- 1 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.202204/2018 (MV-I) C/W. MFA CROSS OBJ NO.200022/2023 (MV-I) IN MFA NO.202204/2018: BETWEEN: GAJENDRA S/O ASHOK KUMAR KAJOJI, AGE: 30 YEARS, OCC: BUSINESS, NOW NIL, R/O KOHINOOR VILLAGE, TQ. BASAVAKALYAN, DIST. BIDAR, NOW AFTER THE ACCIDENT SETTLED AT MAHAGAON, TQ. AND DIST. KALABURAGI. …APPELLANT (BY SRI NAGARAJ PATIL, ADVOCATE) AND: 1. BALAJI S/O DASHARATH RAO, AGE: MAJOR, OCC: OWNER OF VEHICLE, R/O KOHINOOR VILLAGE, TQ. BASAVAKALYAN, DIST. BIDAR-585 401. 2. UNITED INDIA INSURANCE CO. LTD., OFFICE NO. 25, DIVISIONAL OFFICE, M.G. ROAD, Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 BANGALORE, THROUGH ITS OFFICE AT JAWALI COMPLEX, P.B. NO.47, 1ST FLOOR, SUPER MARKET, KALABURAGI-585 102, POLICY NO. 070500/31/09/01/00018102. 3. D. CHANDRAKANTH S/O NIMAJIRAO, AGE: MAJOR, R/O H.NO. 21-4-353/2, GOISHA MANJIL, HYDERABAD-500 012. 4. CHOLAMANDALAM GENERAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ASIAN COMPLEX, HEAD POST OFFICE ROAD, SUPER MARKET, NEAR CITY BUS STAND, KALBURAGI-585 102. …RESPONDENTS (BY SRI S.S. ASPALLI, ADV., FOR R2; SRI SUBHASH MALLAPUR, ADV., FOR R4; R1-V/O DTD. 06.07.2021 NOTICE HELD SUFFICIENT; R3-V/O DTD. 06.07.2021, NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 07.04.2018 PASSED IN MVC NO.609/2010 ON THE FILE OF PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.13,47,603/- ONLY AS CLAIMED BY THE APPELLANT. - 3 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 IN MFA CROSS OBJECTION NO.200022/2023: BETWEEN: UNITED INDIA INSURANCE COMPANY, OFFICE NO. 25, POLICY NO. 070500/3109/01/000/18102, DIVISIONAL OFFICE, M.G. ROAD, BENGALURU-560 034. …CROSS OBJECTOR (BY SRI S.S. ASPALLI, ADVOCATE) AND: 1. GAJENDRA S/O ASHOK KUMAR KAJOJI, AGE: 30 YEARS, OCC: BUSINESS, NOW NIL, R/O KOHINOOR VILLAGE, TQ. BASAVAKALYAN, DIST. BIDAR, NOW AFTER THE ACCIDENT SETTLED AT MAHAGAON, TQ. AND DIST. KALABURAGI. 2. BALAJI S/O DASHARATH RAO, AGE: MAJOR, OCC: OWNER OF VEHICLE, R/O KOHINOOR VILLAGE, TQ. BASAVAKALYAN, DIST. BIDAR-585 401. 3. D. CHANDRAKANTH S/O NIMAJIRAO, AGE: MAJOR, R/O H.NO. 21-4-353/2, GOISHA MANJIL, HYDERABAD-500 012. 4. CHOLAMANDALAM GENERAL INSURANCE CO. LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, ASIAN COMPLEX, HEAD POST OFFICE ROAD, SUPER MARKET, NEAR CITY BUS STAND, KALBURAGI-585 102. …RESPONDENTS - 4 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 THIS MFA CROB. IS FILED UNDER ORDER 41 RULE 22 OF THE CPC, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 07.04.2018 IN MVC NO. 609/2010 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI, BY ALLOWING THE ABOVE CROSS OBJECTIONS. THIS APPEAL AND THE CROSS OBJECTIONS, COMING ON FOR FURTHER 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) Being aggrieved by the judgment and award in MVC No.609/2010 by learned Principal Senior Civil Judge and MACT Kalaburagi, dated 07.04.2018, the petitioner is in appeal before this Court and the respondent No.2 is before this Court in Cross-Objections. 2. The factual aspect that is relevant for these appeal and cross-objections are as below: a) The petitioner was traveling in Tata-Magic vehicle bearing No.KA-32/M-847 towards Basavakalyan and when the driver of the said vehicle drove the same in - 5 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 rash and negligent manner, a lorry bearing No.AP- 13/X-1719 came from the opposite direction and there was a collision between the vehicles, resulting in grievous injuries to the petitioner and other inmates of the Tata-Magic. Petitioner was shifted to the Government Hospital, Basavakalyan and thereafter he was shifted to Yashoda Hospital, Solapur. A case was registered against the driver of the Tata-Magic in Crime No.147/2009 of Basavakalyana Police Station. The owner and insurer of the Tata-Magic are arrayed as respondent Nos.1 and 2 and that of the lorry are arrayed as respondent Nos.3 and 4. The petitioner approached the Tribunal, contending that he was aged 22 years at the time of accident, was earning Rs.10,000/- per month by doing business of mobile phones and he having suffered disability, sought adequate compensation from the respondents. b) On service of notice, the respondent Nos.1 and 4 appeared through their counsels and filed written - 6 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 statements. The respondent Nos.2 and 3 did not appear and as such, they have been placed ex-parte. c) The respondent No.1 contended that the negligence was on the part of the lorry driver and the driver of the Tata-Magic was not responsible for the accident. The driver was holding valid driving licence and therefore, any liability has to be fastened upon the respondent No.2. d) The respondent No.4 contended that the accident was due to the negligence of the driver of respondent No.1 and there