- 1 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201587 OF 2021 (MV-I) BETWEEN: THE BRANCH MANAGER, NATIONAL INS. CO .LTD., NO. 12-10-97/57, S.S. TOWER, 1ST FLOOR, GANDI CHOWK, NEAR PARAS GARDEN, RAICHUR, (NOW REPRESENTED BY AUTHORIZED SIGNATORY DIVISION OFFICE, STATION ROAD, KALABURAGI). …APPELLANT (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE) AND: 1. SHEKSHAVALI S/O M. KASHEEM SAB, AGE: 32 YEARS, OCC: ASST. TEACHER IN PRIVATE SCHOOL, R/O PWD CAMP, SINDHANUR, TQ. SINDHANUR, DIST. RAICHUR-586 101. 2. S. SHARAVANKUMAR GOUNDER S/O S. SATHYAVELU, AGE: MAJOR, OCC: DRIVER OF LORRY BEARING NO. TN-52/J-6977, R/O DEVARAPPAN PATTI, POST: IYYAMPALAYAM-624 204, BLOCK NAME ATHOOR, DIST. DINDIGUL, TAMILNADU STATE, INDIA. Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 3. RUKUMANI M. W/O MANI N., 154 SANNIYASIPATTY AGRAHARAM BRANCH, POST OFFICE, POST: SANKARI WEST, TQ. SANKARI, DIST. SALEEM-637 303, TAMIL NADU STATE. …RESPONDENTS (BY SRI. BASAVARAJ R. MATH, ADV. FOR R1; R2 AND R3 ARE SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD DATED 16.04.2021 IN MVC NO.261/2018 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AND MACT AT LINGASUGUR. THIS APPEAL 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) Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondent. - 3 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 2. Being aggrieved by the judgment and award in MVC No.261/2018 dated 16.04.2021 by the learned Senior Civil Judge & JMFC, Lingasugur (for short, ‘the Tribunal’), respondent No.3-Insurance Company is in appeal before this Court. 3. The factual matrix of the case is that, on 09.05.2017 at about 9:00 p.m. the petitioner was moving on his motorcycle for distribution of marriage card towards M.G.Circle at Sindhanur. Near the government hospital, a lorry bearing No.TN-52/K-6977 came from behind the petitioner in rash and negligent manner and dashed to the motorcycle resulting in the petitioner sustaining injuries. He was immediately taken to the government hospital at Sindhanur and thereafter to Vijayanagara Institute of Medical Sciences and thereafter to Tirumal hospital. The petitioner claimed that he was a teacher in a private school and drawing monthly income of Rs.25,000/- and as such, he is entitled for compensation of Rs.51,00,000/- from the owner and insurer of the lorry. - 4 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 4. On service of notice, the respondent Nos.1 and 2 did not appear despite service of notice and as such placed ex-parte. The respondent No.3-Insurance Company appeared and resisted the petition contending that there was no negligence on the part of the driver of the lorry and the driver did not have a valid and effective driving licence at the time of the accident; there were breach of terms and conditions of the policy and that the compensation claimed is highly exorbitant, imaginary and untenable. Therefore, sought for dismissal of appeal. 5. The Tribunal framed appropriate issues and the petitioner was examined as PW.1, the Doctor, who assessed his disability was examined as PW.2 and Exs.P1 to P.105 were marked in evidence. The official of the respondent No.3-Insurance Company was examined as RW.1 and Exs.R1 to 5 were marked. 6. After hearing the arguments, the Tribunal awarded compensation of Rs.7,74,494/- under the following heads: - 5 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 Sl.No. Heads Amount 1. Loss of future income due to disability. Rs.6,27,300/- 2. Loss of income during period of treatment. Rs.10,000/- 3. Pain and suffering. Rs.50,000/- 4. Medical expenses. Rs.72,194/- 5. Attendant charges, rest and nourishment. Rs.5,000/- 6. Transportation charges during the period of treatment. Rs.10,000/- Total Rs.7,74,494/- 7. Being aggrieved by the same, the respondent No.3-Insurance Company is in appeal before this Court. 8. The learned counsel appearing for the appellant-Insurance Company submits that the cross- examination of PW.1 shows that the lorry had come from the opposite direction, but in fact the entire police papers show that the lorry had come from behind the motorcycle of the petitioner. Therefore, it is contended that there is a diagonally contra view elicited in the cross-examination of the PW.1 casting a doubt about the accident itself. It is further pointed out that the MVI report at Ex.P4 shows that there were no damages at the back of the motorcycle - 6 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 of the petitioner and the three damages were noted to the front of the motorcycle. It is also pointed out that no damages were found on lorry. Therefore, it is contended that very involvement of the lorry in the said accident is doubtful. Added to this, it is pointed out that there is a delay of 1 day in filing the complaint. 