- 1 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201714 OF 2021 (MV-I) BETWEEN: MALLIKARJUN S/O SAIBGOUDA RASANGI, AGE: 34 YEARS, OCC: GOUNDI WORK (NOW NILL), R/O FARHATABAD, TQ. AND DIST. KALABURAGI. …APPELLANT (BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE) AND: 1. MAHIBOOB S/O GUNDASAB, AGE: 49 YEARS, OCC: OWNER OF THE AUTO RICKSHAW, R/O ANDOLA, TQ. JEWARGI, DIST. KALABURAGI-585 310. 2. THE MANAGER, CHOLAMANDALAM GENERAL INSURANCE CO. LTD., R/O DARE HOUSE, 2ND FLOOR, NO.2, NSC BOSE ROAD, CHENNAI-600 001. …RESPONDENTS (BY SRI. MANJUNATH MALLAYYA SHETTY, ADV. FOR R2; R1-SERVED) R Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD DATED 12.02.2020, PASSED BY THE II-ADDL. SENIOR CIVIL JUDGE AND MACT AT KALABURAGI, IN MVC NO.756/2017 AND AWARD THE COMPENSATION AMOUNT AS CLAIMED BY THE APPELLANT. THIS APPEAL 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.756/2017 by learned II-Addl. Senior Civil Judge, Kalaburagi, the petitioner is before this Court in appeal, challenging the dismissal of the petition. 2. The factual matrix of the case as stated in the petition are that, on 01.10.2015 at about 8.00 p.m., while the petitioner was traveling from Farhatabad towards - 3 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 Andola in an Autorikshaw bearing No.KA-32/C-0549 which was driven by one Mahiboob, another person has boarded the said Autorikshaw at Jewargi. While the said Autorikshaw came near Bhutpur Kalyan Mantap, at Tata Sumo came from the opposite direction in high speed and in negligent manner and dashed to the Autorikshaw. The Autorikshaw turned turtle on the road. The Tata Sumo driver did not stop after the accident and went away. The petitioner and the inmate sustained injuries in the accident. Thereafter, the Autorikshaw driver also ran away from the spot. The petitioner and another inmate i.e Rudrayya Hiremath, who was unconscious were shifted to the Government Hospital in an Ambulance and thereafter, he was shifted to Basaveshwar Hospital at Kalaburagi. Later, it was found that the petitioner had sustained crush injury of his right arm and therefore, the right arm below the shoulder was amputated in the hospital. On the basis of the complaint filed by the petitioner, a case came to be registered by the Jewargi Police in Crime No.251/2015. Since the petitioner had alleged the rash and negligent - 4 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 driving to the Tata Sumo driver, the police investigated the matter and ultimately the Tata Sumo could not traced and therefore, they filed a ‘C’ summary charge sheet stating that the offender is not traced. During the investigation, the police have conducted the spot mahazar and had recorded the statements of some of the witnesses. 3. The petitioner contended that he was a mason by profession, earning Rs.20,000/- per month and due to the injury sustained in the accident, he has suffered total disablement and as such his future has become bleak. A claim petition came to be filed against the owner and insurer of the Autorikshaw. 4. On service of notice, the respondent No.1 owner-cum-driver of the vehicle remained ex-parte. The respondent No.2 insurance company filed a written statement contending that the accident had occurred due to the negligent driving of unknown Tata Sumo vehicle and therefore, the petition against the owner and insurer of the - 5 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 Autorikshaw is not maintainable. It further contended that though the Autorikshaw was insured with the respondent No.2, but it was subject to the condition that the driver of the Autorikshaw was holding a valid driving licence. Hence, it contended that the respondent No.2 is not liable to pay the compensation to the petitioner. Inter-alia it also disputed the quantum of compensation claimed by the petitioner and denied the age, income and occupation of the petitioner. 5. On the basis of the above contention, the Tribunal framed appropriate issues as below: 1. Whether the petitioner proves that on 01.10.2015 at about 8.00 PM, near cotton Mill, Tq. Jewargi, on Jewargi- Shahapur main road, petitioner met with an accident and sustained injuries due to rash and negligent driving by the driver of Autorickshaw bearing No.KA-32/C- 0549? 2. Whether the respondent No.2 proves that the driver of the offending vehicle was not holding valid and effective driving licence as on the date of the accident, thereby policy conditions are violated as such insurance company is not liable to pay compensation? - 6 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 3. Whether the petitioner is entitled for the compensation? If so, how much and from whom? 4. What order or award? 6. The petitioner was examined as PW1 and one witness was examined as PW2, Ex.P1 to 13 were marked. The official of the respondent No.2 deposed as RW1 and Ex.R1 to R3 were marked. 7. After hearing the argument, the Tribunal came to the conclusion that there was no such negligence on the part of the Autorikshaw driver and therefore, liability cannot be fastened upon the respondent No.1 and 2. Consequently, the petition came to be dismissed. Being aggrieved by the same, the petitioner is before this Court. 