- 1 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE H.P.SANDESH AND THE HON'BLE MR. JUSTICE T.M.NADAF MISCL. FIRST APPEAL NO.201481 OF 2022 (MV-I) C/W MISCL. FIRST APPEAL NO. 200244 OF 2022 (MV-I) MISCL. FIRST APPEAL NO. 200247 OF 2022 (MV-D) MISCL. FIRST APPEAL NO. 200248 OF 2022 (MV-D) MISCL. FIRST APPEAL NO. 201371 OF 2022 (MV-D) MISCL. FIRST APPEAL NO. 201375 OF 2022 (MV-D) IN MFA NO.201481/2022: BETWEEN: KEMPAYYA S/O MADEV KATABAR, AGE: 32 YEARS, OCC: FISHERY, R/O. KOLHAR, TQ. BASAVAN BAGEWADI, DISTRICT, VIJAYAPURA-586 210. …APPELLANT (BYSRI. BAPUGOUDA SIDDAPPA, ADVOCATE) AND: 1. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTED OF THE Digitally signed by REKHA R Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS DECEASED SMT. GEETA W/O RAJU KATABAR, AGE: 32 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. BASAVANA BAGEWADI, DIST. VIJAYAPURA-586 210. 2. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEVI PRESS, NEW COTTON MARKET, HUBLI-580 020. 3. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 34 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, TQ. BASAVANA BAGEWADI, DIST. VIJAYAPURA-586 203. 4. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, 1ST FLOOR, SANGAM BUILDING, S.S. ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY SRI. MANVENDRA REDDY, ADV. FOR R4; SRI. SUDARSHAN M., ADV. FOR R2; R1 AND R3 - SERVED) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO A) CALL FOR THE RECORDS. B) TO MODIFY THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED IN MVC NO.484/2017 ON THE FILE OF THE COURT OF THE IV ADDL. DIST. AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT VIJAYAPURA. AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.46,26,603/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON’BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL. - 3 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS IN MFA NO.200244/2022: BETWEEN: THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, 1ST FLOOR, SANGAM BUILDING, S.S. FRONT ROAD, VIJAYAPURA-586 101, THROUGH ITS AUTHORISED OFFICER, VIJAYAPURA-586 101. …APPELLANT (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: 1. KEMPAYYA S/O MADEV KATABAR, AGE: 32 YEARS, OCC: FISHERY, R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101. 2. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTATIVE, SMT. GEETA W/O RAJU KATABAR, AGE: 28 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. B. BAGEWADI-586 101, DIST. VIJAYAPURA (OWNER OF CAR No.KA-28/P-1588). 3. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEVI PRESS, NEW COTTON MARKET, HUBBALLI-580 009. 4. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 30 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, - 4 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101. (OWNER OF VEHICLE No. KA-28/B-1372). …RESPONDENTS (BY SRI. BAPUGOUDA SIDDAPPA, ADV. FOR R1; SRI. SUDARSHAN M., ADV. FOR R3; R2 AND R4 - SERVED) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED BY THE MEMBER, MACT No.XIII, VIJAYAPURA IN MVC No.484/2017 BY ALLOWING THE APPEAL AS PRAYED FOR. IN MFA NO.200247/2022: BETWEEN: THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, 1ST FLOOR, SANGAM BUILDING, S.S. FRONT ROAD, VIJAYAPURA-586 101, THROUGH ITS AUTHORISED SIGNATURE. …APPELLANT (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: 1. SMT. ANITA W/O RAMAPPA @ RAMANNA KATABAR, AGE: 45 YEARS, OCC: HOUSEWIFE, 2. VITAL S/O RAMAPPA @ RAMANNA KATABAR, AGE: 27 YEARS, OCC: STUDENT, 3. DEEPA D/O RAMANNA @ RAMANNA, AGE: 19 YEARS, OCC: STUDENT, - 5 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS ALL ARE R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101. 4. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTATIVE SMT. GEETA W/O RAJU KATABAR, AGE: 33 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF CAR No. KA-28/P-1588). 5. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEVI PRESS, NEW COTTON MARKET, HUBBALLI-580 009. 6. