Karnataka High Court
The Manager Future General India Ins vs Mahesh S/Fo Vithal And Anr on 22 March, 2025
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NC: 2025:KHC-K:1835
MFA No. 201231 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.201231 OF 2018 (MV-I)
BETWEEN:
THE MANAGER,
FUTURE GENERAL INDIA INS. CO. LTD.,
CORPORATE & REGD. OFFICE, 6TH FLOOR,
TOWER 3, INDIABULLS FINANCE CENTRE,
SENAPATI BAPAT MARG, ELPHISTONE,
MUMBAI-400 013,
(NOW REPRESENTED BY AUTHORIZED
SIGNATORY, HUBLI).
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed
by SHIVALEELA
DATTATRAYA
UDAGI
1. MAHESH S/O VITHAL
Location: HIGH AGE: 27 YEARS, OCC: SOFTWARE ENGINEER,
COURT OF
KARNATAKA R/O VILLAGE MANTHAL, TQ. BASAVAKALYAN,
DIST. BIDAR-585 401.
2. ANTHONI PETER S/O JAKAB
DIED IN THE MOTOR ACCIDENT,
THROUGH HIS WIFE
DIVYAJYOTI W/O ANTHONI PETER,
AGE: 30 YEARS, OCC: SERVICE AT PRIVATE
COMPANY AND OWNER OF MOTORCYCLE BEARING
NO.KA-02/EX-8675 CBZ,
R/O H.NO.8, 1ST MAIN SILVEPUR VILLAGE,
AND POST HASARGATTA CIRCLE,
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NC: 2025:KHC-K:1835
MFA No. 201231 of 2018
BANGALORE NORTH, TQ. BANGALORE,
DIST. BANGALORE.
...RESPONDENTS
(BY SRI. B.C. JAKA, ADV. FOR R1;
V/O DTD. 01.02.2024, NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING SET ASIDE THE JUDGMENT
AND AWARD DATED 05.03.2018 IN MVC.NO.49/2015 PASSED
BY THE II ADDL. DISTRICT AND SESSIONS COURT AND ADDL.
MACT BIDAR SITTING AT BASAVAKALYAN AND ETC.,
THIS APPEAL COMING ON FOR FURTHER 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) Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent No.1.
2. This appeal arises out of the judgment and award in MVC No.49/2015 dated 5.3.2018 by learned II Additional District and Session Judge, Basavakalyan. -3-
NC: 2025:KHC-K:1835 MFA No. 201231 of 2018
3. The factual matrix of the case is that on 09.12.2013 at about 9:30 PM, the petitioner and his cousin were returning to their room and while crossing the nice road, near Kodipalya from Magadi road side towards Madavara, motorcycle bearing No.KA-02 EX-8675 ridden by its rider Anthony Peter dashed to the petitioner, resulting in injuries to the petitioner as well as the rider. Immediately both were shifted to Sanjeevoni Hospital Dasarahalli in an Ambulance. It was contended that the petitioner had sustained comminuted fracture of middle 1/3rd of right tibia, comminuted fracture of right Patella, and the Lefort II fracture with right nasal bone fractures. The petitioner was searching for a job and he was in Engineering graduate searching for a job as a Software Engineer. It is contended that the petitioner would have received an income of Rs.25,000/- per month and now due to the injuries caused in the accident, his future is bleak and therefore, he may be awarded the adequate compensation.
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4. In response to the notice, the respondent No.1 did not appear and as such place ex-parte. Respondent No.2-Insurance Company appeared through its counsel and filed a written statement. It was contended that the accident occurred due to the negligence of the petitioner as he tried to cross the road without observing the oncoming traffic and that the rider of the motorcycle Anthony Peter was not having a valid driving licence. Inter-alia, the insurance company had also denied the insurance cover in the written statement, but later the insurance cover was admitted.
5. On the basis of the above contentions, the Tribunal framed appropriate issues and the petitioner was examined as PW1 and Medical Officer who assessed the disability was examined as PW2, Ex.P1 to 13 were marked. The official of respondent No.2 was examined as RW1 Ex. 1 to 9 were marked on his behalf. After hearing the arguments, the Tribunal awarded compensation of Rs.6,65,900/- under the following heads; -5-
NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 Medical & other expenses, Rs.3,56,900/-
conveyance, attendant
charges and nourishment
Pain and suffering Rs.35,000/-
Loss of amenities Rs.8,000/-
Loss of income during Rs.50,000/-
treatment
Loss of income on account of Rs.2,16,000/- permanent/partial disability Total Rs.6,65,900/-
6. Being aggrieved by the same, the insurance company is in appeal before this Court.
7. The notice to the respondent No. 2 who is the wife of the deceased Anthony Peter was dispensed with since she was placed ex-parte before the Tribunal.
