- 1 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.202642/2022(MV-I) C/W MISCL. FIRST APPEAL NO.201880/2022(MV-I) IN MFA NO.202642/2022: BETWEEN: VIVEKANAND PARASAPPA POTARAJ, AGE: 40 YEARS, OCC: SERVICE, R/O GYANGABAWADI, VIJAYAPURA-586 101. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE) AND: 1. BASHEER AHMAD SAIFANSAB TOLNUR, AGE: MAJOR, OCC: BUSINESS & OWNER OF AUTO RICKSHAW NO.KA-28/C-5932, R/O VIJAYA COLLEGE ROAD, BIDARI HOUSE, DIST. VIJAYAPURA-586 101. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., HANUMASHETTY BUILDING, Digitally signed by SUMITRA SHERIGAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 GURUKUL ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY SRI MANVENDRA REDDY, ADVOCATE, FOR R2; R1-V/O DTD. 27.01.2023, NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT PAYABLE TO THE APPELLANT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 16.09.2021 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XV AT VIJAYAPURA IN MVC NO.928/2017. IN MFA NO.201880/2022: BETWEEN: VISHWANATH ARJUN GUDAGENNAVAR, AGE: 39 YEARS, OCC: SERVICE & AGRIL., R/O GYANGABAWADI, VIJAYAPURA-586 101. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE) AND: 1. BASHEER AHMAD SAIFANSAB TOLNUR, AGE: MAJOR, OCC: BUSINESS AND OWNER OF AUTO RICKSHAW NO.KA-28/C-5932, R/O VIJAYA COLLEGE ROAD, BIDARI HOUSE, DIST. VIJAYAPURA-586 101. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., - 3 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 HANUMASHETTY BUILDING, GURUKUL ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY SRI MANVENDRA REDDY, ADVOCATE, FOR R2; R1-V/O DTD. 27.01.2023, NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT AND ENTIRE LIABILITY SHIFTED TO INSURANCE COMPANY RESPONDENT NO.2 HEREIN AND PAYABLE TO THE APPELLANT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 16.09.2021 PASSED BY THE COURT OF THE IV ADDL. SENIOR CIVIL JUDGE AND MEMBER, MACT-XV, VIJAYAPURA, IN MVC NO.929/2017. THESE APPEALS 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. These appeals are by the petitioners/claimants against the common judgment and award dated 16.09.2021 in MVC Nos.928/2017 and 929/2017, respectively passed by the IV Additional Senior Civil Judge and Motor Accident Claims Tribunal No.XI, Vijayapura, (for short ‘the Tribunal’), seeking enhancement of compensation. - 4 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 2. The factual matrix of the case of the appellants is that on 06.08.2017 at about 4.00 p.m., near Baratang Masjid- Darga Road at Vijayapura, the petitioner in MVC No.929/2017, namely Vishwanath, was riding the motorcycle bearing No.KA- 28/EH-0387 and the petitioner in MVC No.928/2017 namely, Vivekanand was pillion rider and while they were near the Masjid-Darga an auto rickshaw bearing No.KA-28/C-5932 owned by respondent No.1 and insured by respondent No.2 driven by one Pradeep came from opposite direction and collided with the motorcycle, as a result, the petitioners sustained injuries in the said accident and they were shifted to the hospital for treatment. 3. The petitioner - Vishwanath claims to be an employee of Excise Department and earning Rs.31,000/- per month as salary. The petitioner – Vivekanand claims to be a Police Constable. Before the Tribunal they contended that they having sustained the injuries, just and reasonable compensation be awarded to them. 4. On issuance of notice, respondent Nos.1 and 2 appeared through counsel. Respondent No.2 alone filed the - 5 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 written statement contending that the accident occurred due to the negligence on the part of the rider of the motorcycle and there was no such negligence on the part of the driver of auto rickshaw. It is contended that the compensation claimed is highly exorbitant, imaginary and untenable and it denied the age, income and occupation of the petitioners. Inter alia, it contended that there was violation of the terms and conditions of the policy by the driver of respondent No.1 and therefore, the liability on respondent No.2 be absolved. 5. Both the petitions were clubbed together, appropriate issues were framed and common evidence was recorded by the Tribunal. The petitioners were examined as PWs.1 and 2 and documents at Exs.P1 to P10 were marked in evidence. The Officer of respondent No.2 was examined as RW1 and the insurance policy was marked as Ex.R1. 6. After hearing arguments, the Tribunal assessed compensation of Rs.2,26,079/- in respect of Vishwanath under different heads as below, but held that there is 50% contributory negligence on his part in causing the accident, hence, he is entitled for 50% of the said compensation amount: - 6 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 1 Injuries, pain and suffering Rs.30,000/- 2 Medical expenses Rs.1,91,079/- 3 Food, nourishment, special diet and incidental charges Rs.5,000/- Total Rs.2,26,079/- 7. Insofar as the petitioner in MVC No.928/2017 i.e., Vivekanand is concerned, the Tribunal held that he is entitled for global compensation of Rs.30,000/- and he having not contributed any negligence as he was a pillion rider, the entire compensation amount awarded to him to be paid by the respondent No.2. 8. Being aggrieved the said judgment and award the petitioners are before this Court in their respective appeals. 9. Heard learned counsel appearing for the appellants/petitioners, learned counsel appearing for respondent No.2/Insurance Company and perused the materials available on record. 10. The learned counsel appearing for the appellants/petitioners in MFA No.202642/2022 submits that the spot of the accident shows that there was negligence on the part of the auto rickshaw driver. He submits that the said auto - 7 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 rickshaw being a bigger vehicle, the contributory negligence on the part of the auto rickshaw should have been on the higher side. He also submits that the charge-sheet having filed against both the tort-feasors, comparatively heavier vehicle should have been fastened with the higher responsibility and therefore, the Tribunal erred in fastening 50% liability upon the petitioner – Vishwanath. So far as the quantum of the compensation is concerned, he submits that the assessment of the compensation is on the lower side, therefore, there is need for re-assessment. 