- 1 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201818 OF 2017 (MV-I) BETWEEN: MR. SHAKUNTALA W/O RAMANNA METRI, AGE: 47 YEARS, OCC: COOLIE, R/O ADARSH NAGAR, VIJAYPUR-586 101. …APPELLANT (BY SRI. BAPUGOUDA SIDDAPPA,ADVOCATE) AND: 1. MR. AMASIDDA S/O SHRISHAIL DESAI, AGE: 42 YEARS, OCC: BUSINESS, R/O KOLURAGI, TQ. INDI, DIST. VIJAYAPURA-586 211. 2. THE BRANCH MANAGER, THE IFFCO-TOKIO GENERAL INSURANCE CO. LTD., ASIAN AREA, OPP: SYNDICATE BANK, NEAR ANAND HOTEL, S.B. TEMPLE ROAD, KALABURAGI-585 103. …RESPONDENTS (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; R1-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 AND AWARD DATED 03.04.2017 PASSED IN MVC No.26/2015 ON THE FILE OF THE COURT OF II ADDITIONAL DISTRICT JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL No.III, VIJAYAPUR AT VIJAYAPUR. AND ALLOW THIS APPEAL TO GRANT THE COMPENSATION AMOUNT BY RS.9,58,000/- ONLY AS CLAIMED BY THE APPELLANT AND ETC., THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) 1. Heard the learned counsel appearing for the appellant and learned counsel appearing for respondent No.2. None appears for respondent No.1. 2. Being aggrieved by the judgment and award in MVC No.26/2015 by learned II Additional District and Sessions Judge and MACT-3, Vijayapura dated 03-04-2017, the petitioner is before this Court in appeal. 3. The factual matrix of the case is that, on 27-02-2014 at about 4.30 p.m., while the petitioner was - 3 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 travelling with the goods in pickup vehicle bearing No.KA 28 B 6686 from Atharga to Rajanal, the driver lost control over it and turned turtle and it fell down into a ditch resulting in the petitioner sustaining injuries. The Horti Police registered a case in Crime No.18/2014 and after investigation have filed chargesheet against the driver of the vehicle. Claiming that the petitioner had sustained injuries and she was aged 45 years, working as a coolie filed the claim petition seeking compensation from the owner and insurer of the vehicle. 4. On service of notice, respondent Nos.1 and 2 appeared and filed their written statement. Respondent No.1 while admitting that he is the owner of the vehicle, denied any negligence on his part and also denied that the petitioner had sustained any injury. He also denied the age, occupation and income of the petitioner and stated that liability, if any, has to be fastened upon the respondent No.2, Insurance Company in view of the fact that the insurance policy was in force. - 4 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 5. Respondent No.2 took up the contention that the terms and conditions of the policy were violated and the vehicle was not being used for the transportation of the goods and it being a goods vehicle, the petitioner was an unauthorised passenger and therefore, contended that terms and conditions of the policy were violated and sought to absolve its liability. 6. The Tribunal framed appropriate issues and the petitioner was examined as PW1 and Exhibits P1 to 7 were marked. The official of the respondent No.2 was examined as DW1 and Exhibits R1 and 2 were marked. 7. After hearing the arguments, the Tribunal awarded the compensation of Rs.42,000/- to the petitioner and fastened liability upon respondent No.1, owner of the vehicle. 8. Being aggrieved, the petitioner is before this Court challenging the quantum of the compensation and fastening of the liability on respondent No.1. - 5 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 9. The learned counsel appearing for the petitioner would submit that the policy issued by respondent No.2 which is at Ex.R2 shows that the sitting capacity of the vehicle was 03, but the premium was paid for owner-cum-driver and the driver. It is submitted that the other person excluding the owner-cum-driver and the driver is obviously passenger in the vehicle. He submits that the Insurance Company cannot be absolved from payment in view of the fact that the petitioner was travelling in the said vehicle along with goods. He points out the finding of the Tribunal that there were no goods to be found is erroneous. Secondly, he contends that the compensation awarded by the Tribunal, especially on account of the fracture of right tibia is on the lower side and same need to be enhanced. 