Karnataka High Court
Parvati And Anr vs M/S Allcargo Logistics Limited And Anr on 23 August, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA, R
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
MISCL. FIRST APPEAL NO.200582 OF 2021 (MV-D)
C/W
MISCL. FIRST APPEAL NO.200027 OF 2020 (MV-D),
MISCL. FIRST APPEAL No.200028 OF 2020 (MV-D),
MISCL. FIRST APPEAL No.200989 OF 2021 (MV-D)
IN MFA NO.200582/2021:
BETWEEN:
1. SUNITA W/O PRAKASH JADHAV,
Digitally signed by AGE: 58 YEARS, OCC: NIL,
BASALINGAPPA
SHIVARAJ
DHUTTARGAON 2. PRASHANT S/O PRAKASH JADHAV,
Location: HIGH AGE: 31 YEARS, OCC: STUDENT,
COURT OF
KARNATAKA
BOTH ARE R/O. BANJARA COLONY,
VIJAYAPURA.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. M/S ALLCARGO LOGISTICS LIMITED,
6TH FLOOR, AVASHYA HOUSE,
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
CST ROAD, KALINA SANTACRUZ (EAST),
MUMBAI-400 098.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586 101.
...RESPONDENTS
(V/O DATED 08.11.2021, NOTICE TO R1 IS DISPENSED WITH;
SRI SHIVANAND PATIL, ADV. FOR R2;
SRI S.S. MAMADAPUR, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
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
16.08.2019 PASSED BY THE COURT OF I ADDITIONAL SENIOR
CIVIL JUDGE AND MEMBER, MACT-VI, AT VIJAYAPURA, IN
M.V.C. NO.1085/2014, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN MFA NO. 200027/2020:
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, BILGUNDI MANSION,
OPP: MINI VIDHANA SOUDHA,
STATION ROAD, KALABURAGI,
REP. BY ITS ADMINISTRATIVE OFFICER
FOR THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, HERALAGI BUILDING,
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
BEHIND SIDDESHWAR TEMPLE, VIJAYAPURA.
...APPELLANT
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. SMT. SUNITA W/O PRAKASH JADHAV,
AGE: 58 YEARS, OCC: NIL,
R/O. BANJARA COLONY, VIJAYAPURA-586 101.
2. PRASHANT S/O PRAKASH JADHAV,
AGE: 31 YEARS, OCC: STUDENT,
R/O. BANJARA COLONY, VIJAYAPURA-586 101.
3. M/S ALLCARGO LOGISTYCIS LTD.,
6TH FLOOR, AVASHYA HOUSE,
CTS ROAD, KALINA SANTACRUZ,
MUMBAI-400 098.
...RESPONDENTS
(BY SRI SANGANAGOUDA V. BIRADAR, ADV. FOR R1 AND R2;
SRI S.S. MAMADAPUR, ADV. FOR R3)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHILCES ACT, PRAYING TO CALL FOR THE RECORDS
AND HERE THE PARTIES AND SET ASIDEOR MODIFY THE
JUDGMENT AND AWARD DATED 16.08.2019 IN MVC
NO.1085/2014 ON THE FILE OF 1ST ADDL. SENIOR CIVIL
JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL No.VI,
VIJAYAPUR AS AGAINST THE APPELLANT BY ALLOWING THE
APPEAL
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
IN MFA NO. 200028/2020:
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, BILGUNDI MANSION,
OPP: MINI VIDHAN SOUDHA, STATION ROAD,
KALABURAGI.
FOR THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA,
THROUGH AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. SHIVANAND PATIL, ADVOCATE)
AND:
1. SMT. PARVATI W/O SADASHIV JADHAV,
AGE: 66 YEARS, OCC: NIL,
R/O. BANJARA COLONY, VIJAYAPURA-586 101.
2. ANAND S/O SADASHIV JADHAV,
AGE: 36 YEARS, OCC: NIL,
R/O. BANJARA COLONY, VIJAYAPURA-586 101.
3. M/S ALLCARGO LOGISTYICS LTD.,
6TH FLOOR, AVASHYA HOUSE, CTS ROAD,
KALINA SANTACRUZ, MUMBAI-400 098.
...RESPONDENTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1 AND R2;
SRI. S.S. MAMADAPUR, ADV. FOR R3)
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHILCES ACT, PRAYING TO CALL FOR THE RECORDS
AND HEAR THE PARTIES AND SET ASIDE OR MODIFY THE
JUDGMENT AND AWARD DATED 16.08.2019 IN MVC
No.1086/2014 ON THE FILE OF I ADDL. SENIOR CIVIL JUDGE
AND MOTOR ACCIDENT CLAIMS TRIBUNAL No.VI VIJAYAPUR
AS AGAINST THE APPELLANT BY ALLOWING THE APPEAL.
IN MFA NO. 200989/2021:
BETWEEN:
1. PARVATI W/O SADASHIV JADHAV,
AGE: 66 YEARS, OCC: NIL,
2. ANAND S/O SADASHIV JADHAV,
AGE: 36 YEARS, OCC: NIL,
BOTH ARE R/O. BANJARA COLONY,
VIJAYAPURA.
...APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:
1. M/S ALLCARGO LOGISTICS LIMITED,
6TH FLOOR, AVASHYA HOUSE, CST ROAD,
KALINA SANTACRUZ (EAST),
MUMBAI-400 098.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI. S.S. MAMADAPUR, ADV. FOR R1;
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MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
SRI. SHIVANAND PATIL, ADV. FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHILCES ACT, PRAYING TO ALLOW THIS APPEAL AND
ENHANCE THE COMPENSATION AS CLAIMED IN THE CLAIM
PETITION BY MODIFYING THE JUDGMENT AND AWARD DATED
16.08.2019 PASSED BY THE Court OF I ADDITIONAL SENIOR
CIVIL JUDGE AND MEMBER, MACT-VI, AT VIJAYAPURA, IN
M.V.C. No.1086/2014
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 06.08.2025 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M.NADAF) These four appeals are filed against the judgment and award dated 16.08.2019 in MVC No.1085/2014 and 1086/2014 passed by the I Addl. Senior Civil Judge and MACT No.VI, Vijayapura on the ground of liability and inadequate compensation.
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2. The appeal being MFA No.200027/2020 and MFA No.200028/2020 are filed by the Insurance Company on the ground of liability.
3. The appeal being MFA No.200582/2021 and MFA No.200989/2021 are filed by the claimants/appellants seeking enhancement of compensation on the ground that the Tribunal has awarded inadequate compensation.
4. Heard Sri Shivanand Patil, learned counsel appearing for the appellant in MFA No.200027/2020 and MFA No.200028/2020 so also Sri Sanganagouda V. Biradar, learned counsel appearing for appellants/claimants in MFA No.200582/2021 and MFA No.200989/2021 and Sri S.S.Mamadapur for the insured in all the appeals.
5. Sri Shivanand Patil, learned counsel appearing for the appellant/Insurance company in both the appeals vehemently submits that, insurance company called in question the liability fastened on the insurance company to -8- NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR pay the compensation mainly on two grounds. Firstly, as per Ex.R.1, which is a private contract entered into between the insured i.e., respondent No.3 and the insurance company for the contractor plant and machinery. Secondly, as per Section 10 of the Motor Vehicles Act, 1988 (for short, 'M.V. Act'), the driver of the vehicle i.e., Crane was not having effective and valid driving licence to drive the said Crane. The driver was having only licence to drive light motor vehicle and MCWG with transport endorsement.
6. Sofar as first ground is concerned, the learned counsel argued that as per Ex.R1, it is a pure private contract entered between insured and the appellant - Insurance company for the Contractor Plant and Machinery. He has taken us through Ex.R1 the insurance policy/contract and point out that on the opening page, there is clear mention in block & bold letters written as "CONTRACTOR PLANT & MACHINERY INSURANCE POLICY" and relied on the exception provided under the -9- NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR policy found at page No.3, particularly clause (h) under the heading 'Exceptions' and emphasized on exceptions provided in the said policy, especially clause(h).
