- 1 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.200250/2017(MV-D) C/W MISCL. FIRST APPEAL NO. 200585/2017(MV-I) IN MFA NO.200250/2017: BETWEEN: MUTTAMMA W/O SAIBANNA, AGED ABOUT 31 YEARS, OCC: COOLIE, R/O BELKHERA, TQ. HUMNABAD, DIST. BIDAR. …APPELLANT (BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE) AND: 1. KHAJA MIYAN S/O SHALISAB, AGE: MAJOR, OCC: BUSINESS, R/O H.NO.3-3-151, ANDOOR, BIDAR DIST-584 101, (OWNER OF THE LORRY BEARING NO.AP-28/U-3485). 2. UNITED INDIA INSURANCE CO. LTD., THROUGH ITS DIVISIONAL MANAGER, 2-24/5 MAIN ROAD, NEAR AMBEDKAR CIRCLE, BIDAR-584 101. …RESPONDENTS Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 (BY SRI S.S. ASPALLI, ADVOCATE, FOR R2; R1-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 29.09.2016 PASSED BY THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL, HUMNABAD, IN M.V.C.NO.411/2014, BY ENHANCING THE COMPENSATION AND FIX THE ENTIRE LIABILITY ON RESPONDENT NO.2 TO PAY THE COMPENSATION. IN MFA NO.200585/2017: BETWEEN: SHANTAMMA W/O SHIVRAJ DASHAGOND, AGED ABOUT 48 YEARS, OCC: COOLIE, R/O BELKHERA, TQ. HUMNABAD, DIST. BIDAR. …APPELLANT (BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE) AND: 1. KHAJA MIYAN S/O SHALISAB, AGE: MAJOR, OCC: BUSINESS, R/O H.NO.3-3-151, ANDOOR, BIDAR DIST-584 101. (OWNER OF THE LORRY BARING NO.AP-28/U-3485). 2. UNITED INDIA INSURANCE CO. LTD., THROUGH ITS DIVISIONAL MANAGER, 2-24/5 MAIN ROAD, NEAR AMBEDKER CIRCLE, BIDAR-584 101. …RESPONDENTS (BY SRI S.S. ASPALLI, ADVOCATE, FOR R2; R1-NOTICE DISPENSED WITH) - 3 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 28.09.2016 PASSED BY THE MOTOR VEHICLE ACCIDENT CLAIMS TRIBUNAL, HUMNABAD, IN MVC NO.412/2014, BY ENHANCING THE COMPENSATION AND TO FIX THE ENTIRE LIABILITY ON RESPONDENT NO.2 TO PAY THE COMPENSATION. THESE APPEALS COMING ON FOR ADMISSION, 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. Though these appeals are slated for admission, with the consent of the parties, they are taken up for final disposal. 2. Heard learned counsel appearing for the appellants-petitioners and learned counsel appearing for respondent No.2 – Insurance Company, in both the appeals. - 4 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 3. These two appeals arise out of the common judgment dated 28.09.2016 passed in MVC No.411/2014 and 412/2014 by the Member, Motor Vehicle Accident Claims Tribunal, Humnabad, (for short ‘the Tribunal’), seeking enhancement of the compensation awarded by the Tribunal. 4. The factual matrix of the case is as below: a) The appellants in both these appeals were traveling as pillion riders on the motorcycle bearing No.KA-39/J-8409, while they were traveling on Bidar- Humnabad Road, a lorry bearing Reg. No.AP-28/U-3485 came in high speed and negligent manner from back side and dashed to their motorcycle, resulting in, both these petitioners and the rider falling down and sustaining injuries. They were shifted to Government General Hospital at Hallikhed(B) and thereafter to Prayavi Hospital, Bidar, for further treatment. - 5 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 b) Before the Tribunal, the petitioner – Muttamma in MVC No.411/2014 claims that she was aged 28 years at the time of accident, earning a sum of Rs.9,000/- per month by doing coolie work and after the accident she has suffered disability and she has lost memory powers etc., and as such, prayed that appropriate compensation be awarded to her. c) The petitioner – Shantamma in MVC No.412/2014 claims that she was aged 48 years at the time of accident; doing coolie work and was earning Rs.9,000/- per month. Due to accidental injuries she has suffered permanent disability resulting in decrease in her income. Both these petitioners claimed compensation from respondent Nos.1 and 2 on the ground that the charge-sheet has been filed against the lorry driver by the police after due investigation. d) On being served with the notice, respondent Nos.1 and 2 appeared before the Tribunal and filed their - 6 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 written statements. Respondent No.1, apart from denying the petition averments contended that the accident occurred due to negligence on the part of the rider of the motorcycle and if the Tribunal holds that there is negligence on the part of respondent No.1, the liability may be fastened upon respondent No.2. e) The respondent No.2 – Insurance Company contended that negligence was on the part of the rider of the motorcycle, since, he had allowed two pillion riders on his motorcycle and that the terms and conditions of the policy were violated by respondent No.1. It also contended that the motorcycle was being driven without any regard to law, therefore, contributory negligence has to be attributed to the rider of the motorcycle and to the petitioners. f) The Tribunal on the basis of the above contentions, framed appropriate issues in both the petitions. The petitioners were examined as PWs.1 and 2 - 7 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 and the doctor who assessed disability was examined as PWs.3 and 4, Exs.P1 to P.94 were marked in evidence. No evidence was lead on behalf of the respondents. g) After hearing the arguments, the Tribunal came to the conclusion that the rider of the motorcycle had allowed both the petitioners to travel as pillion riders and therefore there was contributory negligence on his part. The Tribunal attributed 25% of the negligence to the petitioners herein and deducted such amount from the compensation payable to them. The Tribunal also held that these petitioners are entitled for compensation under different heads as below: Sl.No. Heads Amount in (Rs.) 1. Towards loss of future income 1,22,400/- 2. Towards pain and suffering 10,000/- 3. Medical Expenses 46,500/- 4. Towards attendant charges, food and conveyance 10,000/- 5. Loss of amenities 10,000/- 6. Loss of income during laid up period 6,000/- Total 2,09,900/- - 8 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 5. Being aggrieved by the same, the petitioner- Muttamma in MVC No.411/2014 is before this Court in MFA No.200250/2017 and petitioner-Shantamma in MVC No.412/2014 is in appeal before this Court in MFA No.200585/2017. 