- 1 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 1626 OF 2019 (MV-I) BETWEEN: MR B NITHYANANDA PAI S/O LATE RAYA PAI AGED ABOUT 56 YEARS RESIDING AT MAHALASA , 7TH BLOCK, BEHIND SHRI VISWANATHA TEMPLE KRISHNAPURA, SURATHKAL MANGALORE TALUK, D.K.DISTRICT PIN-575012 …APPELLANT (BY SRI. RAVISHANKAR SHASTRY G, ADVOCATE) AND: 1. M/S S P P TRANSPORTS PONNAYEEKADU, SHANKARI R S POST, SHANKARI TALUK, SALEM DISTRICT TAMIL NADU 2. UNITED INDIA INSURANCE CO LTD SHANMUGA COMPLEX, 1-15, 24-H, FIRST FLOOR, NEW EDAPADI ROAD, SANKARI RERPESENTED BY ITS DIVISIONAL MANAGER UNITED INDIA INSURANCE CO LTD, NAVABHARATH CIRCLE, RAMBHAVANA KODIALBAIL, MANGALORE TALUK D.K.DISTRICT PIN-575003 3. MR C SUNDARAM MAJOR 1/6038, MANGALA LAYOUT Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 URLANDY PUTTUR, PUTTUR TALUK, D.K.DISTRICT PIN 574201 4. THE NATIONAL INSURANCE CO. LTD., 3, MIDDLETON STREET POST BOX NO.9229, KOLKATTA RERPESENTED BY DIVISIONAL MANAGER THE NATIONAL INSURANCE CO LTD 2ND FLOOR, BHARATH BUILDING, P.M.ROAD, MANGALORE TALUK, D.K. DISTRICT PIN-575003 …RESPONDENTS (BY SRI JWALA KUMAR, ADVOCATE FOR R2; R1 IS SERVED; SRI K.N.SRINIVASA, ADVOCATE FOR R4; VIDE ORDER DATED 19.01.2024, NOTICE TO R3 IS HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.10.2018 PASSED IN MVC NO.950/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT- II, MANGALURU.D.K, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT The present appeal is filed under Section 173(1) of the Motor Vehicles Act, 19881 by the claimant calling in question the judgment and award dated 05.10.2018 1 Hereinafter referred to as 'MV Act' for short - 3 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 passed in MVC No. 950/2015 by the I Additional District Judge & II Additional Motor Accident Claims Tribunal-II, Mangaluru (DK)2. 2. The parties are referred to as per their rank before the Tribunal for the sake of convenience. 3. The relevant facts in nutshell leading to the present appeal are that the claimant, claiming compensation for the injuries sustained in a road traffic accident which occurred on 18.01.2015, filed a claim petition contending, inter alia, that when he was riding his motorcycle, a tanker lorry came at a high speed, in a rash and negligent manner and hit the claimant from behind causing the accident in question. In the claim proceedings, the earlier owner and the insurer of the tanker lorry were arrayed as respondent Nos.1 and 2 respectively, before the Tribunal. The owner and the insurer of the offending tanker lorry as on the date of 2 Hereinafter referred to as 'Tribunal' for short - 4 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 accident were arrayed as respondent Nos.3 and 4 before the Tribunal. Respondent Nos.2 and 4 filed their statement of objections. Respondent No.4-insurer of the lorry denied the assertions made in the claim petition as also contended that the driver of the lorry did not possess a valid and effective Driving License to drive the class of vehicle at the time of the accident. 4. The claimant examined himself as PW.1, his employer as PW.2 and the Doctor as PW.3. The RTO was examined as RW.1 and the representative of respondent No.4-insurer was examined as RW.2. 5. The Tribunal has recorded a finding that the claimant was responsible for causing the accident to the extent of 50% and the driver of the tanker lorry was responsible for causing the accident to the extent of 50%. Further, the Tribunal held that the driver of the insured tanker lorry did not have an effective Driving Licence as on the date of the accident to drive the insured vehicle, since - 5 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 the Driving Licence of the driver did not have an endorsement permitting him to drive a hazardous vehicle. Hence, the Tribunal although assessed the total compensation payable as `9,42,168/-, awarded a total compensation of `4,71,100/- together with interest at the rate of 9% p.a., and directed the respondent No.3-owner of the tanker to pay the compensation awarded. The claim petition as against respondent Nos.1, 2 and 4 were dismissed. Being aggrieved, the claimant has filed the above appeal challenging the findings of the Tribunal on negligence, liability as also seeking for enhancement of the quantum of compensation. 