7. For easy reference, we have extracted the exception provided particularly clause (h) under the said policy which reads as follows:
"EXCEPTIONS:-
THE COMPANY SHALL NOT BE LIABLE UNDER THIS POLICY IN RESPOECT OF a. xxx b. xxx c. xxx d. xxx e. xxx f. xxx g. xxx h. loss or damage whilst in transit, from one location to another location. (Public Liability will not be payable while Contractors Plant & Machineries are on public roads)."
8. He has further submitted that as per extract of the license produced at Annexure-R3, the driver of the vehicle was permitted to drive only three types of vehicles viz.
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR "1. NT MCWG 11/10/2006 UP54
2. NT LMV 11/10/2006 UP54
3. TR TRANS 18/03/2011 UP54"
9. Sri Shivanand Patil with all vehemence submits that the exceptions carved out in the said policy absolving the insurance company from making payment from any liability which would cause on any public road. The insurance policy in the case on hand being a private contractor plant and machinery and not a statutory policy issued under the provisions of the M.V. Act. It is a pure private contract between two individuals and contains terms of contract. However, the said contract contains an arbitration clause that even in the event of any disputes which would arise because of use of such machineries on the site where the machinery is meant to be used. As such, the provisions of M.V. Act could not be made applicable to file or maintain or entertain the claim under the provisions of M.V. Act.
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10. The driver of the said Crane was not possessing driving licence as meant for such type/class of vehicle as has been stated in Section 10 of the M.V. Act. As per the extract of Driving Licence at Ex.R.3, the driver was holding only LMV, transport and other types of vehicle, however, not possessing special licence which is meant to drive the particular vehicle as in case on hand, a Crane. On these two grounds, he sought to allow the appeal and exonerate the insurance company from the liability to pay the compensation.
11. Sri Sanganagouda V. Biradar refuting the submissions of learned counsel appearing for the appellant
- Insurance company with all vehemence submitted that the claimants are third parties in the accident which has occurred on the public road due to the actionable negligence on the part of the driver. He further submits that in view of law laid down by the Apex Court in the case of Pappu and Others Vs. Vinod Kumar Lamba and
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR another1, even in the absence of any licence when third party rights are involved, the insurance company would be primarily responsible to pay the compensation and then to recover from the owner of the offending vehicle. He also submits that the Tribunal has not properly awarded adequate compensation befitting within the expression 'just compensation'. The Tribunal has failed to consider the future prospects and to award appropriate compensation under the conventional heads. As such, the compensation awarded by the Tribunal requires modification and re-determination. Accordingly, sought to dismiss the appeals filed by the insurance company and allow the appeals filed by the claimants.
12. Sri S.S. Mamadapur, learned counsel appearing for the insured refuting the submissions of both learned counsel Sri Shivanand Patil as well as learned counsel Sri Sanganagouda V. Biradar vehemently submitted that 1 (2018) 3 SCC 208
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR the insurance company is liable to pay the compensation as per the contract of insurance produced by the appellant
- Insurance company at Ex.R.1. The question of pay and recover as has been submitted by learned counsel appearing for the claimants, does not arise as the police expressing covers the risk/liability.
13. Sri S.S. Mamadapur taking us through the contract/insurance policy at Ex.R.1 points out that policy covers third party claim stated in the said contract policy at page No.10 under the heading " Third Party Liability". For easy reference, we reproduce the third party liability stated in the contract policy which reads as follows:
" THIRD PARTY LIABILITY -
In consideration of the payment of the additional premium it is hereby agreed and declared that notwithstanding anything to the contrary stated in this policy, the Company will indemnify the Insured:
a) against legal liability for the accidental loss or damage caused to the property of other person.
b) against legal liability (liability under contract excepted) for fatal or non-fatal injury to any persons other than the insured or his own employees or employee of the owner of the works/site/premises/location or employees of the
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR other firms/connected with any other work site/ premises/location or members of the family of the insured or any of the aforesaid."