8. The learned counsel appearing for the appellant-insurance company would submit that the Tribunal failed to notice that the petitioner had also contributed for the negligence in commission of the offence. It is submitted that the petitioner was crossing the road without seeing the oncoming traffic and as such it being a National Highway, it was incumbent upon the petitioner to exercise caution while crossing the road. The -6- NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 second prong of the argument by learned counsel for the appellant is that the owner of the motorcycle, Anthony Peter was not having a valid driving licence. It is pointed out that the insurance company had issued notices to the Police Inspector, who investigated the case and also to the address of deceased Anthony Peter calling upon them to produce the driving licence, but they have not heeded to the same. It is also contended that an application filed before the Tribunal seeking direction to the Police Officer to produce the driving licence also came to be dismissed and it has pre-judicially affected the appellant-insurance company. The 3rd prong of the argument is that the quantum of the compensation amount determined by the Tribunal by adopting a disability of 10% and assessing the income at Rs.10,000 is without any basis and these on the higher side and therefore, there is a need for indulgence of this Court. It is also submitted that the rate of interest awarded at 9% in on higher side.
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9. Per contra, learned counsel appearing for the petitioner- respondent No.1 herein would contend that there is no evidence to show that at the place of the accident there was a bar for crossing the road. He contend that it is a place where the Magadi road joins the nice road and therefore, all the vehicles should exercise caution. He submit that the cross-examination of the PW1 would not disclose anything which render the act of crossing of the road by the petitioner was in violation of road regulations. Secondly he contend that the appellant-insurance company despite having knowledge that Anthony Peter had died, has issued notice to Anthony Peter himself and without ascertaining whether he is alive or not, notices have been issued. It is pointed out that, the Tribunal holding that there is no willful breach of the policy conditions by the deceased Anthony Peter, the Rule of pay and recovery has been adopted by relying on the judgment in the case of Pappu vs. Vinod Kumar -8- NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 Lamba1. Therefore, in the absence of any material to show that there was a willful breach of the policy conditions, interference is not required in that regard. Thirdly he submit that the petitioner was an Engineering graduate and he was in search of job as mentioned in the complaint itself. Therefore, the Tribunal though did not accept the claim of the petitioner that he could have earn Rs.25,000/- per month, has assessed his income at slightly higher than the usual notional income and has awarded the compensation. He also defends the disability stated by PW2 and functional disability assessed by the Tribunal and submit that the appeal is bereft of merits.
10. The first aspect to be considered is whether there is any contributory negligence on the part of the petitioner. A perusal of the police paper would show that in the complaint which is at the Ex.P2, it is clearly mentioned that at about 9:30 PM on 09.12.2013 the petitioner and the complainant got down at Anchepalya bus stand and 1 (2018) 3 SCC 208 -9- NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 were going to their house at Madavara and for that purpose they were crossing the Nice road at Kodipalya. It is evident that they are crossing the road cannot be said to be at a remote place, but it was adjacent to a bus stop. It is relevant to note that whenever there is a bus stop, the passengers are bound to get down and go to their destinations. Therefore, the argument of the learned counsel appearing for the appellant that it was a place where crossing of the National Highway was not permitted appears to be incorrect. However, to augment such an argument, the insurance company is not relying on any sketch of the spot. Obviously such sketch was not produced along with the charge sheet also. Therefore, the available evidence on record clearly show that there was no such contributory negligence on the part of the deceased. In addition to it, nothing is elicited in cross- examination of the PW1 that it was a place where the pedestrian crossing of the road was prohibited. This Court takes notice of the fact that the entire sketch of nice road is protected Highway and only at the places where the
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NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 pedestrian crossing is permitted, the road is open. Hence this argument of contributory negligence cannot be accepted.
11. Coming to the second aspect regarding the driving licence of the deceased Anthony Peter, it is necessary to note that he also died due to the injuries sustained in the said accident. The Tribunal in para 10 categorically note that the owner cum rider of the motorcycle had also sustained injury in the said accident and he was also admitted to Sanjeevani Hospital along with the petitioner. Therefore, it came to the conclusion that the involvement of the vehicle owned and ridden by Anthony Peter cannot be found fault with. Later, the rider also died due to the injuries sustained in accident on 24.01.2014. It is pertinent to note that despite his death is mentioned in the claim petition and the respondent No.1- Divya Jyoti is his wife, notices have been issued to the deceased Anthony Peter as may be seen from Ex.R3, R4 and R5. This shows that the respondent No.2-
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NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 insurance company despite knowing that Anthony Peter is no more has issued notices to the Anthony Peter and it takes shelter under the acknowledgement issued at Ex.P5 by one Nikita. It is not known who the said Nikitha is.
