The Oriental Insurance Co. Ltd., Vs Mohammed S/O Shahajan Shaikh

1 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

HC-KAR

IN THE HIGH COURT OF KARNATAKA, AT DHARWAD BENCH DATED THIS THE 9^TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI MISCELLANEOUS FIRST APPEAL NO. 101256 OF 2015 (MV-I)

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BETWEEN:

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THE ORIENTAL INSURANCE CO. LTD., REPRESENTED BY ITS MANAGER, DAVID HOUSE, 2^ND FLOOR, PO BOX NO. 234, ABOVE BANK OF INDIA, MARGOA, GOA, NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, HUBLI.

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…APPELLANT

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(BY SRI. RAJASHEKHAR S. ARANI, ADVOCATE)

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AND:

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MOHAMMED S/O. SHAHAJAN SHAIKH, AGE: 28 YEARS, OCC: ACCOUNTANT SAMAK SEA FOODS, CTBON JETTY BETUL, SALEETTE GOA PERMANENT, R/O: SHEDIKULI, BOBRUWADA, ANKOLA.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.15 17:45:58 +0530

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SURYA S/O. KUSTA GAUNKAR, AGE:MAJOR, OCC:OWNER OF TIPPER BEARING NO. GA-08/U-2783, R/O: 271/, SHENVI DEV TEMPLE, MODDEAWADA, TALVADO, SAKEETTE, CUNCOLIM, MARGOA, GOA SOUTH-4037603.

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…RESPONDENTS (BY SRI. SRINIVAS B. NAIK, ADVOCATE FOR R1; R2-SERVED)

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THIS MFA IS FILED U/S.173(1) OF M.V ACT, 1988, PRAYNG TO CALL FOR THE RECORDS HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 16.01.2015 PASSED BY THE ADDITIONAL MACT KUMTA (ITINERARY SITTING AT ANKOLA) IN M.V.C. NO.137 OF 2012 WITH COST IN THE INTEREST OF JUSTICE AND EQUITY.

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2 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

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ORAL JUDGMENT

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This Appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘M.V.Act,’ for short) by the Insurance Company, challenging the judgment and award dated 16.01.2015 passed in MVC No.137/2012

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by the learned Additional MACT, Kumta, itinerary court sitting at Ankola.

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Brief facts leading rise to the filing of this appeal, are as follows:

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On 30.11.2011, the petitioner was proceeding on

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his motorcycle bearing Reg.No.GA-08/L-2521 from Betul to IDC Cuncolim for his official work. When he reached near Global Ispat Company, the driver of the offending vehicle, i.e., Tipper bearing Reg.No.GA-08/U-2783, came in a rash and negligent manner, and dashed to the motorcycle of the petitioner. As a result, the petitioner sustained a grievous

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3 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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injuries. He incurred a huge medical expense. Hence, the petitioner filed a claim petition under Section 166 of the M.V.Act claiming the compensation for the injuries sustained by him in a road traffic accident. Accordingly, prays to allow the claim petition.

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The owner of the offending vehicle filed a statement of objections denying the averments made in the claim petition. It is contended that there is no negligence on the part of the driver of the offending vehicle. Hence, prays to dismiss the claim petition against the owner of the offending vehicle.

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The Insurance Company filed a statement of objections denying the averments made in the claim petition, except admitting that the Insurance policy was in force at the time of accident. It is contended that the driver of the offending vehicle did not possess a valid and effective driving license as of the date of the accident. Hence, prays

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4 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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to dismiss the claim petition against the Insurance Company.

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The Tribunal, based on the pleadings of the parties, framed the relevant issues.

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The petitioner to substantiate his case, examined himself as P.W.1, examined the doctor as P.W.2, and marked 86 documents as Exs.P1 to P86. Conversely, neither the owner nor the Insurance Company lead any oral evidence, however, marked the insurance policy as Ex.R1. One document as EX.C.1 was marked through PW-2.

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The Tribunal, after assessing the verbal and

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documentary evidence, allowed the claim petition in part with costs vide judgment dated 16.01.2015 and awarded a compensation of Rs.5,95,399/- with interest at the rate of 6% p.a. from the date of the petition till the date of realisation, and held that the owner and the insurance company are jointly and severally liable to pay the compensation amount to the petitioner. The Insurance

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5 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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Company was directed to deposit the compensation amount.