14. Sri S.S.Mamadapur submits that under the third party liability, if an additional premium is paid notwithstanding the exceptions contained in the policy, the company has agreed to indemnify under the same policy the insured in the event of any legal liability for the loss or damage caused to the property or to the other persons. Clause (a) & (b) stated under the third party liability clearly shows especially clause (b) which says that against legal liability for fatal or non-fatal injury to any person other than the insured or his own employees or employee of the owner of the works/site/premises/location or employees of the other firms/connected with any other work site/premises/location or members of the family of insured or any of the aforesaid.
15. He would further submit that the word used "any other person" covers the third party. As the word
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR "any other person" is wisdomly included to the exclusion of others as the next word says "other than". The opening sentence under the third party liability clause suggests that in consideration of payment of the additional premium, the insured has agreed and declared that notwithstanding anything contained contrary stated in the policy, the insurance company will indemnify the insured. He has further taken us to the first page of the policy where in the tabular column regarding particulars and description, the last item under particulars shows 'Add on Coverage/Clauses opted' and in the adjoining/opposite column, the first item shown as 'Third Party Liability Cover for INR 5 Corers'. He also submits that the insurance company having taken the additional premium now cannot be permitted to contend that the policy is a pure private contract policy limited to the contractor plaint and machinery and seek immunity from indemnifying the insurer. The policy even as per the appellant - Insurance company is a private contract, however, the same
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR contains an exception to an exception with a rider of additional premium. Admittedly, the insured has paid additional premium to cover third party risk. Under these circumstances, it is the insurance company who is liable to pay the compensation by indemnifying the insured for any untoward incidents if takes place either on the plant, site or on the public road. In the site/work place, the insurance covers the persons thereon under the insurance policy and covers any third party claim in respect property/ injury or loss of life other than the persons stated in the heading 'Third Party Liability'. In these circumstances, the Tribunal has properly fastened the liability on the insurance company to pay the compensation.
16. Sri S.S. Mamadapur in answer to the second ground of contentions raised by the leaned counsel appearing for the appellant-insurance company would submit that the unladen weight of the vehicle involved in the accident was below 7500 Kgs. In those circumstances,
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR even a person holding LMV is eligible in law to drive the said vehicle. To buttress his argument, he has relied on the judgment of the Co-ordinate Bench of this Court in the case of The Divisional Manager Vs. Somavva and Others2. He has relied on para No.15 of the judgment (supra) to contend that in the event the unladen weight of the vehicle is below 7500, a person holding LMV can be termed as driver holding effective driving licence to drive the said type of vehicle. Accordingly, sought to dismiss the appeal.
17. Having heard the learned counsel for the parties, perused the records of all the four appeals as well as the trial Court record, the points that arise for our consideration are that:
1) Whether the Tribunal is justified in fastening the liability on the insurance company in the teeth of private contract 2 MFA No.100586/2021 C/w MFA No.101940/2022, DD:17.12.2023
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR policy under the heading "Contractor Plant and Machinery Insurance Policy" covering any risk only on the site as contended by the insurance company?".
2) Whether the Tribunal is justified in fastening the liability on the appellant / insurance company in the absence of valid and effective driving licence to drive particular class of vehicle in the case on hand, a Crane in terms of Section 10 of the M.V. Act?
3) Whether the compensation awarded by the Tribunal befit within the expression 'just compensation'?
18. Our answer to the above points are as under:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : Partly in Affirmative in
the appeals by claimants
for the following:
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C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
REASONS
19. Point No.1: (Reg. Private Contract Policy):
Learned counsel Sri Shivanand Patil for insurer would contend that the policy is a private contract policy and not being a statutory policy under the provisions of M.V. Act, the claim petitions filed under the provisions of M.V. Act are not maintainable. The insurer is under obligation to indemnify the insured only in respect of Contractor Plant and Machinery coverage if any untoward incidents would takes place on the site where the machinery meant to work or any other site where the insured incidental to the work uses the machinery. The vehicle is not meant to run on the public road, it is to be carried on any other transport vehicle having appropriate insurance coverage. In the case on hand, the driver of the Crane was plying it on the public road. In terms of exceptions provided under the policy, particularly clause (h) which we have already extracted above, the insurance company is not liable to
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR pay the compensation since the vehicle was plyed on the public road and met with an accident resulting in death of two persons. The policy being a private policy is very specific in its terms. The parties to the contract are required to adhere to the terms and the agreement in terms of the contract is only to indemnify the insured if any event happens on the working site/location and not otherwise.