9. Regarding the quantum of compensation amount, the learned counsel appearing for the petitioner would submit that the physical disability stated by PW.2 at 30% has been accepted by the Tribunal as the functional disability in calculating the compensation amount. The Tribunal has not bestowed its attention on the functional disability of the petitioner. It is pointed out that the petitioner contends that he was a Teacher in a private school, but no satisfactory evidence was led by him in this regard. It is submitted that the quantum of the compensation is also on the higher side and therefore, there is need for indulgence by this Court. - 7 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 10. Per contra, learned counsel appearing for respondent No.1-petitioner submitted that the accident was witnessed by the bystanders near the spot and it is they, who had admitted the petitioner to the hospital. Later, the brother of the petitioner was informed and he came to the hospital and then on the next day he lodged the complaint. It is contended that the complainant was not an eyewitness to the accident and therefore, it is the investigation, which shows that the lorry had come from behind and dashed to the motorcycle of the petitioner. He contends that the absence of any damage to the back of the motorcycle is ofcourse is not explained by the petitioner, but that would not negate the involvement of the lorry in the accident. He submits that despite there being certain discrepancies in the cross-examination of the PW.1 and the motor vehicle inspector’s report, the involvement of the lorry in the said accident cannot be denied by the appellant. It is pointed out that any incorrect investigation cannot be a ground to non-suit the petitioner since the injuries suffered by him in the accident - 8 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 involving the lorry owned by the respondent No.1 and insured by respondent No.2 has been established. 11. So far as the quantum is concerned, he defends the improved judgment stating that the functional disability assessed by the Tribunal at 30% is proper and though the petitioner had not produced any proof of his income since he was working in a private school and giving tuitions, he was unable to fetch any material to show his income. It is submitted that the nature of injuries suffered by the petitioner show that his right elbow has suffered severe damage resulting in the disability and as such he cannot use his right hand for his avocation. Under these circumstances, he seek the dismissal of the appeal. 12. The first aspect to be noticed by this Court is that, the FIR at Ex.P2 was lodged by the brother of the petitioner. The FIR discloses that when the petitioner was riding his motorcycle on the left side towards M.G.Circle, a lorry driver drove the same from behind and caused the accident. - 9 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 13. It is pertinent to note that the complaint was lodged by the one Shashavali, brother of the petitioner- Shekshavali. He got the information about the accident from one Syed Gilani Pasha. The complaint mention that immediately after the accident, the injured was taken to Government Hospital, Sindhagi and thereafter, to VIMS Hospital, Ballari, in an ambulance. Obviously, there was no time for him to lodge the complaint as he only visited Ballari and thereafter, on the next day he lodged the complaint. 14. The Spot Mahazar at Ex.P3 would show the sketch of the spot of the accident. Evidently, it is on the left side of the road while going towards M.G.Circle. The IMV report at Ex.P4 shows that there were no damages to the Lorry, but the motorcycle of the petitioner had damages to the front only. 15. The entire investigation papers or the chargesheet which is at Ex.P2 would show that the - 10 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 Investigating Officer has gone under the premise that the accident occurred when the lorry hit the motorcycle from behind. The same line of contention is also available in the petition as well as in the affidavit of the petitioner. In the cross- examination of the petitioner, it is elicited by the learned counsel for the Insurance Company that lorry came from front side suddenly and therefore, he fell down and sustained injury. The portion of the tyre of the lorry had run on the hand of the petitioner. He says that he was severely injured and he is unable to write on the blackboard due to the injury to the hand. Except this, there is nothing else which shows that the lorry had come from the front side. If the lorry had come from the front side of the petitioner, obviously, the lorry driver was at fault since it was a wrong side for him. This aspect would also show that the lorry driver was at fault. 