- 1 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 16TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 24070 OF 2012 (MV-I) BETWEEN: 1. SMT. RADHA KOM RAMESH BANAVALIKAR, AGE: 47 YEARS, OCC: COOLIE, R/O: BELEKERI IN ANKOLA TALUK, PRESENTLY R/O: AT KAJUBAG, KARWAR, DIST: UTTARA KANNADA. …APPELLANT (BY SRI. GANAPATI M BHAT, ADV) AND: 1. R. PERIYASAMY, MAJOR, OCC: BUSINESS, R/O: 79, IIIRD CROSS, KALASIPALAYAM, BANGALORE-560 002. 2. THE ORIENTAL INSURANCE CO. LTD., REP. BY ITS BRANCH MANAGER, BRANCH OFFICE IST FLOOR, 1628, KAIKINI ROAD, KARWAR (POLICY NO.41340213/2006/6094) …RESPONDENTS (BY SRI. B.M. ANGADI, ADV FOR R2, R1 IS STANDS DISMISSED) THIS MFA IS FILED U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DTD: 11-03-2011 PASSED IN MVC NO.5/2009 ON THE FILE OF MEMBER, II-ADDL. MACT, KARWAR, DISMISSING THE PETITION FILED U/SEC.166 OF MV ACT. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Appeal is filed by the petitioner, aggrieved by the dismissal of his claim petition in M.V.C. No.5/2009, vide judgment and award dated 11.03.2011 passed by the learned II Additional M.A.C.T., Karwar. 2. Brief facts, leading rise to the filing of this appeal are as follows: It is the case of the petitioner that she was recommended by Belekeri Port workers and Forest Workers Group contract Co-operative Society Ltd. as a coolie cleaner, and she has been discharging her duty at Belekeri port yard and earning Rs.300/-. Her duty was to clean the lorry after unloading the iron ore. On 17.03.2009, she, along with her colleague by name Bharathi had cleaned one particular lorry, and after cleaning the lorry, at about 3.00 p.m., she was alighting from the body of the said lorry. While so doing, she was collided with by another lorry which - 3 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 was proceeding in a different direction in a rash and negligent manner, driven by its driver. As a result of the said collision, she sustained injuries. Hence, she filed a claim petition under Section 166 of M.V. Act claiming compensation for the injuries sustained by her in an accident. Accordingly, prays to allow the claim petition. 3. A notice was issued to the owner by way of substituted service. Despite the service of notice, respondent No.1/owner remained unrepresented, and was placed exparte. 4. The insurance company filed a statement of objections denying the averments made in the claim petition and accordingly, prays to dismiss the claim petition against the insurance company. 5. The Tribunal, based on the pleadings of the parties, framed the relevant issues. - 4 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 6. The petitioner, to substantiate her case, examined herself as PW-1, examined a witnesses as PW-2 and the doctor was examined as PW-3, and marked 12 documents as Exs.P-1 to P-12. The Insurance Company did not lead any oral evidence; however, marked one document as Ex.R-1 with the consent. 7. The Tribunal, after assessing the verbal and documentary evidence, dismissed the claim petition vide judgment dated 11.03.2011. 8. The petitioner, aggrieved by the dismissal of the claim petition, filed this appeal. 9. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the insurance company. 10. The learned counsel for the petitioner submits that the Tribunal should have taken into consideration the contents of the FIR and the evidence adduced by the - 5 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 petitioner. He also submits that the Tribunal has taken a different view contrary to the records. He submits that there was negligence on the part of the offending lorry which caused the accident. Hence, on these grounds, he prays to allow the appeal. 11. Per contra, the learned counsel for the Insurance Company submits that the petitioner has failed to prove that she was working as a coolie as of the date of the alleged accident. The Tribunal was justified in dismissing the claim petition. Hence, on these grounds, he prays to dismiss the appeal. 12. Perused the records and considered the submissions of the learned counsel for the parties. 13. The point that would arise for consideration is: 1) Whether the Tribunal was justified in dismissing the claim petition without considering the claim petition filed under Section 166 of M.V. Act? - 6 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 2) If no, does the petitioner prove that she has sustained injuries in the road traffic accident? 3) Whether the petitioner is entitled to any compensation? Regarding Point No.1: 14. The petitioner examined herself as PW-1. She reiterated the claim averments in the examination-in-chief and also produced the documents marked as Exs.P-1 to P- 12. Further, the petitioner also examined one Venkatesh Datta Banvalikar as PW-2, who has stated that the petitioner was working as coolie as of the date of the accident. The petitioner also examined the doctor as PW-3 to prove that she had sustained grievous injuries in the road traffic accident. In rebuttal, the Insurance Company has not led any evidence to disbelieve the evidence of PW-1 to PW-3. However, the Tribunal has dismissed the claim petition only on the ground that there is no clarification regarding when the petitioner was appointed as coolie by the first respondent before the tribunal and whether the - 7 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 petitioner fall within the definition of employee, to fix the liability on the second respondent/the insurance company. 