20. Sri Patil has further contended that, in the absence of Specific License in terms of section 10 of MV Act, for the special type of vehicle the insurer is not liable to pay the compensation, the Tribunal failed consider this aspect of the matter.
21. Whereas, the learned counsel appearing for the insured Sri S.S. Mamadapur would contend relying on the very same contract policy pointing out at the heading under which a "Third Party Liability" is covered. He submits that when the insured has paid additional
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR premium as sine qua non to cover third party risk notwithstanding anything contrary contained in the policy, the insurer is liable to indemnify the insured in the event any third party loss or damage is caused. Admittedly the additional premium is paid, hence the insurer is liable under the coverage of third party liability.
22. Sofar as the ground of not possessing licence is concerned, it is the submission that since the vehicle involved in the accident i.e., Crane the unladen weight being below 7500 Kgs, a person possessing licence of LMV in view of law laid down by the Apex Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited3 can drive the said vehicle.
23. It is not in dispute that the policy involved in the case on hand is a private contract policy for Contractor Plant and Machinery. However, it cannot be lost sight that there is a particular column which says regarding Add on 3 (2017) 14 SCC 663
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR Coverage/Classes Opted. It is not in dispute that an additional premium paid for third party liability risk coverage. In that eventuality, the insurance company in view of express condition contained under the heading covering 'Third Party Liability' risk with a non-obstante clause with a rider of payment of additional premium agreed to indemnify the insured in the event any loss or damage caused to the third party. The words used are very specific in clause (b) under the heading 'Third Party Liability'. The words in clause (b) open with the words against the legal liability for fatal or non-fatal injury to any person, covered under the said term, other than the persons such as his employee/s on his site or any employees of any other person who are connected with him on the plant. The word 'any person' suggests a third party and having paid the additional premium and in the presence of a non-obstante clause as anything to the contrary stated in the policy, the insurer is liable to pay
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR the compensation in the event any third party loss or damage occurs by use of said machinery.
24. At this stage fragile and feeble attempt is made by learned counsel Sri Shivanand Patil to contend that notwithstanding is restricted and subject to the exceptions and the words to any persons stated therein mean the persons who are on work on the site / premises or location and not on the public road. Clause (h) is in supersession of all the clauses which exempts the insurance company from liability to make compensation if any incident takes place while the machinery carried/used on a public road.
25. We are not inclined to accept the contention put-forth by learned counsel Sri Shivanand Patil, an interpretation has to be considered which is very near to a clause with the intention of object of the said clause is inserted and not remote. The words used under the heading third party liability are very specific with a non- obstante clause that to and with a rider. As could be seen
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR from the words used, the same suggests that in the absence of additional premium even in the presence of non-obstante clause, the insurance company is not liable. However, if the rider is complied i.e., additional premium is paid then the non-obstante clause would comes into picture whereby providing an exception to the exception carved out under the insurance policy thereby making the insurance company liable to indemnify the injured in the event of any third party loss or damages results by using of the said machinery on the public road, while camingon other transport vehicle or otherwise. In the presence of appropriate coverage by means of making additional premium, we have no hesitation to hold that the insurance company under the policy is liable to indemnify the insured. As such, the contentions of the learned counsel appearing for the insurance company is liable to be rejected. Accordingly, the same is rejected.
