- 1 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201457 OF 2019 (MV-I) BETWEEN: MOHAMMAD MOHIN S/O YOUSUF PATEL, AGE: 27 YEARS, OCC: CLEANER, R/O MANGALGI VILLAGE, TQ. HUMNABAD, DIST. BIDAR-585 330. …APPELLANT (BY SRI. BASAVARAJ R. MATH, ADVOCATE) AND: 1. M/S COSMO CARRYING PVT. LTD., REPRESENTED BY ITS PROP. WARISKHAN, 13-1-2-1235/244, ASIF NAGAR, HYDERABAD, OFFICE AT PLOT NO. 1594/2, SY.NO. 134/20, SHIVRAMPALLY, 3RD VENTURE, HYDERABAD-500 052. 2. M/S LIBERTY VIDEOCON GENERAL INS. CO. LTD., 101, 1ST FLOOR, 6-3-1093/101 W, VINTAGE BOULEVARD, RAJBHAVAN ROAD, SOMAJI GUDA, HYDERABAD TELANGANA-500 082.0 …RESPONDENTS (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; V/O DTD. 03.04.2024, NOTICE TO R1 IS DISPENSED WITH) Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 27.03.2019 PASSED BY THE SENIOR CIVIL JUDGE AND MACT AT HUMNABAD IN MVC NO.199/2016 AND PLEASED TO ALLOW THE CLAIM PETTION. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.02.2025 AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE C.M. JOSHI CAV JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) 1. Being aggrieved by the judgment of dismissal of claim petition in MVC No.199/2016 dated 27.03.2019 by the Member, Motor Accident Claims Tribunal, Humnabad, (for short ‘the Tribunal’), the petitioner is before this Court in appeal. - 3 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 2. The factual matrix of the case is as below: a) On 27.12.2015 at about 03.00 hours, the petitioner was traveling in a Container Lorry bearing registration No.AP-13/X-9114 from Hyderabad to Mumbai as a Cleaner and one Mohammed Akram was Driver of the said lorry. Near Manna Ekhelli Village, the driver drove the lorry in rash and negligent manner and dashed to a Lorry bearing No.MH-24/J-7003, resulting in severe injuries to the petitioner. The petitioner was shifted to Government Hospital, Manna Ekhelli Village; and then to the Government Hospital, Bidar; from where he was referred to Gandhi Hospital, Hyderabad; and ultimately landed at Neelima Hospital, Hyderabad. He was inpatient from 27.12.2015 to 02.01.2016, where, the petitioner suffered amputation of the right leg below knee. The petitioner being aged 24 years, earning Rs.10,000/- per month at the time of the accident, claimed compensation from the owner and insurer of the offending lorry. - 4 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 b) On being served with the notice, the respondent No.1 – owner did not appear and therefore, placed ex- parte before the Tribunal. Respondent No.2 appeared through its counsel and resisted the petition. The respondent No.2 contended that the accident was not due to the rash and negligent driving of the said lorry and that the compensation claimed by the claimant is highly exorbitant, imaginary and untenable. It was alleged that the petitioner has not approached the Tribunal with clean hands and he had colluded with the local persons, the driver of respondent No.1 and the Police; to depict that he was a Cleaner. In fact, the FIR showed that the petitioner was on the driver’s seat and therefore, the petition is filed for illegal gains and as such, the same is liable to be dismissed. The petitioner being without a valid driving license, the owner of the lorry had entrusted the same to the petitioner knowingly and therefore, there is violation of the terms and conditions of the policy. Hence, it sought for absolving its liability. - 5 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 c) On the basis of the above pleadings, the Tribunal framed appropriate issues. The petitioner was examined as PW1 and three witnesses were examined as PWs.2 to 4. Exs.P1 to P51 were marked. The respondent No.2 – Insurance Company examined its official as RW1 and a Police Officer was examined as RW2. Ex.R1 was marked on its behalf. d) After hearing the arguments by both the sides, the Tribunal dismissed the claim petition on the ground that the accident was due to the negligent driving of the petitioner himself. Aggrieved by the same, the petitioner is before this Court. 3. The arguments by learned counsel appearing for the appellant-petitioner and the arguments by learned counsel appearing for respondent No.2-Insurance Company were heard elaborately. 