10. Per contra, learned counsel appearing for respondent No.2 submits that the chargesheet clearly mention that no goods were found when the panchanama was conducted. The Tribunal has also come to the - 6 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 conclusion that the petitioner was not the owner of the goods. In fact, she has admitted that she is a fare paying passenger in the said vehicle. Therefore, she submits that the fastening liability upon respondent No.1 cannot be found fault with. 11. Regarding quantum of compensation, she submits that in the absence of any permanent disability being established by the petitioner, the compensation awarded by the Tribunal is proper and correct. 12. The perusal of Ex.R2, copy of the policy issued by respondent No.2 would show that it is a commercial vehicle and the description of the vehicle is that, it is a Maxi Truck goods Vehicle. The sitting capacity of the vehicle is mentioned as 03 and premium of Rs.100/- is paid covering the personal accident claim of the owner. Further, towards legal liability to the driver, a sum of Rs.50/- is received by the Insurance Company. 13. It is pertinent to note that the chargesheet at Ex.P6 and spot mahazar at Ex.P3 would show that no - 7 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 goods were found in the vehicle. In fact, the vehicle was used for commuting the passengers. The cross- examination of PW1 would show that she had been to Atharga from Rajanal and while returning, there were other passengers who were to get down at different places. It is elicited that she has paid Rs.20/- to the driver to travel up to Rajanal. The bus fare was Rs.30/-. It is pertinent to note that in examination- in- chief, though she says that she was travelling along with the goods, such goods are not to be found in the chargesheet. She also does not explain what was the goods she was travelling with. The vehicle was a pickup vehicle and the cross-examination shows that there were about 10 to 12 passengers. Therefore, it cannot be said that she was travelling as owner of the goods in the said vehicle. It is not her case that she had hired the vehicle for transporting the goods. In other words, she had boarded the vehicle as a fare paying passenger. - 8 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 14. The Tribunal in paras 12 to 15 of the impugned judgment observes that, respondent No.1 do not mention as to who had hired his vehicle. Though the name of one Ramdas is taken by RW1, who happens to be the respondent No.1, the description of the goods were not mentioned. After an elaborate discussion, it comes to the conclusion that the petitioner was not travelling with any of the goods. In the considered opinion of this Court, there is no need to interfere with the conclusions reached by the Tribunal in this regard. 15. So far as the quantum of the compensation is concerned, the petitioner has sustained fracture of right tibial condyle. The disability has not been assessed. The Tribunal holds that the petitioner is entitled for a sum of Rs.20,000/- towards pain and suffering; Rs.5,000/- each towards medical expenses and loss of amenities and a sum of Rs.12,000/- towards the loss of income during the treatment period, in all Rs.42,000/-. Evidently, for a fracture, the compensation awarded is on the lower side. - 9 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 In the considered view of this Court, the compensation under the head of pain and suffering has to be enhanced to Rs.40,000/- and the compensation under the head of loss of amenities in life has to be enhanced to Rs.25,000/- respectively. In addition to a sum of Rs.12,000/- which has been awarded towards loss of income during the laid up period, the plaintiff is entitled for another sum of Rs.10,000/- under the said head. Therefore, in addition to the compensation of Rs.42,000/- awarded by the Tribunal, the petitioner is entitled for another sum of Rs.50,000/- and the appeal deserves to be allowed in part. Hence, the following: ORDER The appeal is allowed in part. The impugned judgment and award is modified. The petitioner is entitled for a sum of Rs.50,000/- in addition to what has been awarded by the Tribunal - 10 - NC: 2025:KHC-K:1988 MFA No. 201818 of 2017 together with interest at 6% p.a. from the date of petition till its realization. The liability fasten upon respondent No.1 is hereby confirmed. The appeal against respondent No.2 is dismissed. Rest of the order of the Tribunal remains unaltered. Sd/- (C M JOSHI) JUDGE tsn* List No.: 1 Sl No.: 56 CT: AK