 was a 12 years old student and claimants (appellants in MFA no.200695/2017) were parents. Therefore, as per decision of Hon'ble Supreme Court in case of Meenadevi v/s
- 17 -
NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 Nunuchand Manto @ Nemchand Manto and Ors. reported in 2023 (1) SCC 204, compensation of Rs.5,00,000/- with interest at 7% per annum was required to be granted and award of Tribunal required modification.
15. Insofar as MFA no.200696/2017 in MVC no.1641/2012, it was submitted that claimant - Salman aged 12 years sustained fracture of distal shaft of left femur and fracture of distal end of left radius as well as multiple fractures of metatarsals assessed by PW.2 - Dr.S.S.Nagathan to have caused 45-50% disability to left lower limb. However, Tribunal awarded meager compensation of Rs.4,75,000/- and sought enhancement.
16. Insofar as MFA no.200697/2017 in MVC no.1642/2012, it was submitted that claimant - Akela aged 30 years sustained fracture of right tibia and fibula with callous formation and right knee and ankle joints revealing arthritic changes, fractures were treated with
- 18 -
NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 interlocking nails and bolts assessed by PW.2 - Dr.S.S.Nagathan to have caused 25-30% disability to right lower limb. However, Tribunal considering meager disability of 10% and lower monthly income at Rs.4,500/-, awarded inadequate compensation. It was submitted that compensation awarded towards pain and suffering, future medical expenses and medical expenses, loss of income during laid-up period as well as towards loss of amenities was on lower side and sought enhancement.
17. Insofar as MFA no.200698/2017 in MVC no.1643/2012, it was submitted that appeal for enhancement of compensation was not being pressed.
18. Heard learned counsel, perused impugned judgment and awards and also records.
19. From above submission, it is seen that insurer is in appeals challenging finding on liability, while
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 claimants are in appeal for enhancement of compensation. Therefore, points that arise for consideration are:
1. Whether finding of Tribunal on territorial jurisdiction of Claims Tribunal and liability of insurer calls for interference?
2. Whether claimants are entitled for enhancement of compensation as sought for?
Point no.1:
(A) Territorial Jurisdiction:
20. In instant case, there is no dispute about insurer having place of business within territorial jurisdiction of Tribunal. Therefore, ratio of decision of Hon'ble Supreme Court in Malati Sardar's case (supra), referring to its earlier decision in Mantoo Sarkar's case (supra), would clinch issue. Finding of Tribunal on its territorial jurisdiction would not call for interference.
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 (B) Geographical Limit violation of trade plate policy:
21. At outset, legal position about insurer being absolved of liability to pay compensation, if accident occurs beyond geographical limit of trade plate policy is not in dispute. However said contingency would arise on insurer establishing occurrence of accident beyond geographical limit from address of insured mentioned in policy. In instant case, police investigation records establish that accident occurred within limits of Naladurga Police Station. Ex.R1 would reveal that risk covered was under trade plate policy with place of address of insured shown as Maval. While insurer contended that distance between Naladurga and Maval was 290 kms. and therefore far beyond geographical limit of 80 kms. from address of insured and hence, establishing violation of terms and conditions of policy, claimant contends that insurer failed to lead evidence regarding distance between place of
- 21 -
NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 accident and insurance and therefore, defence of violation of trade plate policy was forfeited.
22. While passing impugned award, Tribunal has strained itself on discussion regarding requirement of certificate under Section 65B of Indian Evidence Act, since insurer sought to rely on Google Maps printout to show distance between two places. Indeed insurer had sought to oppose claim petition precisely on said ground, but except leading oral evidence of official without substantiating his experience or expertise to depose about distance between two places, Tribunal cannot be held to have erred in its conclusion as drawn.
23. But, said defence would go to root of liability of insurer, instead of burdening public funds to pay compensation on default, it would be appropriate to grant it an opportunity of leading evidence to substantiate its stand. But, same cannot be at cost of sufferance of
- 22 -
NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 claimants. Therefore, for present, insurer would be required to satisfy award and enhancement, if any, in favour of claimants and upon establishing fact of distance between place of insurance and of accident as being beyond geographical limit of 80 kms. earn right of recovery against insured. Point no.1 for consideration is answered partly in affirmative as above. Point no.2:
24. Insofar as quantum of compensation in MFA.no.200695/2017 in MVC.no.1007/2012, admittedly deceased was 12 years old, minor and claimants are parents. Said facts would unequivocally invite application of ratio in Meena Devi's case (supra), wherein lumpsum compensation of Rs.5,00,000/- with interest at 7% per annum was awarded. Therefore, point no.2 in this appeal is required to be answered partly in affirmative.
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017
25. Insofar as quantum of compensation in MFA.no.200696/2017 in MVC.no.1641/2012, for injuries sustained by minor - Salman aged 12 years, Tribunal awarded compensation under III-Slab as per scale of compensation evolved in Master Mallikarjun v/s NICL., reported in AIR 2014 SC 736. Since limb disability assessed by doctor itself is 45-50%, even if entire disability is considered, claimant would not be entitled for any higher compensation. Therefore, point no.2 in this appeal is answered in negative.