26. Sofar as the licence is concerned, the Co-ordinate Bench of this Court in the case of Somavva
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR (supra) at para No.15 referring to the judgment of the Tribunal in the said case on the point of liability accepted the view of the Tribunal at para No.16 holding that there is no infirmity with regard to fastening of the liability on the insurance company on the count that a person holding i) MCWG - non transport category, ii) LMV - non transport category and iii) Transport category is entitled to drive a vehicle which comes within the permissible weight though being a special category vehicle within the provisions of the M.V. Act. For easy reference, para Nos.15 and 16 of the aforesaid judgment are reproduced as under:
"15. With regard to liability of the insurance company is concerned, in para Nos.27 to 32, the Tribunal has observed as under:
"27. Regarding Liability: This Court has arrived at the conclusion that the accident occurred due to the rash and negligent driving of the offending mobile crane by it's driver. The respondent No.2 however, has specifically contended that the driver of the offending mobile crane had no valid and effective driving licence to drive the said mobile crane as on the date of the occurrence. In support of it's contention, the respondent No.2 insurance company has placed on record the driving licence
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR extract of Dharmendra Kumar, the driver of the offending mobile crane. On perusal of the said document, it is noticed that the said Dharmendra Kumar was issued driving licence by the licensing authority of Deoria for the following class of vehicles No.1) MCWG-non transport category, No.2) LMV- non transport category and No.3) TRANS - Transport category. It is the case of the respondent No.2 that as per the Central Motor Vehicles Rules 1989, the mobile crane vehicle comes under the category of construction equipment vehicle and is a non transport vehicle which requires a specific category of driving licence.
28. The Learned for the respondent No.2 at the argument stage, relied upon the decision of our own Hon'ble High Court dated 10-09-2015 rendered in MFA No.23085/2012 C/w MFA No.24405/2010 wherein the Hon'ble High Court observed that the findings of the tribunal to the effect that JCB is a special category of vehicle, according to the Motor Vehicles Act and Rules, the driver was not authorized to drive the JCB, cannot be found fault with.
29. Having meticulously gone though the above cited decision of Hon'ble High Court and with due respect to the same. I am of the opinion that it is not applicable to the facts and circumstance of this case as the driver of the offending mobile crane had licence to drive MCWG and LMV non transport vehicle and also transport vehicle. It is very much relevant to consider here the ratio laid down by our own Hon'ble High Court in the decision dated 9-11-2020 rendered in MFA No.6789 of 2010. The Hon'ble High Court in the said decision has
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR held that the Central Government in terms of its notification dated 19-06-1992 had clearly delineated 'construction equipment vehicles' as 'non transport vehicle'.
30. As the driver of the JCB in that case, possessed a license to drive light motor vehicle and in view of what was held by the Hon'ble Apex Court in the Mukund Dewangan case, the driver of the JCB was indeed authorised to drive the JCB in question and held that the tribunal was right in fixing the liability to pay the compensation upon the insurer.
31. In the instant case too, the driver of the offending mobile crane had licence to drive light motor vehicle which also authorises him to drive mobile crane which being non transport vehicle comes under the category of Light Motor Vehicle and therefore, it cannot be said that the driver of the offending mobile crane had no valid and effective driving licence to drive the said vehicle.
32. The first respondent has insured the vehicle with second respondent, as such, second respondent has to indemnify the first respondent. Under such circumstances, respondents No.1 & 2 are jointly and severally liable to satisfy the award. Respondent No.2. who is liable to indemnify the first respondent, has to pay the compensation amount to the petitioners."
16. A careful examination of the finding given by the Tribunal, we are of the considered opinion that the Tribunal has properly appreciated the evidence on record in accordance with law and facts and also the decisions of the Hon'ble Apex Court. Hence, we do not
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR find any illegality or infirmity in the impugned judgment and award passed by the Tribunal as to the liability of the insurance company. Hence, we answer point No.2 in the negative.
27. As could be seen from the provisions of M.V. Act, a light motor vehicle defined under Sub-section (21) of Section 2 in definition clause as "a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or a tractor or road-roller the unladen weight of any of which, does not exceed 7,500 Kgs. In the case on hand, admittedly the Crane was below 7,500 Kgs unladen vehicle. In these circumstances, a person having licence of non-transport/transport vehicle to drive a light motor vehicle, can drive the said vehicle (crane). In view of the judgment passed by the Co-ordinate Bench of this Court in Somavva (supra), we have no hesitation to hold that the driver in the case on hand is possessing valid and effective licence to drive the particular class of vehicle. The Tribunal at paragraph Nos.54 and 55 discussed regarding the vehicle involved in the accident, the Crane and held
- 29 -
NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR that in view of third party liability coverage, the insurer is liable to indemnify the insured. So also discussed on the point of licence of the driver at page No.55 and properly appreciated and held that the driver was holding valid and effective driving licence. We see no infirmity either in fastening liability on the appellant / Insurance company or on the licence of the driver. Accordingly, above point Nos.1 and 2 are answered in the Negative and against the appellant / Insurance company.