8. On the appeal being admitted, the said Tribunal records have been secured. The argument by learned counsel appearing for the appellant and learned counsel for the respondent No.2 are heard. - 7 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 9. The learned counsel appearing for the appellant would submit that the petitioner herein was inmate of the Autorikshaw and he had no role to play in contributing anything to the accident. He submits that for the petitioner the accident occurred due to the collision between the two vehicles and irrespective of who was at fault, he is entitled for the compensation. It is submitted that even though the petitioner himself has filed the complaint to the police alleging that there was a criminal negligence on the part of the driver of the Tata Sumo, whose name was unknown to him, it cannot be said that petitioner would be barred from claiming compensation against the owner and insurer of the Autorikshaw. It is contended that what was alleged in the police complaint against the Tata Sumo driver was a criminal negligence but not an actionable negligence and therefore, the Tribunal erred in dismissing the claim petition. In this regard, he relies upon the judgment of the Apex Court in - 8 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 the case of Union of India V/s Bhagwati Prasad (Dead) and others1. He submits that in the said accident, the petitioner has sustained an injury which resulted in amputation of his right hand above elbow and he being a mason by profession aged about 30 years has lost his livelihood permanently. He contended that the PW2 who assessed the disability has stated that such disability is 94%. Therefore, he contends that the functional disability of the petitioner has to be considered at 100%. He also submits that the petitioner is entitled for the compensation from the owner and insurer of the Autorikshaw. He also submit that it was a case of composite negligence so far as the petitioner is concerned and as such the judgment of the Apex Court in the case of Khenyei V/s New India Assurance Company Limited and others2, would come in play and as joint tort feasors, the respondent Nos.1 and 2 are liable. He also relies on 1 (2002) 3 SCC 661 2 (2015) 9 SCC 273 - 9 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 the judgment in the case of United India Insurance Co. Ltd., V/s Prabhu S/o Late Puttasway and others3. 10. Per contra, the learned counsel appearing for the respondent No.1 and 2 would submit that the petitioner himself had filed a complaint against the Tata Sumo driver and he had not raised any voice against the respondent No.1. Therefore, it is not open to the petitioner to contend that there was negligence on the part of the Autorikshaw driver. The negligence being the fundamental principle of any tort, there being no negligence on the part of the Autorikshaw driver, the impugned judgment is proper and correct. In this regard, he relies upon the judgment in the case of Nazeer Ahmed Abdul Raheem Shaikh and others V/s Sunil S/o Mablu Naik and others, rendered by Division Bench of this Court in MFA No.103229/2016. 11. The question that arise in this appeal is whether there was any actionable negligence on the part of 3 2019 SCC Online Kar 3603 - 10 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 respondent no.1 and he would be liable to pay the compensation through the respondent No.2 in view of the contractual liability with it. 12. It is worth to note that the concept of actionable negligence and culpable negligence are not properly appreciated by the Tribunal. In the fact and circumstances of this case, which is not in dispute to a greater extent, the petitioner was an inmate of Autorikshaw as a passenger. It was driven by respondent No.1. An unknown Tata sumo vehicle came from opposite direction and dashed to the Autorikshaw rendering it to turn turtle. The driver of Tata sumo did not stop and sped away. In the entire incident, the petitioner felt that the negligence on the part of the Tata Sumo driver, he lodged a complaint to the police as per Ex.P2. 13. In the said complaint, he clearly has stated that the accident was due to the negligence on the part of the Tata-Sumo driver and therefore, the Police registered a case against the Tata-Sumo driver and launched - 11 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 investigation. During investigation, the Police could not trace the Tata-Sumo and in the result, filed C-Summery Report to the concerned Criminal Court. It is pertinent to note that in the Spot Mahazar, which was conducted during the investigation on 02.10.2015, it was mentioned that the spot of the accident is on the western side of the road. The Autorickshaw was going from northern to southern side and the Tata-Sumo from southern to northern. Evidently, the spot of the accident suggests that the Autorickshaw driver has driven the same on his extreme right side. Even then, the Police came to the conclusion that the Tata-Sumo driver against whom a complaint was filed by the petitioner was not traced and ultimately they filed a C-Summary Report. The entire C- Summary Report does not explain the Spot Mahazar, which is at Ex.P4. 