26. Insofar as quantum of compensation in MFA.no.200697/2017 in MVC.no.1642/2012, claimant Smt.Akela aged 30 years, sustaining fracture of right tibia and fibula with callous formation, right knee and ankle joints with arthritic changes etc., PW.3 - doctor has opined that claimant sustained 25-30% disability due to interlocking nails and bolts. Tribunal has considered loss of
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 earning capacity at 10%. On perusal of disability certificate and deposition of PW.3, it is seen that disability assessed is mainly due to restriction of movement and interlocking nails in-situ. It is also seen that arthritic changes in joints may also be due to age of claimant and not reliable to accidental injury. Under such circumstances, assessment of loss of earning capacity at 10% by Tribunal would not appear to be grossly inadequate, therefore, same is not interfered with.
27. Insofar as monthly income, claimant has stated that she was working as agriculturist and earning Rs.7,500/- per month, but Tribunal has taken it at Rs.4,500/-, which would not be justified. Since notional income adopted for settlement of cases before Lok Adalat for year 2012 is Rs.6,500/- per month, same has to be considered. Thus, reassessment of loss of future earnings would be:
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 Rs.6,500/- X 10% X 12 X 13 = Rs.1,01,400/-.
28. Tribunal has awarded Rs.20,000/- towards pain and suffering. Since claimant has sustained two fractures, compensation would be inadequate and same requires to be enhanced to Rs.50,000/-.
29. Tribunal has awarded Rs.5,000/- towards medical expenses. Though PW-3 has deposed about implants in-situ, there is no award towards future medical expenses for removal or replacement. Thus, compensation would be inadequate. It would be appropriate to award Rs.25,000/- towards medical expenses and future medical expenses put together.
30. Tribunal has awarded Rs.13,500/- towards loss of income during lay-off. Normally, fractures take about three months to heal. Therefore, claimant would be
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 entitled for Rs.19,500/- towards loss of income during laid-up period.
31. Considering age and disability certificate, award of Rs.10,000/- towards loss of amenities would be inadequate. Same is enhanced to Rs.30,000/-.
32. Thus, claimant would be entitled for total compensation of Rs.2,25,900/-, which is rounded off to Rs.2,26,000/-. Point no.2 in this appeal is answered partly in affirmative as above.
33. Insofar as quantum of compensation in MFA.no.200698/2017 in MVC.no.1643/2012, point no.2 is answered in negative, since appeal for enhancement is not pressed.
34. Consequently, following:
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NC: 2023:KHC-K:6405
MFA No. 200695 of 2017
C/W MFA No. 200389 of 2017
MFA No. 200419 of 2017
MFA No. 200420 of 2017
MFA No. 200421 of 2017
MFA No. 200696 of 2017
MFA No. 200697 of 2017
MFA No. 200698 of 2017
ORDER
i. Insurers appeals in MFA.nos.200389/2017,
200419/2017, 200420/2017 and
200421/2017 are allowed in part.
ii. Matter is remitted back to Tribunal with
liberty to insurer to lead evidence to
substantiate its contention, regarding
geographical limit violation of trade plate policy. But, insurer shall first satisfy award/enhanced award to claimants without prejudice to its right to seek recovery from insured in case its succeeds in establishing violation of policy condition.
iii. Claimants appeals:
(a) MFA.no.200695/2017 is allowed in part. Claimants are entitled for enhanced compensation of Rs.5,00,000/- with interest at 7% per annum from date of claim petition till deposit as per Meena Devi's case (supra).
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017
(b) MFA.no.200697/2017 is allowed in part. Claimant is entitled for enhanced compensation of Rs.2,26,000/- with interest at 6% per annum from date of claim petition till deposit.
(c) MFA nos.200696/2017 and 200698/2017 are dismissed.
iv. To facilitate early conclusion, next date of hearing of matters is fixed as 25.09.2023. v. Registry to draw decree and send Trial Court records to Tribunal by then.
vi. On said date or such further date as Tribunal may fix, insurer shall examine witness/es and in any case, conclude recording of further evidence within period of one month. Thereafter, owner shall also be provided with opportunity of leading evidence.
vii. On additional issue no.2 insofar as violation of geographical limit of trade plate policy, in case Tribunal arrived at conclusion with
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NC: 2023:KHC-K:6405 MFA No. 200695 of 2017 C/W MFA No. 200389 of 2017 MFA No. 200419 of 2017 MFA No. 200420 of 2017 MFA No. 200421 of 2017 MFA No. 200696 of 2017 MFA No. 200697 of 2017 MFA No. 200698 of 2017 clarification that finding on said issue is in favaour of insurer, Tribunal to pass award permitting insurer to recover compensation from insured.
Sd/-
JUDGE LG/GRD List No.: 1 Sl No.: 33