12. The appellant-insurance company also issues a notice to the Police Inspector by registered post as per Ex.R6, the postal acknowledgment which is at Ex.R8. Not only that, it issues notice to the Office of the Superintendent of Police, Nelamangala Sub-Division, which was returned to it with endorsement of insufficient address as may be seen from ExR9. Thus, it is evident that the insurance company though claims that it was vigilant and diligent in searching for a valid driving licence of the deceased Anthony Peter, went on to issue notice to a deceased customer. It is pertinent to note that without ascertaining whether the Police Officer had investigated the matter properly and whether the charge sheet documents contain the driving licence of the deceased Anthony Peter, an application was filed by the appellant
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NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 before the Tribunal seeking summoning of the document from the Investigating Officer. Such application has been dismissed by the Tribunal holding that the custody of the driving licence by the Investigating Officer was not established.
13. The above circumstances would show that, there was no such a willful breach of the conditions of the policy in case of which the insurance company was at liberty to take shelter under the provisions of Section 149(2) Motor Vehicles Act. Observing so, the tribunal in para 15 comes to the conclusion that it is a case where the principles laid down in the case of Pappu vs. Vinod Kumar Lamba2 and the principles laid down in the case of National Insurance Co. Ltd V/s Swaran Singh and Others3 are applicable. Such conclusion is proper and correct and no interference is required in the same. 2 (2018) 3 SCC 208 3 (2004) 3 SCC 297
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14. Coming to the quantum of the compensation amount, it is relevant to note that the PW1 states in his affidavit that he was working in a private company as a Software Engineer and earning Rs.25,000/- per month. In the cross examination, even though it was suggested that he was not working anywhere, such suggestions came to be denied.
15. It is pertinent to note that, though the petitioner contends that he was an Computer Engineer, nothing is produced to show that he was a Engineering graduate. He simply boasts himself to be an Engineering graduate and claims that he was a Software Engineer. Therefore, in the absence of any material on record to show that he was a Software Engineer earning Rs.25,000/- per month, the Tribunal appears to have outreached to conclude that he was a Software Engineer. Even to show that he was a Software Engineer, there is nothing on record. The petitioner would have got his graduation certificates, marks cards etc., to establish the
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NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 same, which would have been the best evidence in the matter. Such best evidence having not been produced by the petitioner, the Tribunal should have adopted the notional income.
16. 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/-.
17. So far as the disability is concerned, it has come in the complaint filed at Ex.P2 that the petitioner and his cousin were returning after searching for the job. Therefore, he was searching for the job at the time of the accident. The nature of the injuries suffered by the petitioner would show that he had suffered three fractures
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NC: 2025:KHC-K:1835 MFA No. 201231 of 2018 i.e. fracture of middle 1/3rd of the right Tibia, fracture of the Patella and fracture of the nasal bones. The fracture of the tibia and Patella would definitely contribute for the physical disability as stated by PW2. In his opinion, he has not given any disability for the limb. However, he said that whole body disability is 42%. It is not known, how such a assessment is made by him for the whole body. A Medical Officer has to assess the physical disability and the Tribunal has to assess the functional disability. Obviously functional disability would be depend upon the physical disability of the limbs. Hence, the Tribunal assessing the functional disability at 10% on account of the fracture of the right tibia and Patella cannot be found fault with. Under these circumstances, the disability assessed by the Tribunal at 10% has to be upheld.
18. In the light of the same, the compensation under the head of loss of future income on account of disability is calculated as Rs.7,000/- x 12 x 18 x 10% = Rs.1,51,200/-.
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19. The compensation awarded under the remaining heads do not require any modification.
20. The Tribunal has awarded the interest at the rate of 9% per annum, but in view of the judgment of this Court in Shriram General Insurance Company Ltd. V/s Smt. Laxmi4, in MFA No.103557/2016, dated 20.03.2018, the rate of interest has to be 6% only. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The petitioner is entitled for a sum of Rs.1,51,200/- instead of Rs.2,16,000/-
awarded by the Tribunal along with interest at 6% per annum from the date of petition till its realization.
(iii) Rest of the order of the Tribunal including direction to pay and recover remain unaltered.
(iv) Amount in deposit before this Court be transmitted to the Tribunal.
4 MANU/1239/2018
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(v) The Registry to send back the trial Court records to the concerned Court.
Sd/-
(C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 57 CT: AK