28. Point No.3: (On quantum of compensation):
In MFA No.200582/2021:
29. Sri Sanganagouda V. Biradar taking this Court through the judgment and award of the Tribunal would contend that the deceased was 59 years at the time of accident and he was growing grapes and exporting the same and thereby earning Rs.50,000/- p.m. However, there is no proof of income to show that deceased was earning Rs.50,000/- per month. However, the bank
- 30 -
NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR statements as well as copies of RTCs of land as per Exs.P.13 to 18 are produced which clearly show that the deceased was having sufficient land. Though as per the Chart, the income is fixed at Rs.7,500/- for the year, 2014. However, in view of the fact that the deceased was having sufficient land, the Tribunal has properly considered the income at Rs.10,000/- p.m. and also properly deducted 1/3rd towards personal expenses of the deceased. But, the Tribunal has not added 10% towards future prospects in view of law laid down by the Apex Court in the case of NATIONAL INSURANCE CO. LTD. VS. PRANAY SETHI4. Having considered the age of the deceased being 59 years and there are two claimants i.e., wife and son, the compensation awarded by the Tribunal under the head loss of dependency as well as conventional heads requires re-determination. Having regard to the facts of the present case on hand that the deceased was 59 years, having sufficient lands and was growing grapes 4 (2017) 16 SCC 680
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR on the land and earning the income, this Court finds it appropriate to consider the same income as has been considered by the Tribunal i.e., at Rs.10,000/- per month. In view of the income stated supra and on re- determination 'loss of dependency' works out to Rs.7,92,000/- (Rs.10,000/- 10% x 12 x 9 x 2/3). Accordingly, the same is awarded.
30. Taking into consideration that the claimants being wife and son of deceased are entitled for compensation of Rs.80,000/- (Rs.40,000/- x 2) towards 'loss of consortium and loss of filial consortium'. Further, in view of the judgment of the Hon'ble Apex Court in the case of RASMITA BISWAL & OTHERS VS. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER5, there shall be an enhancement of 10% on the conventional heads for every three years. The escalation at 10%+10% (for two completed 3 years) works 5 (2022) 2 SC 767
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR out to Rs.22,000/-. Accordingly, the appellants / claimants are entitled for a sum of Rs.96,000/- (Rs.40,000 x 2 + 20%) towards 'Loss Of Consortium' including Loss Of Filial Consortium'.
31. Further, a compensation of Rs.15,000/- each is awarded under the head 'Loss Of Estate' And 'Funeral expenses And Transportation' respectively, along with 10% + 10% escalation. Therefore, Rs.36,000/- (Rs.15,000 x 2 x 20/100) towards 'Loss Of Estate' And 'Funeral expenses And Transportation'.
32. Thus, on re-determination and re-consideration, the claimants/appellants are entitled for total compensation as follows:
Heads of compensation Amount
Loss of Dependency : Rs. 7,92,000/-
Loss of Estate : Rs. 15,000/-
Loss of Funeral Expenses : Rs. 15,000/-
Loss of Filial Consortium : Rs. 80,000/-
(Rs.40,000 x 2)
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NC: 2025:KHC-K:4915-DB
MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
20% escalation for three completed : Rs. 22,000/-
years [80,000 + 30,000=1,10,000 X 20/100(3 years + 3 years)] TOTAL : Rs. 9,24,000/-
33. The total compensation re-determined by this Court works out to Rs.9,24,000/- as against Rs.7,90,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of filing of the petition till realization.
34. In MFA No.200989/2021:
Learned counsel Sri Sanganagouda V. Biradar submits that the deceased was 70 years, at the time of accident, the Tribunal has not properly considered his income in view of the documents produced and awarded lesser compensation without taking into consideration the income of the deceased at Rs.50,000/- p.m. in view of production of documents i.e., RTC extracts of land and bills for having stored grapes in the cold storage. He further submits that, the compensation awarded under the
- 34 -
NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR conventional heads are on the lower side and the Tribunal has not considered the case for awarding the amount towards 10% escalation for each completed 3 years from 2017 on the conventional heads.