4. Learned counsel for the appellant would contend that though the driver of lorry bearing No.MH- 24/J-7003 Narendra Singh lodged complaint to the Police - 6 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 at about 5.00 a.m. stating that the petitioner was found on the driving seat, on the next day, i.e., on 28.12.2015, a further statement was recorded by the Police (RW2) wherein, it was stated that he was confused as the petitioner and one Mohammed Akram had fallen on each other; but in fact Akram was the driver. Later, the Police have investigated the matter and ultimately filed the charge-sheet against the driver Mohammed Akram. Therefore, except the FIR there being nothing on record to show that petitioner was the driver of the lorry, the Tribunal failed to appreciate the evidence in a proper manner and dismissed the petition. He submits that except the said discrepancy, all other records including the hospital records show that petitioner was cleaner and Akram was the driver of the Container Lorry. Hence, he submits that the impugned judgment deserves to be set aside and the claim petition is to be allowed. - 7 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 5. Per contra, learned counsel appearing for respondent No.2 would submit that the alleged further statement recorded by RW2 is a result of collusion of the petitioner and his family members for the purpose of claiming the compensation. She points out that the name of the driver itself had been changed on the very next day by way of a further statement, which does not bear the signature of the complainant. It is contended that the admission by RW2 clearly establishes that the filing of the charge-sheet against Akram is only to help the petitioner in claiming compensation. The Investigating Officer had not ascertained from the owner of the lorry as to who was the driver at the time of the accident. Therefore, she submits that the appeal deserves to be dismissed. 6. The testimony of the PWs.1, 3 and 4, who are the petitioner, PSI of Manna Ekhelli Police Station and an eyewitness, respectively, gains importance in the matter. The cross-examination of the petitioner elicits that the owner of the vehicle had not authorized him in writing to - 8 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 work as a Cleaner in the lorry. But he denies that he traveling in the said lorry was not known to the owner of the vehicle. It is worth to note that the suggestion is that the owner had no knowledge of the petitioner traveling in the lorry. Except this, there is nothing which show that he was driving the vehicle. 7. The testimony of the PW3, the PSI of Manna Ekhelli Police Station, shows that he had taken up the further investigation from the RW2. He completed the investigation and ultimately filed charge-sheet against the said Akram. In the cross-examination, it is elicited that he came to know that the driver and cleaner had fallen on each other in the cabin of the lorry when the accident had happened. It is elicited that he did not enquire as to whether the petitioner – Mohin had the driving license or not. He also did not verify with the owner as to who were the driver and the cleaner. Therefore, there is nothing which would be of any help to respondent No.2 – Insurance Company. - 9 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 8. The PW4 – Shivaraj states that he is an eyewitness and the Container Lorry bearing No.AP-13/X- 1994 driven by one Akram had dashed to another Lorry and on rushing to the spot he noticed that the front of the Container Lorry had badly damaged and on inquiry he came to know that the petitioner was the cleaner and Akram was the driver. In the cross-examination, it is elicited that after the accident, the Lorries were on the road in zigzag manner. When it is suggested to him that the Container Lorry had sustained damages only to the driver side, he answers that the entire frontage of the Lorry was damaged. Therefore, there is nothing which would show that the petitioner was the driver of the Lorry at the time of the accident. 