14. The above evidence in the form of police papers suggests that there was also some contributory negligence on the part of the driver of the Autorickshaw. - 12 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 15. Be that as it may. It is necessary to note that an actionable negligence is totally different concept than the culpable negligence. It may be true that the negligence which require a punitive action under the criminal law may amount to an actionable negligence. However, actionable negligence need not be a punitive for culpable negligence which entails a punitive action. The difference between actionable negligence and the culpable negligence is discussed elaborately in the judgment of this Court in the case of HANAMANT DUNDAPPA NARALE AND ANOTHER V/s. PANDURANG AND OTHERS in MFA No.200081/2022 D.D. 04.03.2025, wherein while discussing the actionable negligence it was observed as below: “15. It is settled proposition of law that the liability to pay compensation under tort arises out of the concept of actionable negligence. 16. An actionable negligence basically comprise of - 13 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 a) breach of duty of care owed to another person or entity, b) the duty of care requiring the person or entity to exercise reasonable care to prevent harm or injury to others, c) to establish actionable negligence, it must be shown that the breach of duty caused the harm or injury and d) the claimant must also show that he suffered damages as a result of breach of duty. 17. The culpable negligence, which is relevant for prosecuting agency comprise of a) gross or wanton breach of duty, which is more serious and egregious breach than actionable negligence, b) reckless disregard for the safety and wellbeing of others which is a higher level of intent than actionable negligence, c) conscious disregard to the safety and wellbeing of others, knowing that their actions could cause harm, d) culpable negligence can result in punitive damages which are designed to punish the - 14 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 wrong doer for their reckless and egregious behavior. 18. It may be noted that the degree of negligence, intent and the consequences are the key differences of actionable negligence and culpable negligence. A culpable negligence requires higher degree of proof as it results in a punishment to the wrong doer. Therefore if it is shown that a person failed to exercise any of the care as mentioned above, he would be liable to pay the compensation.” 16. Further, it is necessary to note that no where in the provisions relating to Sections 165 and 166 of the Motor Vehicles Act, the word ‘negligence’ is used by the legislature. It is the use of the vehicle which is of pivotal importance. This view is also reiterated by the Apex court in the case of UNION OF INDIA Versus BHAGWATI PRASAD (DEAD) AND OTHERS4 cited by the learned counsel for the appellant. In the said judgment, the Apex Court came to the conclusion that to invoke the provisions 4 (2002)3 Supreme Court Cases 661 - 15 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 of the Motor Vehicles Act, it would suffice that one of the tort feasors is a motor vehicle. It need not be necessary that the said tort feasor is contributor to the negligence. In the said judgment, the accident was due to the negligence of the Railway Authorities, who had not closed the level crossing gate while the car was passing through and the inmates of the Car have succumbed to the injuries. The Apex Court held that even though the Railway Administrative does not come within the purview of the Motor Vehicles Act, but the Tribunal, under the Motor Vehicles Act, has power to determine the compensation and fasten it against the Railway Authorities. Though this judgment is not directly applicable to the case on hand, it would suffice to say that the powers of the Tribunal could be invoked if one of the joint tort-feasors is a motor vehicle. 17. In the judgment rendered by the Apex Court in the case of Khenyei v. New India Assurance Co. Ltd.,5 5 (2015) 9 SCC 273 - 16 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 the concept of composite negligence is elaborately elucidated. It may be noted that a person who is an inmate of a vehicle, is at liberty to go against any one of the tort-feasors. Even if the driver of the vehicle in which he was traveling has contributed negligence in entirety, he is at liberty to go against any one of the tort-feasors. There need not be any determination in respect of the contributory negligence of the two tort-feasors, unless both the tort-feasors are party to lis. Therefore, for the petitioner it is a case of composite negligence and when he files a petition against owner and insurer of the vehicle, he could not have been non-suited by the Tribunal. 18. So far as the judgment relied by the learned counsel for respondent No.2 is concerned, it is worth to note that the concept of the composite negligence and actionable negligence were not discussed. Therefore, in view of conclusive decision in the matter by the Apex Court in the case of Khenyei v. New India Assurance - 17 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 Co. Ltd., as well as UNION OF INDIA Versus BHAGWATI PRASAD cited supra, the said citations are not applicable to the case on hand. In the result, the dismissal of the petition by the Tribunal is unsustainable. 