6. The learned counsel appearing for the petitioners contended that, the petitioners herein could not have been attributed with any contributory negligence since they were the pillion riders. He contended that, absolutely there is no contribution of any negligence by these petitioners in commission of the accident, moreover the lorry had come from behind the motorcycle and therefore the negligence was solely on the part of the driver of the lorry. It is submitted that the petitioners cannot be punished even under any of the criminal law, which contemplates a culpable negligence. Therefore, in this regard he relied on the judgment of the Apex Court in - 9 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 the case of Mohammed Siddique & Anr. vs National Insurance Company Ltd., & Ors.1. 7. So far as the quantum is concerned, he submits that the petitioner-Muttamma was said to have the disability of about 19.27% towards left upper limb and 40% to the brain. He submits that the Tribunal has taken the functional disability at 6% and 4%, which has no correlation to the functional disability of the petitioner. He also submits that there is need for reassessment of the compensation. 8. So far as petition in MVC No.412/2014 filed by the petitioner-Shantamma is concerned he submits that, the petitioner had sustained only minor injuries and the Tribunal erred in awarding only Rs.18,500/-. 9. Per contra, learned counsel appearing for the respondent No.2-Insurance Company would submit that the petitioners had boarded the motorcycle as pillion riders 1 2020 SAR (Civ) 348 - 10 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 and therefore they were also parties to the negligence. He contends that riding the motorcycle with two pillion riders itself has to be held as negligence and therefore the petitioners cannot be separated from such negligence. On this ground, he defends the impugned judgment contending that attribution of 25% negligence to the petitioners is proper and correct. He also submits that the Tribunal has come to the conclusion that the rider had no driving licence and as such, its finding is correct. Regarding quantum he defends the impugned judgment stating that there is no need for any enhancement. 10. The first aspect is to be decided by this Court is whether there is any contributory negligence on the part of the petitioners. Admittedly the petitioners were the pillion riders. Therefore, under any provisions of law they could not be held to have committed culpable negligence and they could not have been punished. When there is no law, which would punish their negligence while travelling - 11 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 as pillion riders, the question of attributing actionable negligence to them is remote. 11. Further, even if we hold that the petitioners had insisted to ride as pillion riders it was lookout of the rider- Raghavendra either to allow them or to refuse to take them as pillion riders. Therefore, as argued when the main contributor is not arrayed as party, it cannot be held that the petitioners herein have contributed any negligence in commission of the accident. 12. The respondent No.2 if at all wanted to attribute any contributory negligence to the rider, it should have impleaded the rider, the owner and insurer of the motorcycle. When the petitioners were the pillion riders, it is a case of composite negligence for them and therefore, the arguments that the attribution of the contributory negligence to the petitioners is proper cannot be accepted under any canons of law. - 12 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 13. The judgment of the Apex Court in the case of Mohammed Siddique (supra) in paragraph No.13 holds as below: “13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection - 13 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. - 14 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.” 14. It was a case where, in an identical situation there were two pillion riders on a motorcycle and it was hit from behind a car. Therefore, even on factual aspects, the ratio laid down in the above decision is applicable. Under these circumstances, the finding of the Tribunal that there is 25% contributory negligence on the part of the petitioners, who are the pillion riders is totally flawed and it deserves to be set aside. 15. Coming to the quantum, the petitioner- Muttamma (petitioner in MVC No.411/2014) had sustained fracture of left temporal bone in the region of mastoid and fracture of left clavicle as stated in the wound certificate at Ex.P94. The disability certificate issued by PW.3-Dr.Abdul Haqq Baogi, which is at Ex.P87 shows that, she had suffered the head injury as well as the fracture of clavicle. He opines that, the disability due to the injuries of the right ulna bone and left clavicle is 19.27%. He states that - 15 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 in case of orthopedic physical disability, body is divided in three parts upper limb, lower limb and trunk and after assessing the restrictions of movement, mobility she has sustained the disability at 19.27%. 