9. Coming to the testimony of RW2, the ASI who had recorded the statement of the complainant on the date of the accident and further statement on the next date, he states that the complainant – Narendrasingh had come to the Police Station and gave his statement. In the - 10 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 said statement, which is the FIR, the complainant had stated that the injured petitioner was found on the driver’s seat and Akram was in the cabin. He also states that the on the next day, Narendrasingh gave a further statement that Akram was the driver and petitioner was cleaner as per the information gathered by him. In the cross- examination by respondent No.2 (the Tribunal do not mention whether it had permitted the respondent No.2 to cross-examine its own witness by treating him hostile), there is nothing which would impeach his testimony. It appears that two questions were clubbed and put to him, for which, he admitted in the affirmative for one and it is construed as an admission for the other. The said portion reads as below: “¸ÀzÀj PÉù£À°è ªÉÆû£ï ºÀwÛgÀ ZÁ®£Á ¥ÀvÀæ EgÀĪÀÅ¢®è D PÁgÀt¢AzÀ ¥ÀÄ£ÀB ºÉýPÉ ¥ÀqÉAiÀÄ®Ä £ÀªÀÄä ªÉÄïÁ¢üPÁjUÀ½AzÀ ¥ÀgÀªÁ¤UÉ ¥ÀqÉ¢gÀĪÀÅ¢®è ºÁUÀÆ «µÀAiÀÄ w½¹gÀĪÀÅ¢®è JAzÀgÉ ¤d. D PÁgÀt¢AzÀ ¦üAiÀiÁð¢zÁgÀgÀÄ £ÀªÀÄUÉ ¤¦-10 gÀAvÉ AiÀiÁªÀÅzÉà ¥ÀÄ£ÀB ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸ÀjAiÀÄ®è.” - 11 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 10. It is relevant to note that the RW2 was not required to obtained the signature of the witness on a statement made under Section 161 of Cr.P.C. 11. Coming to the documents, the complaint at Ex.P9 and the further statement of the complainant at Ex.P10 would show that on 27.12.2015 the complainant had only stated that when he went to the Container Lorry after the accident, the petitioner Mohin was in the driver’s seat and he was injured. If he was sure as to who was the driver, he would have mentioned it in complaint. On the next day, as per Ex.P10, he came to know that Akram was the driver, but on the previous day, he had stated the driver’s name as Mohin. The said Akram had admitted the guilt before the Criminal Court as evidenced by Ex.P12. Thus, except the discrepancy in Exs.P9 and P10, no where the Police papers show that the petitioner Mohin was the driver. 12. So far as the medical records are concerned, the Wound Certificate produced at Ex.P4 only mention that - 12 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 it was an RTA, but does not mention who was the driver or the cleaner. The Discharge Summery of Neelima Hospital at Exs.P15 and other records which are at Exs.P16 and P17 show that the petitioner was the cleaner. It is pertinent to note that none of the case-sheets of the Hospital at Manna Ekhelli, District Hospital, Bidar; Gandhi Hospital, Hyderabad, or Neelima Hospital, Hyderabad, are summoned by either of the parties. Those documents would have mentioned what was the version of the petitioner when he was taken to the hospital in an ambulance. Such evidence could have been summoned by the parties. 13. The testimony of PWs.1, 3, 4, RW2 and the Police investigation papers supports the version of the petitioner. Except Ex.P9, no other documents support the version of the respondent No.2. Evidently, the best evidence that could have been summoned by respondent No.2 is not available. The rule of preponderance of probability leans in favour of the petitioner. The testimony - 13 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 of PWs.1, 3, 4 and RW2 has not been impeached or no where they have admitted that petitioner was the driver at the time of the accident. Under these circumstances, the overwhelming evidence available on record would show that the petitioner was the cleaner. The Motor Vehicle Inspector’s Report shows that the entire front of the Lorry, but not the driver’s side of the cabin only, which had suffered the damage in the accident. Therefore, it cannot be said that the say of Narendrasingh as per Ex.P10 was incorrect. Moreover, in Ex.P9 – complaint, he only says that petitioner was found on the driving seat. It only depicts who was found at what place when he went to see the Lorry which had met with the accident. No where Ex.P9 says that the petitioner was the driver. Therefore, the inferences and conclusions of the Tribunal over-look the rule of preponderance of probability. In that view of the matter, the Tribunal erred in dismissing the petition. - 14 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 14. Coming to the quantum of compensation, though an issue was framed by the Tribunal it has not determined the same. In normal circumstances, this Court could have remanded the matter for assessing the compensation. The petitioner having suffered the amputation to right lower limb in the year 2015, is left with no compensation for over nine years. Therefore, this Court having found sufficient evidence on record, proceeds to determine the compensation. 