19. Coming to the quantum of the compensation amount, the petitioner had sustained the injuries as mentioned in the Wound Certificate at Ex.P6 and the entire case-sheet of the Basaweshwar Teaching and General Hospital is produced at Ex.P13. On combined reading of these documents, it clearly shows that the petitioner had sustained closed injury to the right upper limb and above elbow amputation was conducted. In the result, the petitioner is left with an amputated right arm. The photographs of the petitioner at Ex.P12 also establish the same. 20. PW2 states that he has issued Disability Certificate as per Ex.P7. In Ex.P7 he states that there is loss of right upper limb and therefore, doing of the daily chores like feeding, clothing etc., are difficult and he has - 18 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 stopped going to the labour work. Ultimately, he states that amputation at the level of middle 3rd of right arm was seen and he needs prosthetic fitting for the right upper limb stump. He says that there is disability of 80% on account of the amputation and 4% on account of the loss of dominant extremity and 10% due to neuroma (sharp pain due to the amputation of nerve ending) and totally there is disability of 94%. 21. It is worth to note that the right hand being dominant extremity, loss of dominant extremity will result in functional disability. Petitioner aged 30 years claims that he was a Mason, but no documentary evidence is available on record. However, at the age of 30 years it cannot be said that he would remain without a job. Therefore, accepting that he was a Mason, the functional disability of the petitioner is taken at 80%. 22. In the absence of any documentary evidence to show the income of the petitioner, notional income has to be considered. The guidelines issued by the Karnataka - 19 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 State Legal Services Authority for settlement of the disputes before the Lok Adalat prescribe the notional income of Rs.8,000/- for the year 2010. In umpteen number of decisions, including SMT. MARIYAMMA AND OTHERS V/S SRI. SUYAMBULINGAM AND ANOTHER in MFA No.7404/2014 dated 06.12.2022, this Court has held that the guidelines issued by KSLSA are held to be acceptable on the ground that they are in general conformity with the minimum wages fixed under the Minimum Wages Act. Therefore, the notional income of the petitioner is accepted as Rs.8,000/- per month and by adding 40% of it, towards loss of future prospects the multiplicand would come to (8,000 + 3200) Rs.11,200/- per month. Thus, the loss of future income is calculated at Rs.11,200/- x 12 x 80% x 17 = Rs.18,27,840/-, by adopting multiplier of ‘17’ for the age of 30 years. 23. It can be safely said that petitioner was unable to resume his work as a normal person to the extent possible atleast for a period of six months. Therefore, the - 20 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 petitioner is entitled for (Rs.8,000/- x 6) Rs.48,000/- under the head of loss income during laid up period. 24. Having regard to amputation of the right arm, the petitioner is entitled for a sum of Rs.1,00,000/- under the head of pain and suffering and a sum of Rs.75,000/- under the head of loss of amenities in life. 25. The petitioner was inpatient for a period of 28 days as may be seen from the records of the Basaweshwar Teaching and General Hospital. Therefore, a sum of Rs.35,000/- is awarded under the head of conveyance, nourishment and attendant’s charges etc. 26. The hospital expenses and the medical bills produced at Ex.P10 shows that he has spent a sum of Rs.33,727/-, the same is rounded off to Rs.34,000/- and awarded to the petitioner. 27. In the Disability Certificate at Ex.P7 it is mentioned that there is note for the prosthesis. The testimony of the PW2 does not make any estimate of the - 21 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 prosthesis. Therefore, a sum of Rs.50,000/- is awarded to him towards the expenses of the artificial limb. 28. Accordingly, the petitioner is entitled for total compensation of Rs.21,69,840/- as below: Sl. No. Heads Award amount 1 Pain and suffering Rs.1,00,000/- 2 Medical Expenses Rs.34,000/- 3 Loss of future income Rs.18,27,840/- 4 Conveyance, nourishment and attendant’s charges Rs.35,000/- 5 Loss of income during laid up period Rs.48,000/- 6 Loss of amenities in life Rs.75,000/- 7 Expenses of the artificial limb Rs.50,000/- Total Rs.21,69,840/- 29. 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 is hereby modified. - 22 - NC: 2025:KHC-K:1935 MFA No. 201714 of 2021 (iii) The appellant-petitioner is entitled for Rs.21,69,840/- along with interest at the rate of 6% per annum, from the date of petition till realization before the Tribunal. (iv) In the event of such deposit, the 60% of the compensation amount with accrued interest be released in favour of the petitioner and balance amount with accrued interest be kept in Fixed Deposit in the name of the petitioner in any Nationalized Bank of the appellant’s chose, for a period of three years. Sd/- (C.M. JOSHI) JUDGE SMP, SBS List No.: 1 Sl No.: 62 CT: AK