16. The PW.4-Rajendra Kothari states that in his disability certificate issued at Ex.P89 that the petitioner had suffered fracture of left temporal bone in mastoid region with diffuse cerebral edema and she was treated conservatively for head and brain injury and she discharged from the Hospital. He states that the petitioner complains of giddiness on and off and fallen number of times, pain and deafness in left ear, abnormal sounds in left ear, sleeplessness in the night, unable to carry weight on hand, neck pain and movements of neck are painful, lethargic, sense of weakness in arms, heaviness and confusion in head, forgetfulness etc., Therefore, he assessed the total disability at 40%. The Tribunal holds that orthopedic disability resulting in functional disability is about 6% and that of the brain injury is to the extent of - 16 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 4%. While coming to such conclusion it also relies on judgment of this Court which says that ordinarily 1/3rd of the physical disability is to be considered as functional disability. 17. It is pertinent to note that there is no such fixed rule which says that 1/3rd of the physical disability shall be taken as functional disability. The judgment of the Apex Court in the case of Raj Kumar vs. Ajay Kumar and Another2, and also the recent judgment of the Apex Court in the case of Sidram v. United India Insurance Co. Ltd.,3 holds that the functional disability is a matter, which needs to be assessed by the Tribunal, but not by the Medical Officers. The reason is that the Medical Officer, who assessed the disability would not be in the knowledge of the avocation of the person of whom the disability is assessed. Therefore, the functionality of a person with reference to his age and avocation would play a vital role when there is a physical disability to him. 2 (2011) 1 SCC 343 3 (2023) 3 SCC 439 - 17 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 18. Under these circumstances, it appears that the Tribunal erred in holding that there is 6% and 4% disability totally 10% to the petitioner-Muttamma. Considering the fact that she is aged about the 28 years and had suffered the head injury as well as the fracture of ulna and clavicle, it would be proper to assess the cumulative functional disability at 16%. 19. The guidelines issued by the KSLSA for the purpose of settlement of disputes before the Lok-Adalath and prescribed notional income of Rs.7,500/- for year 2014, there being no documentary evidence to show that the income of the petitioner has to be considered. In umpteen numbers 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, the loss of future income on account of the disability is calculated as Rs.2,44,800/- (7500 x 12 x 16% x 17) by adopting the multiplier of ‘17’ for the age of 28 years. - 18 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 20. The loss of income during laid up is calculated as Rs.22,500/- (7500 x 3) as against Rs.6,000/- awarded by the Tribunal. 21. The Tribunal has awarded a sum of Rs.10,000/- towards pain and suffering and the same needs to be enhanced to Rs.30,000/-. 22. The Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities in life and considering the age of the petitioner, the same is assessed to Rs.25,000/-. 23. Thus, the compensation awarded by the Tribunal under the remaining heads does not require any enhancement. 24. Thus, the petitioner-Muttamma (in MVC No.411/2014) is entitled for enhanced compensation as under: - 19 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 Sl.No. Heads Amount in (Rs.) 1. Towards loss of future income 2,44,800/- 2. Towards pain and suffering 30,000/- 3. Medical Expenses 46,500/- 4. Towards attendant charges, food and conveyance 10,000/- 5. Loss of amenities 25,000/- 6. Loss of income during laid up period 22,500/- Total 3,78,800/- Less amount awarded by the Tribunal 2,09,900/- enhancement 1,68,900/- 25. So far as the petitioner-Shantamma in MVC No.412/2024 is concerned, she had suffered two minor injuries and she has been awarded a sum of Rs.18,500/-. 26. Considering the fact that she was in hospital for four days, she is entitled for an additional sum of Rs.15,000/- as global compensation in addition to what has been awarded by the Tribunal. 27. In the result, both appeals deserve to be allowed in-part and pass the following: ORDER (i) Both appeals are allowed in-part. - 20 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 (ii) The finding of the Tribunal that the petitioners had contributed 25% towards negligence is hereby set aside. (iii) The appellant/petitioner-Muttamma (in MVC No.411/2014) is entitled for a sum of Rs.1,68,900/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a. from the date of petition till its deposit. (iv) The appellant/petitioner-Shantamma (in MVC No.412/2014) is entitled for a sum of Rs.15,000/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a. from the date of petition till its deposit (excluding the delay of 273 days (i.e. 70 days in filing the appeal, vide order dated 20.03.2025; - 21 - NC: 2025:KHC-K:1776 MFA No. 200250 of 2017 C/W MFA No. 200585 of 2017 and 203 days in filing the recalling application, vide order dated 14.11.2024). (v) The respondent No.2-Insurance company is directed to deposit the compensation amount within a period of six weeks from the date of this order. (vi) Rest of the order of the Tribunal stands unaltered. (vii) Registry to send back the records to the concerned Court. Sd/- (C M JOSHI) JUDGE SBS,SDU LIST NO.: 1 SL NO.: 1 CT:AK