6. Sri. G. Ravishankar, learned counsel appearing for the appellant-claimant contends that the finding of the Tribunal on negligence is erroneous inasmuch as the Tribunal held that the Motorcycle was not plying on the lane prescribed for two wheelers. That the Tribunal erred in not noticing the fact that the charge sheet is filed against the driver of the tanker lorry and having regard to - 6 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 the fact that the tanker lorry hit the claimant from behind, negligence ought to have been attributed entirely to the driver of the tanker lorry. With regard to negligence, it is contended that respondent No.4-insurer has not proved by adducing adequate evidence that the insured tanker lorry was carrying hazardous goods at the time of accident and hence contended that the finding of the Tribunal exonerating the insurer from payment of compensation and fastening the liability to pay the compensation on the owner of the vehicle is erroneous and liable to be interfered with. It is further contended that the quantum of compensation awarded is on the lower side and the same is liable to be enhanced. 7. Sri. Jwala Kumar, learned counsel appearing for respondent No.2-insurer submits that the Tribunal has rightly dismissed the claim petition against respondent No.2, who was the earlier insurer of the tanker lorry. - 7 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 8. Sri. K. N. Srinivasa, learned counsel appearing for respondent No.4-insurer of the tanker lorry vehemently justifies the findings of the Tribunal on negligence, liability and also contends that the quantum of compensation awarded, is just and proper. Hence, he seeks for dismissal of the above appeal. 9. The submissions of the learned counsels have been considered and the material on record, including records of the Tribunal, has been perused. The questions that arise for consideration are: (i) Whether the finding recorded by the Tribunal on negligence is just and proper? (ii) Whether the Tribunal was justified in exonerating the respondent No.4-insurer from payment of compensation and fastening the liability on respondent No.3- owner of the vehicle? (iii) Whether the quantum of compensation as also interest awarded is just and proper? - 8 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 Re. Question No.(i): 10. It is the specific case of the claimant that when he was riding his motorcycle on the correct side of the road and when he had slowed down while he was approaching a speed breaker, the driver of the insured tanker lorry who was driving the said vehicle in a rash and negligent manner came from behind and hit the motorcycle of the deceased which caused the accident in question. Respondent No.4 – insurer, in the statement of objections filed before the Tribunal has denied the assertion that the accident was caused due to the rash and negligent driving of the driver of the insured tanker lorry and has further asserted that the claimant was responsible for causing the accident in question. 11. The claimant examined himself as PW.1 and produced the relevant police records including FIR (Ex.P1), spot mahazar (Ex.P7), spot sketch (Ex.P8) and copy of the - 9 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 charge sheet (Ex.P9). Respondent No.4-insurer apart from examining its official as RW.2 did not examine the driver of the lorry or any other eye witness. 12. The Tribunal considering the material on record, while appreciating the cross-examination of PW.1 as to the spot of the accident as also the spot mahazar (Ex.P7) has recorded a finding that the said document "leads to the inference that the motorcycle was not plying in the lane prescribed for two wheelers". The Tribunal further held that the motorcycle was plying almost in the middle of the road and that the claimant "even after looking at the tanker lorry coming from his hind side at a distance of 20 feet, he has not bothered to give way to the said vehicle carrying hazardous substance". The said finding recorded by the Tribunal is erroneous and liable to be interfered with inasmuch as the claimant was riding the motorcycle on the left side of the road (i.e., his correct side of the road). Further in the road, there is no prescribed lane for two wheelers. The charge sheet has been filed against the - 10 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 driver of the insured tanker lorry. The claimant who examined himself as PW.1 was also an eye witness to the accident and he has deposed as to the fact that when he approached the speed breaker and slowed down for the same, the tanker lorry hit the motorcycle of the claimant from behind. It is clear from the said aspect of the matter that the claimant was required to slow down due to the presence of the speed breaker on the road and the driver of the tanker lorry was also required to slow down for the same. The driver of the tanker lorry not having done so, having hit the motorcycle of the claimant from behind, as also due to the fact that the police authorities, after investigation, have filed the charge sheet against the driver of the tanker lorry, also keeping in mind the fact that neither the driver of the tanker lorry nor any other eye witness have been examined, the finding of the Tribunal holding that the claimant is also negligent to the extent of 50% causing accident is erroneous and liable to interfered with. It is required to be held that the driver of - 11 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 the insured tanker lorry is entirely negligent in causing the accident in question and accordingly, question No.