ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel for the appellant and the learned counsel for the respondent No.1.

02. Being aggrieved by the judgment and award in MVC.No.157/2016 by the learned Senior Civil Judge and JMFC and MACT, Aurad-B, the insurance company is before this Court in appeal.

03. The factual matrix of the case are that on 27.11.2015 at 11:30 p.m. the driver of the Bolero Jeep bearing Reg.No.KA-38-M-2752 drove the said vehicle in high speed and negligent manner and lost control over the said vehicle and made it to fall into a ditch by the side of the road. The petitioner who was an inmate of Jeep, had suffered grievous injuries like fracture of femur, radius and ulna. He was shifted to Government Hospital, Aurad. Thereafter, to higher facilities at Bidar, then again he was sent to Hyderabad for further treatment at Max Cure, Hospital. The police registered a case in crime No.234/2015 and investigation was conducted. The petitioner contended that he was an agriculturist having landed properties and had a monthly income of Rs.25,000/-; due to the accidental injuries, he is unable to perform as before. Therefore, there is a functional disability to the petitioner and sought an appropriate compensation from the owner and insurer of the vehicle.

04. The petition was resisted by the respondent No.2 – insurance company alone. The respondent No.1 remained ex-parte. The respondent No.2 – insurance company contended that the Bolero Jeep was permitted for personal use, but the petitioner had boarded the same as a fare paying passenger. Therefore, there is violation of terms and conditions of the policy. Moreover, the effective and valid driving license was also not held by the driver of the Jeep. Inter-alia it also contended that the compensation claimed is exorbitant, imaginary and untenable in law. The age, income and occupation of the petitioner was also denied.

05. On the basis of the above contentions, the Tribunal framed the following issues:-

I. Whether petitioner prove that on 27.11.2015 petitioner and Vinayak Jagadale were traveling in Bolero Jeep bearing No.KA-38-M-2752 from Gulbarga to Aurad, at about 11.30 p.m. on Aurad-Boral road, near bridge, driver of said jeep drove vehicle in rash and negligent manner, lost control over the vehicle,

in result the vehicle fell into a big ditch and in the accident, the petitioner has suffered grievous and fatal injures to both hands, legs, chest and forehead as stated in the petition.?

II. Whether the petitioner proves his age and income.?

III. Whether petitioner is entitled for compensation.? If so what is the quantum and from whom.?

IV. Whether respondent No.2 proves that owner of the vehicle has violated policy condition and used the vehicle for commercial purpose.?

V. Whether respondent No.2 proves that owner of vehicle has violated Sec. 180, 149(C), 136(6) of IMV Act.?

VI. What order or award.?

06. The petitioner was examined as PW.1 and one witness was examined as PW.2 and Ex.P.1 to Ex.P.36 were marked on behalf of the petitioner. No evidence was led by the respondents.

07. The Tribunal answering issue Nos.1 to 3 in the affirmative and issue Nos.4 and 5 in the negative, proceeded to award the compensation of Rs.10,11,000/- under the following heads :-

08. Being aggrieved by the same judgment, the insurance company is before this Court in appeal.

09. The learned counsel appearing for the appellant would submit that the impugned judgment is illegal, incorrect, perverse, arbitrary and without application of judicious mind. It is submitted that the impugned judgment and award is mechanical. The Tribunal has confused itself as to whether there should be 1/3rd deduction towards personal expenses. Therefore, the

impugne