15. Admittedly, the claim petition is filed under Section 166 of M.V. Act; however, the Tribunal has treated the claim petition as if it were filed under the provisions of the Employees’ Compensation Act. The Tribunal without considering that the claim petition is filed under Section 166 of M.V. Act, has committed an error in dismissing the claim petition on the ground that there is no clarification regarding the existence of employer and employee relationship between the petitioner and the respondent No.1 before the tribunal. Hence, the Tribunal was not justified in dismissing the claim petition, and point No.1 is answered accordingly. Regarding Point No.2 16. The petitioner has produced a certified copy of the charge sheet marked as Ex.P-3, which discloses that the accident occurred due to the rash and negligent driving of - 8 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 the driver of the offending vehicle/Lorry. The Insurance Company denied the accident, but has not placed any oral or documentary evidence to prove the same. Further, PW-2 has deposed that the petitioner was working as coolie as of the date of the accident. The Insurance Company has not examined any witness to disprove the testimony of PW-2. The Tribunal, without considering the evidence of PW-2 and in the absence of any rebuttal evidence placed by the Insurance Company, answered the issues No.1 and 2 in the negative, and dismissed the claim petition. 17. As of the date of the accident, the offending vehicle was insured with the Insurance Company. Hence, the Insurance Company is liable to indemnify the owner of the offending vehicle, and therefore, respondents No.1 and 2 before the tribunal are jointly and severally liable to pay the compensation to the petitioner. Hence, point No.2 is answered accordingly. - 9 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 Regarding Point No.3: 18. The petitioner to prove that she has sustained injuries in the road traffic accident, produced documents marked as Exs.P-1 to P-12, which disclose that the petitioner was admitted as an inpatient in two different hospitals for the injuries sustained in the accident on two different occasions. Further, the petitioner was subjected to clinical as well as radiological examination in both hospitals. It is noticed that the petitioner was operated upon with P.G. and elevation under S.A. It is also noticed that the petitioner has produced medical bills marked as Ex.P-11 to substantiate that she incurred expenditure for the medical treatment. 19. Further, the petitioner, to prove the disability, examined the doctor as PW-3, who deposed that he has examined the petitioner clinically and radiologically. He also deposed that the petitioner has suffered 25% disability to her right knee and issued a disability certificate at Ex.P-6. To rebut the above oral and documentary evidence, the - 10 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 Insurance Company has not discharged its burden to disbelieve the oral evidence of PW-1 to PW-3 and the documentary evidence adduced by the petitioner. The Tribunal without considering the said aspect, dismissed the claim petition. Hence, this Court, based on the oral and documentary evidence placed by the petitioner, assesses the quantum of compensation to which the petitioner is entitled. Regarding quantum of compensation: 20. The petitioner has contended that she worked as a coolie and used to earn Rs.300/- per day. To prove the disability, she examined the doctor as PW-3 who has opined that the petitioner has suffered a disability to the extent of 25% to the lower limb i.e., right knee. The disability of whole body comes to 9% (1/3rd of 25%). Although, the petitioner has contended that she used to earn Rs.300/- per day, she has not produced any income proof, to prove her income. - 11 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 21. In the absence of income proof, the notional income has to be assessed as per the schedule notified by the Karnataka State Legal Services Authority. The accident occurred in 2009. The notional income should be taken at Rs.5,000/- p.m. The petitioner was aged 44 years old as of the date of the accident. The multiplier applicable to the age group of the petitioner is 14. Accordingly, the loss of future earning capacity is worked out as follows: 5000 x 12 x 14 x 9% = 75,600/-. 22. Thus, this Court, on the assessment of the entire evidence on record, awards the compensation under the following heads : Sl.No. HEADS AMOUNT 1. Pain and suffering Rs. 25,000/- 2. Medical expenses including attendant charges and food and nourishment Rs.40,000/- 3. Loss of amenities Rs. 25,000/- 4. conveyance charges Rs. 5000/- 5. Loss of earnings during hospitalization period Rs. 15,000/- 6. Loss of future earning capacity Rs. 75,600/- Total Rs.1,85,600/- - 12 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 23. Thus in all, the petitioner is entitled to a total compensation of Rs.1,85,600 /-. In view of the same, point No. 3 is answered accordingly. 24. In view of the above discussion, I proceed to pass the following: ORDER (i) The Miscellaneous First Appeal is allowed. (ii) The judgment and award dated 11.03.2011 passed in M.V.C. No.5/2009 by the learned II Additional M.A.C.T., Karwar is set aside. (iii) The claim petition in M.V.C.No.5/2009 is allowed in part. (iv) The petitioner is entitled to the total compensation of Rs. 1,85,600/- with interest at 6% p.a. from the date of the petition till its realization. (v) Respondents, No.1 and 2, before the tribunal are jointly and severally liable to pay the compensation amount with accrued interest to the petitioner. - 13 - HC-KAR NC: 2025:KHC-D:12173 MFA No. 24070 of 2012 (vi) The respondent-Insurance Company is directed to deposit the compensation amount with accrued interest within a period of eight weeks from the date of receipt of a copy of this judgment. (vii) The office is directed to transmit the records to the Tribunal forthwith. Sd/- (ASHOK S. KINAGI) JUDGE NAA CT: BSB List No.: 1 Sl No.: 2