(i) is answered in the negative. Re. Question No.(ii): 13. The insurer has taken a specific contention in the statement of objections that the driver was not duly licensed to drive the offending tanker lorry as on the date of the accident. The representative of the insurer (RW.2) has deposed that the driver who was driving the insured tanker lorry did not possess a valid Driving License to drive the said class of vehicles at the time of accident. Hence, it was contended that respondent No.4-insurer is not liable to indemnify respondent No.3-owner. 14. The RTO Chickamagaluru was examined as RW.1, who has deposed that the driver of the tanker lorry did not have a valid Driving License to drive the tanker lorry which is a hazardous goods vehicle. The Driving License extract (Ex.R1) was relied upon in justification of - 12 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 the said contention. It is evident from Ex.R1 that the driver of the lorry was authorised to drive a transport vehicle from 24.12.1996. RW.1 in the cross-examination admits that the driver of the tanker was authorised to drive a Heavy Goods Vehicle3. 15. It is the vehement contention of the learned counsel for respondent No.4- insurer that the driver did not have the endorsement in the license authorising him to drive a hazardous goods. In response, learned counsel for the claimant relying upon the Division Bench judgment of this Court in the case of Vijaya Kumari Vs. Kalpana4 contends that the insurer did not adduce any evidence to show that the offending tanker was carrying hazardous substance at the time of the accident and hence, the insurer is liable to pay the compensation awarded. 16. Apart from examining its officer as RW.2 and the RTO as RW.1 as well as producing the Driving License 3 hereinafter referred to as 'HGV' for short 4 MFA No.3697/2015 - 13 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 extract (Ex.R1) as noticed above, the insurer has not produced any material on record to demonstrate that hazardous substance was being carried in the insured vehicle at the time of accident. Although it is the vehement contention of the learned counsel for the insurer that the said aspect is forthcoming from the police records, no specific material has been placed on record with regard to the same. It is also relevant to notice that even in the testimony of RWs.1 and 2, the said aspect of the matter i.e., the fact that the insured vehicle was carrying the hazardous substance at the time of occurrence of the accident has not been adverted to. 17. A Division Bench of this Court in the case of Vijaya Kumari4 , while considering a similar situation, has held as follows: ” 8. ……………. The insurer contended that the driver did not possess the licence to drive the Tanker as required under Section 14(2) of the Act and thereby there is breach of policy condition. The insurer did not even produce the policy in evidence. Secondly he did not adduce any evidence to show that the offending Tanker was carrying the petrol at the time of the accident.” - 14 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 18. Having regard to the settled proposition of law as held by the Division Bench of this Court in the case of Vijaya Kumari4, it is to be held that the insurer has not proved that the insured tanker lorry was carrying hazardous goods as on the date of the accident. Accordingly, the finding recorded by the Tribunal exonerating the insurer from payment of compensation is erroneous and interfered with. 19. From the facts discussed above, it is required to be held that in view of the fact there was a valid policy of the insurance at the time of accident, the owner and insurer of the offending tanker lorry (respondent Nos.3 and 4) are jointly liable to pay the compensation awarded and the insurer-respondent No.4 is liable to deposit the compensation awarded together with accrued interest. Hence, question No.(ii) is answered in the negative. - 15 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 Re. Question No.