being no valid driving licence for the lorry driver, the liability, if any, has to be fastened upon the respondent No.3. e) On the basis of the above contentions, the Tribunal framed appropriate issues. The petitioner was examined as PW1 and Exs.P1 to P11 were marked. The Doctor who assessed the disability was examined as PW2. The official of the respondent No.4 was examined as RW1. - 7 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 f) After hearing the arguments, The Tribunal held that the respondent Nos.1 and 2 are liable and awarded a compensation of Rs.2,52,397/- under following heads: 1 Pain and sufferings Rs.40,000/- 2 Loss of amenities and enjoyment in life Rs.10,000/- 3 Loss of future income Rs.97,920/- 4 Medical expenses Rs.73,477/- 5 Attendant’s charges, food, nourishment and conveyance expenses Rs.13,000/- 6 Loss of income during period of treatment Rs.18,000/- Total Rs.2,52,397/- 3. Aggrieved by the said judgment, the petitioner, as well as the respondent No.2 are before this Court. 4. The submissions by learned counsels appearing for appellant, for cross-objector and for respondent No.4 were heard. Notice to respondent No.3 is dispensed with. 5. The learned counsel appearing for the petitioner/appellant submits that the compensation awarded by the Tribunal is on the lower side and the Tribunal has not - 8 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 appropriately considered the disability. He contends that the PW2 though stated that there is 25% disability, the Tribunal has considered the disability only at 8%. Therefore, he seeks for reassessment of the quantum of the compensation. 6. The learned counsel for the respondent No.2/ Cross-objector contends that there were several other claim petitions and the respondent No.2 has satisfied seven such claims of the inmates of the Tata-Magic arising out of the said accident. He submits that the permitted capacity of the vehicle was seven as per the policy and it having satisfied such claims, is not liable to pay the compensation in the present petition. His second prong of the argument is that the Co-Ordinate Bench of this Court in MFA Nos.200636 to 200638 of 2017 and three other connected matters which were decided by a common judgment dated 22.08.2024, has held that there was negligence on the part of the driver of the lorry owned by respondent No.3 also. It has determined such negligence of the lorry driver at 50%. Hence, he submits that the respondent Nos.3 and 4 are to be held - 9 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 liable for such contributory negligence. Regarding quantum, he defends the impugned judgment. 7. Learned counsel appearing for respondent No.4 would submit that the compensation amount determined by the Tribunal is proper and correct and there is no need to enhance the same. He fairly submits that this Court has found the liability of respondent No.4 at 50% in the connected matters. 8. The first aspect to be considered by this Court is regarding the quantum of the compensation amount. 9. The testimony of the PW2 would disclose that the petitioner had sustained head injury by way of lacerated wound over fronto parietal region and it was diagnosed as left frontal extra dural hematoma, he was inpatient from 10.12.2009 to 23.12.2009 and the nature of the treatment was conservative. The above findings about the injury are supported by the Wound Certificate at Ex.P6 and the hospital records at Exs.P9 and P10. Though, the Discharge Summery - 10 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 is not produced, the above documents show that there was head injury. 10. PW2 states that the petitioner is having migraine head ache, neck pain and unable to balance in one position for long, psycho somatic disturbances, black out of memories etc. However, the nature of the tests conducted by him for psychiatric disorders is not forthcoming. The PW2 states in his testimony and Disability Certificate at Ex.P11 that there is 25% disability to the whole body. Obviously, there being no justification for them and PW2 being a Doctor who did not treat the petitioner, the Tribunal has taken the disability at 8%. On a careful perusal of the testimony of the PW2, this Court is of the view that the functional disability of the petitioner is 10%. 11. The accident was in the year 2009, the Tribunal considered the notional income at Rs.6,000/-, which do not require any interference. Therefore, the compensation under the head of loss of income on account of the disability is - 11 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 calculated as Rs.6,000/- x 12 x 10% x 17 = Rs.1,22,400/- by adopting multiplier of ‘17’. 12. Consequently, the compensation under the head of loss of income during laid up period is calculated for four months at Rs.6,000/- x 4 = Rs.24,000/-. 