11. Per contra, learned counsel appearing for appellant/Insurance Company in MFA No.201880/2022 would submit that the contributory negligence fastened upon the rider of the motorcycle is proper and correct and there is no need for any indulgence. He submits that the accident occurred on the centre of the road, therefore, the Tribunal is justified in fastening liability to the extent of 50% on the part of the rider of the motorcycle. So far as quantum is concerned, he defends the impugned judgment and award, on the ground that both the petitioners were Government servants and they have not sustained any disability which would result in reduction of - 8 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 income. Therefore, he submits that the appeals are bereft of any merits. 12. A careful perusal of the Spot Mahazar at Ex.P7 would show that the spot of the accident is exactly at the center of the road which is about 16 feet wide. Therefore, if the vehicles which collided with each other were of equal stature, there would have been a contributory negligence of 50% each. But when one of the vehicles is an auto rickshaw, which is comparatively a bigger vehicle than a motorcycle, the gravity of the caution that should have been exercised by the auto-rickshaw driver should have been considered by the Tribunal. In that view of the matter, the contributory negligence on the part of the driver of the respondent No.1 is held at 70% and that of the petitioner-Vishwanath is held at 30%. 13. Coming to the quantum of the compensation awarded to the petitioner-Vishwanath (MVC.No.929/2017), the Discharge Summery as well as the Wound Certificate, which are at Exs.P1 and P2, show that he had sustained fracture of right tibia, fracture of calcaneum and fracture of distal phalange of - 9 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 little finger on right side. These three fractures were treated at hospital at Miraj and he was inpatient for a period of 08 days as evidenced by Ex.P2. Though the entire discharge summary consisting of two pages is not produced by the petitioner, the relevant aspect regarding the treatment and the period of admission can be found from the single page produced by him. It is worth to note that the petitioner being a Government Servant working in Excise Department has not suffered any loss of income. In that view of the matter, the petitioner is not entitled for any compensation on account of the disability suffered by him. 14. Considering the nature of the injuries suffered and the period of inpatient treatment, it would be just and proper to award a sum of Rs.40,000/- under the head of ‘pain and suffering’ and a sum of Rs.15,000/- under the head of ‘food, nourishment and special diet, conveyance etc’. The Tribunal has not awarded any compensation under the head of ‘loss of Amenities in Life’. The petitioner being not entitled for ‘loss of future income’, is definitely entitled for adequate compensation under the head of ‘loss of amenities’. Hence, a sum of Rs.50,000/- is awarded to him under the said head. The - 10 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 compensation under the head of ‘medical expenses’ do not require any indulgence. 15. The petitioner being a Government Servant has not produced any document to show as to for how many days he was on leave. It is not that petitioner could not have produced such material. The best evidence, which was available with the petitioner to show the number of days of the leave could have been produced. In the absence of any such best evidence that could have been produced, it cannot be said that the petitioner is entitled for any compensation under the head of ‘loss of income during laid-up period’ except the period of inpatient treatment for 08 days. It would be just and proper to award a sum of Rs.10,000/- under the said head. Accordingly, the appellant-petitioner in MFA.No.201880/2022 (MVC.No.929/ 2017) is entitled for total compensation as below: Sl. No. Heads Award by the Tribunal (Amount in Rs.) Award by this Court (Amount in Rs.) 1 Injuries, pain and suffering 30,000/- 40,000/- 2 Medical expenses 1,91,079/- 1,91,079/- 3 Food, nourishment, special diet and incidental charges 5,000/- 15,000/- 4 Loss of amenities in life - 50,000/- 5 Loss of income during leave period - Rs.10,000/- Total 2,26,079/- 3,06,079/- - 11 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 16. Out of the above compensation amount, 30% has to be deducted towards his contributory negligence and as such, he is entitled for a sum of Rs.2,14,255/-. 17. So far as the petitioner in MVC.No.928/2017- Vivekananda Parasappa Potaraj is concerned, he had suffered the fracture of the clavicle as may be seen from the Wound Certificate at Ex.P10. Evidently, he was a Police Constable and he also has not produced any material to show as to for how many days he was on leave. Therefore, the Tribunal has awarded a sum of Rs.30,000/- as global compensation. 18. Having considered the fact that he was a Police Constable and he had suffered a fracture of the clavicle, it would be proper to award a sum of Rs.50,000/- as a global compensation. 19. For the aforesaid reasons, the appeals deserve to be allowed in part. Hence, the following: ORDER (i) The appeals are allowed in part. (ii) The impugned judgment and award passed by the Tribunal is hereby modified. - 12 - NC: 2025:KHC-K:2471 MFA No. 202642 of 2022 C/W MFA No. 201880 of 2022 (iii) The appellant in MFA.No.201880/2022 (MVC.No.929/2017) is entitled for a total compensation of Rs.2,14,255/- as against Rs.1,13,000/- awarded by the Tribunal, with interest of 6% p.a. from date of petition till deposit. (iv) The appellant in MFA.No.202642/2022 (MVC.No.928/2017) is entitled for a global compensation of Rs.50,000/- as against Rs.30,000/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. (v) The respondent No.2 – Insurance Company is directed to deposit the compensation along with interest, within a period of 06 weeks from the date of receipt of a copy of this judgment. (vi) The deposit and release of the compensation amount is as per the order passed by the Tribunal. Sd/- (C.M. JOSHI) JUDGE SBS,NR List No.: 1 Sl No.: 65, CT: AK