16. It is pertinent to note that, the testimony of PW1 in the cross- examination and the IMV report are the only two circumstances which go in favour of the appellant - 11 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 herein. On the other hand, the entire investigation conducted by the Investigating Officer, including the FIR show that the lorry had come from behind the motorcycle of the petitioner. Even if we accept that the lorry had come from front of the petitioner, the negligence was on the part of the lorry driver since it was a wrong side for him. It is also worth to note that both of the versions, i.e., whether the lorry came from front of the motorcycle or from the back of the motorcycle, its involvement cannot be denied. A discrepancy in the manner in which the accident occurred cannot be a ground to discard the testimony of the petitioner and the investigation papers. 17. It must be observed by this Court that a case for compensation is to be assessed on the principles of preponderance of probability. It is not enough for the Insurance Company to bring forth a discrepancy in the testimony of PW1 and the version in the investigation. Such discrepancy has to be supported by a valid argument which is acceptable. In a criminal case, it would have been - 12 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 sufficient to create a doubt about the incident by citing the discrepancies or the two versions that was possible in an event. But that cannot be a case in a civil matter where the principles of preponderance of probability is applicable. The overwhelming evidence which is available on record albeit, the discrepancies regarding the manner of the accident had happened, point to a single fact that the lorry insured by the appellant was involved in the accident. In that view of the matter, the contention that the lorry was not involved in the accident cannot be accepted. 18. Coming to the quantum of the compensation, it is worth to note that the petitioner did not produce any document to show his income and therefore, the Tribunal accepted the notional income at Rs.10,250/- per month. The notional income is assessed on the basis of the guidelines issued by the KSLSA which cannot be said to be erroneous since it is in general conformity with the wages fixed under the Minimum Wages Act, for a skilled worker. - 13 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 19. So far as the disability is concerned, evidently, PW2 in his opinion has assessed the physical disability but not the functional disability. The functional disability has to be assessed by the Tribunal. Though the Tribunal has not in express words made an effort to translate the physical disability into functional disability, it accepts the physical disability of 30% as the functional disability of the petitioner. 20. Now this aspect has to be appreciated by this Court in the light of the avocation of the petitioner. In the cross- examination of PW1, it is elicited that the petitioner is unable to lift his right hand and to write on the blackboard. His avocation as a Teacher or the Tuition Giver is not denied. Therefore, accepting the avocation of the petitioner as a Teacher, the functional disability to his right hand needs to be reassessed. When the Tribunal has assessed the functional disability at 30%, though without much discussion on it, this Court feels that there is no need for any interference in the same. The petitioner is - 14 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 aged 30 years and therefore, the assessment of the functional disability at 30% cannot be interfered with. Under these circumstances, the quantum of the compensation arrived at by the Tribunal is also proper and no interference is required in the same. 21. However, the Tribunal has awarded the interest at the rate of 9% per annum from the date of petition till its realization and the same requires to be reduced to 6% per annum in view of the judgment of the Coordinate Bench of this Court in the case of Sriram General Insurance Company Limited Vs. Smt. Lakshmi and another rendered in MFA No.103557/2016 DD 20-03-2018. 22. In the result, the appeal deserves to be partly allowed and hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award passed by the Tribunal is modified. The rate of interest is - 15 - NC: 2025:KHC-K:1799 MFA No. 201587 of 2021 reduced from of 9% p.a., to 6% p.a. from the date of the petition till its realization. (iii) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith. (iv) Rest of the judgment of the Tribunal remain unaltered. Sd/- (C M JOSHI) JUDGE SDU.tsn* LIST NO.: 1 SL NO.: 49 CT: AK