13. Considering the nature of the injuries and its long lasting complications, the compensation under the head of pain and suffering is enhanced to Rs.50,000/- and that of loss of amenities in life is enhanced to Rs.40,000/-. 14. The compensation under the head of attendant’s charges, food, conveyance etc., deserved to be enhanced to Rs.15,000/- since he was inpatient for 13 days. 15. The compensation awarded under the head of medical expenses does not need any interference. 16. Hence, the petitioner is entitled for total sum of Rs.3,24,877/- under under: - 12 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 Sl. No. Heads Award by the Tribunal Award by this Court 1 Pain and sufferings Rs.40,000/- Rs.50,000/- 2 Medical expenses Rs.73,477/- Rs.73,477/- 3 Loss of income due to permanent physical disability Rs.97,920/- Rs.1,22,400/- 4 Conveyance, Food, nourishment and attendant’s charges Rs.13,000/- Rs.15,000/- 5 Loss of amenities in life Rs.10,000/- Rs.40,000/- 6 Loss of income during laid up period Rs.18,000/- Rs.24,000/- Total Rs.2,52,397/- Rs.3,24,877/- Less: Award by the Tribunal Rs.2,52,397/- Total enhancement Rs.72,480/- 17. So far as the negligence and liability are concerned, it is relevant to note that this Court in the judgment of MFA No.200636/2017 and connected matters has observed in Para 17 and 22 as below: “17. It is also not in dispute that in the other seven cases, in which United India Insurance Company has accepted its responsibility and satisfied the compensation, the owner of the Truck and its insurer, i.e., Cholamandalam General - 13 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 Insurance Company were not arrayed as respondents. It therefore follows that the question as to who was responsible for the accident was not even gone into in those seven claim proceedings. 22. It is no doubt true that the charge-sheet had been filed against the driver of the Tata Magic vehicle. But, since the best witness was the driver of the Truck who would be sitting at a vantage point and would have a clear vision of the manner in which the accident took place has not been examined, there is unfortunately a lack of clear evidence to come to the conclusion that only the driver of the Tata Magic was responsible for the accident. The presumption that a larger vehicle would be responsible for the accident and coupled with the fact that the damages have occurred only to the left side of the Tata Magic vehicle and the Truck, it is obvious that the accident occurred due to the negligence on the part of both Truck driver as well as the driver of the Tata Magic vehicle. As a consequence thereof, both the Insurer of Tata Magic vehicle as well as the Insurer of the Truck i.e., Cholamandalam General Insurance Company would be equally responsible for payment of compensation which becomes payable to the victims.” - 14 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 18. Thus, it was found that there was equal contributory negligence on the part of the respondent No.3 – Truck Driver. As such, the respondent No.4 was also held liable to pay the compensation. It is pertinent to note that the said finding of this Court is not disturbed. 19. The cross-objector/respondent No.2 herein has contended that he has satisfied seven claims arising out of the said accident, pertaining to the inmates of Tata-Magic. His contention was upheld by this Court in the above judgment as may be seen from Para 17. Therefore, the resultant effect would be that the insurers of both the vehicles will be liable for payment of the compensation amount in equal proportions and the cross-objector would be at liberty to recover the compensation paid in excess of seven cases from the insured/respondent No.1. Hence, the following: - 15 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 ORDER i) The appeal and the cross-objections are allowed in part. ii) The petitioner is entitled for a sum of Rs.72,480/- in addition to the compensation awarded by the Tribunal, along with interest at 6% per annum from the date of petition till its deposit. iii) The interse negligence of respondent Nos.1 and 3 is held at 50% each. The respondent No.2 having satisfied seven claims permissible under the policy, shall pay with liberty to recover the compensation amount from respondent No.1. iv) The respondent No.4 being insurer of respondent No.3 is liable to pay 50% of the entire compensation amount to the petitioner. - 16 - NC: 2025:KHC-K:2068 MFA No. 202204 of 2018 C/W MFA.CROB No. 200022 of 2023 v) Rest of the order passed by the Tribunal remain unaltered. Learned counsel Sri S.S. Aspalli is permitted to file Vakalat in MFA No.202204/2018 for respondent No.2, within a week with NOC of learned counsel Sri Mohammed Abdul Quayum. Sd/- (C.M. JOSHI) JUDGE SBS List No.: 1 Sl No.: 51 CT: AK