15. The medical records reveal that the petitioner was aged 25 years at the time of the accident and was working as a cleaner. He has suffered crush injuries of tibia and fibula resulting in below knee amputation. The PW2 – Dr. Vijay Bulgundi states that there is 60% physical disability to the right lower limb. This Court has to determine the functional disability of the petitioner by considering his age and avocation. The petitioner being aged 25 years can adapt himself to the new challenges in his life that has arisen due to amputation of the right lower - 15 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 limb. Therefore, the functional disability is assessed by this Court at 70%. 16. The petitioner has not produced any material to show his income. The employer has not been examined. Hence, the notional income has to be considered by this Court. The guidelines issued by the Karnataka State Legal Services Authority (KSLSA) for the purpose of settlement of disputes before Lok Adalat prescribes a notional income of Rs.8,000/- for the year 2015. In umpteen number of judgments including in the case of Smt. Mariyamma vs. Sri Suyambulingam dated 06.12.2022 in M.F.A. No.7404/2014 the Division Bench of this Court has held that the guidelines issued by KSLSA are in general conformity with the wages fixed under the Minimum Wages Act. Hence, the loss of future income on account of functional disability is calculated as Rs.8,000/- x 12 x 18 x 70% = Rs.12,09,600/-. 17. The petitioner has suffered the amputation of the right lower limb, therefore, a sum of Rs.80,000/- is - 16 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 awarded to him under head of pain and suffering. A sum of Rs.75,000/- would be adequate compensation under the head loss of amenities in life. It can safely be said that petitioner was unable to resume his work atleast for a period of four months and therefore, a sum of Rs.8,000/- x 4 = 34,000/- is awarded to him under the head loss of income during laid up period. 18. The petitioner has produced medical bills to the tune of Rs.1,65,500/-. Hence, the same has to be awarded to him. Further, petitioner may require certain amount for prosthesis and as such, a sum of Rs.50,000/- is awarded to him towards future medical expenses, which will not carry any interest. The petitioner had taken treatment at Hyderabad and therefore, a sum of Rs.50,000/- is awarded under the head conveyance expenses, nourishment and attendant’s charges, etc. 19. In all, the petitioner is entitled for a sum of Rs. 16,64,100/- under following heads: - 17 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 Sl. No. Heads Award amount 1 Pain and sufferings Rs.75,000/- 2 Medical expenses Rs.1,65,500/- 3 Conveyance, nourishment and attendant’s charges Rs.50,000/- 4 Loss of future income on account of functional disability Rs.12,09,600/- 5 Loss of amenities in life Rs.80,000/- 6 Loss of income during laid up period Rs.34,000/- 7 Future medical expenses Rs.50,000/- Total Rs.16,64,100/- 20. In the result, the appeal deserves to be allowed. Hence, the following: ORDER i) The appeal is allowed. ii) The impugned judgment and award passed by the Tribunal dismissing MVC No.199/2016 is hereby set aside. iii) The petitioner-appellant is entitled for a sum of Rs.16,64,100/- along with interest at the rate of 6% per annum (excluding Rs.50,000/- awarded for future medical expenses), from the date of petition till realization. - 18 - NC: 2025:KHC-K:2178 MFA No. 201457 of 2019 iv) The respondent No.2 – Insurance Company is directed to deposit the compensation amount with interest as provided under Section 168(3) of M.V. Act, before the Tribunal. On such deposit being made, 40% of the compensation amount be deposited in a Fixed Deposit in any Nationalized Bank of the choice of the appellant-petitioner, for a period of three years and the balance amount be paid to him through his Bank Account after due identification. v) Send back the Tribunal Records along with the copy of this judgment. Sd/- (C M JOSHI) JUDGE SBS LIST NO.: 1 SL NO.: 58 CT: AK