(iii): 20. The claimant was aged about 52 years as on the date of the accident. The claimant was stated to be employed as a traffic controller with the Karnataka State Road Transport Corporation5. The claimant has sustained fracture of the distal tibia and fibula bones of the left leg as is forthcoming from the wound certificate (Ex.P5) and Discharge Summaries (Exs.P10 to P13). It is forthcoming that the claimant was treated as an inpatient on three different occasions for a total period of 79 days. The representative of the employer of the claimant has produced the pay slip (Ex.P17) and leave particulars (Exs.P18 and P25) of the claimant as well as the copy of the leave Registers (Ex.P26), the appointment order (Ex.P16) and promotion order (Ex.P27). 21. The Tribunal, considering the material on record has rightly held that the claimant has continued to work as 5 Hereinafter referred to as 'KSRTC' for short - 16 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 a traffic controller and that PW.2 has admitted that the claimant has produced fitness certificate and reported back to duty and continues to work. Although, it is the vehement contention of the learned counsel for the claimant that the claimant has been given a lighter job, which has resulted in loss of income, it is pertinent to note that the Tribunal after noticing materials on record has held that the claimant has not suffered in any manner vis- à-vis his employment, having regard to the injuries sustained in the accident. The Tribunal has also rightly noticed that the number of days that the claimant did not report for duty and after considering the material on record has awarded adequate compensation for loss of pay towards loss of income for 340 days at the rate of ````25,226.62/- per month, which is just and proper. 22. The compensation awarded by the Tribunal in a sum of `4,70,268/- towards medical expenses, `91,000/- towards conveyance, nutritious food and attendant charges, `2,85,900/- towards loss of income and - 17 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 `25,000/- towards future medical expenses is just and proper. 23. Having regard to nature of injuries sustained, the compensation towards pain and sufferings is reassessed as `50,000/- as against `30,000/- awarded by the Tribunal. 24. Having regard to the nature of injuries sustained, the compensation towards loss of amenities in life is reassessed as `50,000/- as against `40,000/- awarded by the Tribunal. 25. Hence, the reassessed compensation will amount to `9,72,168/-. The claimant is entitled for enhanced compensation of (`9,72,168/- - `9,42,168/-) `30,000/-. 26. Although, the interest awarded at 9% is on the higher side, it is the vehement contention of the learned counsel for the claimant that there is no appeal either by - 18 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 the owner or by the insurer in that regard. Having regard to the fact that the liability is being fastened on the insurer by virtue of the order in the present appeal, keeping in mind the fact that the insurer, not having been fastened with the liability to pay the compensation awarded by the Tribunal and hence was not aggrieved by the judgment and award of the Tribunal, it is just and proper that, taking judicial notice of the interest awarded towards fixed deposits, the interest awarded by the Tribunal be re-assessed as 7% p.a. Question No.(iii) is answered in the negative. 27. Hence, the following: O R D E R (i) The appeal is partly allowed; (ii) The judgment and award dated 05.10.2018 passed in MVC No. 950/2015 by the I Additional District Judge & II Additional Motor Accident Claims Tribunal, Mangaluru (DK), is modified to the extent of holding that the claimant shall be - 19 - HC-KAR NC: 2025:KHC:26702 MFA No. 1626 of 2019 entitled to a total compensation of `9,72,168/- together with interest at 7% p.a. on `9,47,168/- (excluding `25,000/- towards future medical expenses) from the date of petition till the date of deposit; (iii) The insurer (respondent No.4 in the present appeal/respondent No.4 before the Tribunal) shall deposit the compensation together with accrued interest within a period of six weeks. Consequent to deposit, the disbursement of the compensation shall be in terms of the judgment and award of the Tribunal; (iv) In all other respects the judgment and award of the Tribunal shall remain unaltered; (v) Registry to draw the modified award accordingly; (vi) Records of the Tribunal be transmitted to the Tribunal forthwith. No costs. Sd/- (C.M. POONACHA) JUDGE VBS/List No.: 1 Sl No.: 26