35. In view of the law laid down by the Apex Court in the case of Pranay Sethi (supra), the persons aged upto 60 years are entitled adding on future prospects to the income. In the case on hand, the deceased was aged 70 year at the time of his death, hence the question of addition of future prospects does not arise. However, in view of the law laid down by the Apx Court in the case of Praney Sethi and Rasmita Biswal (supra), 10% escalation of each completed three years from the year 2017 to be awarded on the compensation awarded under the conventional heads. Accordingly, we have found that the Tribunal has not committed any error while taking the income at Rs.10,000/- p.m. in view of the documents i.e., RTC of the land and bills for having stored the grown grapes in the cold storage. The Tribunal has properly
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR taken into consideration the number of dependents and deducted 1/3rd towards personal expenses of the deceased. The Tribunal though awarded Rs.70,000/- under the conventional heads, however failed to award filial consortium. Accordingly, the compensation awarded by the Tribunal under the conventional heads requires re- consideration and on reconsideration the same works out to:
Heads of compensation Amount
Loss of Dependency : Rs. 4,00,000/-
Loss of Estate : Rs. 15,000/-
Loss of Funeral Expenses : Rs. 15,000/-
Loss of Filial Consortium : Rs. 80,000/-
(Rs.40,000 x 2)
10% escalation for three : Rs. 22,000/-
completed years, 2 times
[Rs.80,000 +30,000 =1,10,000
x 20/100 (3 years + 3 years)]
TOTAL : Rs. 5,32,000/-
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NC: 2025:KHC-K:4915-DB
MFA No. 200582 of 2021
C/W MFA No. 200027 of 2020
MFA No. 200028 of 2020
MFA No. 200989 of 2021
HC-KAR
36. The total compensation re-determined by this Court works out to Rs.5,32,000/- as against Rs.4,70,000/- awarded by the Tribunal, along with interest at 6% per annum from the date of filing of the petition till realization.
37. For the foregoing reasons, this Court proceeds to pass the following:
ORDER
i) Both the appeals filed by the appellant- Insurance company i.e., in MFA Nos.200027/2020 and 200028/2020 are dismissed;
ii) The appeals filed by the appellants/claimants in MFA Nos.200582/2021 and 200989/2021 are allowed in part;
iii) The common judgment and award passed by the Tribunal dated 16.08.2019, in MVC Nos.1085/2014 and 1086/2014, passed by the I Addl. Senior Civil Judge and MACT No.VI, Vijayapura is modified;
iv) In MFA No.200582/2021, the appellants -
claimants are entitled for total compensation of
- 37 -
NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR Rs.9,24,000/- as against Rs.7,90,000/-, awarded by the Tribunal along with interest at 6% per annum from the date of filing of the petition till realization;
v) In MFA No.200989/2021, the appellants -
claimants are entitled for total compensation of Rs.5,32,000/- as against Rs.4,70,000/-, awarded by the Tribunal along with interest at 6% per annum from the date of filing of the petition till realization;
vi) The amount in deposit made by the appellant/insurance company in MFA Nos.200027/2020 and 200028/2020 shall be transmitted forthwith to the Tribunal for disbursement.
vii) The balance amount on re-determination in both the appeals i.e., in MFA Nos.200582/2021 and 200989/2021 stated supra along with interest at the rate of 6% per annum shall be deposited by the respondent - Insurance company, within Six weeks from the date of receipt of a copy of this order;
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NC: 2025:KHC-K:4915-DB MFA No. 200582 of 2021 C/W MFA No. 200027 of 2020 MFA No. 200028 of 2020 MFA No. 200989 of 2021 HC-KAR
viii) Disbursement as well as apportionment of the compensation amount shall be as per the impugned order of the Tribunal.
ix) No order as to cost.
Sd/-
(H.P.SANDESH) JUDGE Sd/-
(T.M.NADAF) JUDGE BL List No.: 1 Sl No.: 29 CT:AK