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The Insurance Company, aggrieved by the judgment and award passed in MVC No.137/2012, filed this Miscellaneous First Appeal.

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Heard the arguments of the learned counsel for the Insurance Company, and the learned counsel for the petitioner.

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Learned counsel for the Insurance Company

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submits that the compensation awarded by the Tribunal is on the higher side. He submits that although the petitioner produced the salary certificate, however the petitioner has not examined the author of the salary certificate. The Tribunal has taken the monthly income of the petitioner at Rs.12,000/-, which is on the higher side. The Tribunal committed an error in placing reliance on the salary certificate. He submits that mere marking of the document does not dispense its proof, unless the author of the

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6 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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document is examined. He also submits that, at the time of marking of the said document, the learned counsel for the Insurance Company objected to mark the same, and the document has been marked subject to the objections. Hence, on these grounds, he prays to allow the appeal.

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Per contra, the learned counsel for the petitioner supports the impugned judgment and submits that the petition filed under the M.V.Act comes under summary proceedings. He submits that the petitioner has produced the salary certificate, which discloses that the petitioner was getting a monthly salary of Rs.30,000/-. He submits that the tribunal was justified in taking the salary of the petitioner at 12,000/- per month. Hence, on these grounds, he prays to dismiss the appeal.

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Perused the records, and considered the submission of the learned counsel for the parties.

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The point, that would arise for my consideration is regarding the quantum of compensation.

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7 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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There is no dispute regarding the occurrence of

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the accident, the injuries sustained by the petitioner in a road traffic accident, and that the accident occurred due to the rash and negligent driving of the driver of the offending vehicle.

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Regarding quantum of compensation:

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The petitioner contended that he was working as

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an accountant getting salary of Rs.12,000/- p.m., and produced the salary certificate marked as Ex.P12. The petitioner to prove the contents of the salary certificate has not examined the author of Ex.P12. It is settled position of law that, mere marking of the document does not dispense its proof. As observed above, the petitioner has not examined the author of Ex.P12. The Tribunal committed an error in taking the monthly income of the petitioner as Rs.12,000/- as per Ex.P12. Ex.P12 was marked subject to objections. In the absence of proof of income, the Tribunal should have taken the income as per the schedule specified by the Karnataka State Legal Services Authority. The

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8 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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accident occurred in 2011, and as per the schedule specified

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by the Karnataka State Legal Services Authority, the notional income of the petitioner is taken at Rs.6,000/- p.m. As per the proposition laid down by the Hon’ble Apex Court

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in the case of NATIONAL INSURANCE COMPANY LIMITED VS

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PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680, 40% future prospects is to be added to his notional income, i.e., Rs.6,000+ Rs.2,400 = Rs.8,400/-. The petitioner was aged 24 years old as of the date of the accident therefore, the relevant multiplier applicable is 18. The Tribunal has assessed the permanent disability to the whole body at 12% which is just and proper. Considering the entire evidence on record, this court reassess the compensation only under the head of loss of future earning capacity due to a permanent disability, which comes to Rs.2,17,728/- (Rs.8,400/- x 12 x 18 x 12%). Thus, under

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the head of loss of future earning capacity due to a permanent disability, the petitioner is entitled to a compensation of Rs.2,17,728/- as against Rs.3,11,040/-

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9 - NC: 2025:KHC-D:11660 MFA No. 101256 of 2015

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HC-KAR

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awarded by the Tribunal. The compensation awarded by the Tribunal under other heads remains intact. Thus, the compensation awarded by the Tribunal is required to be reduced from Rs.5,95,399 to Rs.5,02,087/-.

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In view of the above discussion, I proceed to

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pass the following order:

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ORDER

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i) The Appeal is partly allowed.

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ii) The judgment and award dated 16.01.2015 passed in MVC No.137/2012 by the learned Additional MACT, Kumta, itinerary court sitting at Ankola, is hereby modified.

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iii) The of compensation awarded by the Tribunal is reduced from Rs.5,95,399 to Rs.5,02,087/-.

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iv) The petitioner is entitled to a total compensation of Rs.5,02,087/as against Rs.5,95,399/awarded by the Tribunal with interest at the rate of 6% p.a. from the date of the petition till its realisation.

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