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 34 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF VEHICLE NO.KA-28/B-1372). …RESPONDENTS (BY SRI. BAPUGOUDA SIDDAPPA, ADV. FOR R1 TO R3; SRI. SUDARSHAN M., ADV. FOR R5; R4 AND R6 - SERVED) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED BY THE MEMBER, MACT No.XIII, VIJAYAPURA IN MVC No.485/2017 BY ALLOWING THE APPEAL AS PRAYED FOR. IN MFA NO.200248/2022: BETWEEN: THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, 1ST FLOOR, - 6 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS SANGAM BUILDING, S.S. FRONT ROAD, VIJAYAPURA-586 101, THROUGH ITS AUTHORISED SIGNATORY. …APPELLANT (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: 1. SMT. KOUSARPATEL W/O MOHAMMAD PATEL KHANAVAR, AGE: 29 YEARS, OCC: HOUSEWIFE, 2. ABRAR S/O MOHAMMAD PATEL KHANAVAR, AGE: 09 YEARS, OCC: NIL, 3. ZOYA D/O MOHAMMAD PATEL KHANAVAR, AGE: 07 YEARS, OCC: NIL, RESPONDENT NOS.2 AND 3 ARE MINORS, SINCE REPRESENTED BY THEIR NATURAL MINOR GUARDIAN MOTHER RESPONDENT No.1. 4. USMAN PATEL S/O MAHEBOOB PATEL KHANAVAR, AGE: 60 YEARS, OCC: AGRICULTURE, 5. NOORJAHAN W/O USMAN PATEL KHANAVAR, AGE: 58 YEARS, OCC: HOUSEWIFE, ALL ARE R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101. 6. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTATIVE SMT. GEETA W/O RAJU KATABAR, AGE: 28 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF CAR No.KA-28/P-1588). 7. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., - 7 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEVI PRESS, NEW COTTON MARKET, HUBBALLI-580 009. 8. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 35 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF VEHICLE No. KA-28/B-1372). …RESPONDENTS (BY SRI. BAPUGOUDA SIDDAPPA, ADV. FOR R1 TO R5; SRI. SUDARSHAN M., ADV. FOR R7; R2 AND R3 ARE MINORS U/G OF R1) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED BY THE MEMBER, MACT No.XIII, VIJAYAPURA IN MVC No.483/2017 BY ALLOWING THE APPEAL AS PRAYED FOR. IN MFA NO.201371/2022: BETWEEN: 1. SMT. KOUSARPATEL W/O MOMAMMED PATEL KHANAVAR, AGE: 29 YEARS, OCC: HOUSEWIFE, 2. ABRAR S/O MOHAMMED PATEL KHANAVAR, AGE: 07 YEARS, OCC: NIL, 3. ZOYA D/O MOHAMMAD PATEL KHANAVAR, AGE: 06 YEARS, OCC: NIL, (APPELLANT No.2 AND 3 ARE MINORS SINCE REPRESENTED BY THEIR NATURAL MINOR GUARDIAN MOTHER APPELLANT No.1). 4. USMAN PATEL S/O MAHEBOOB PATEL KHANAVAR, AGE: 60 YEARS, OCC: AGRICULTURE, - 8 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 5. NOORJAHAN W/O USMAN PATEL KHANAVAR, AGE: 54 YEARS, OCC: HOUSEWIFE, ALL ARE R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 210. …APPELLANTS (BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE) AND: 1. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTED OF THE DECEASED SMT. GEETA W/O RAJU KATABAR, AGE: 32 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF CAR No.KA-28/P-1588). 2. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEV PRESS, NEW COTTON MARKET, HUBLI-580 020. 3. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 34 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 203. 4. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, 1ST FLOOR, SANGAM BUILDING, S.S. FRONT ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY SRI. SUDARSHAN M., ADV. FOR R2; SRI. MANVENDRA REDDY, ADV. FOR R4; R1 AND R3 - SERVED) - 9 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO A) CALL FOR THE RECORDS. B) TO MODIFY THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED IN MVC NO.483/2017 ON THE FILE OF THE COURT OF THE IV ADDL. DIST. AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT VIJAYAPURA. AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.19,10,000/- ONLY AS CLAIMED BY THE APPELLANTS BEFORE THIS HON’BLE Court. C) ORDER FOR COSTS OF THIS APPEAL. IN MFA NO.201375/2022: BETWEEN: 1. SMT. ANITA W/O RAMAPPA @ RAMANNA KATABAR, AGE: 45 YEARS, OCC: HOUSEWIFE, 2. VITAL S/O RAMAPPA @ RAMANNA KATABAR, AGE: 27 YEARS, OCC: STUDENT, 3. DEEPA D/O RAMAPPA @ RAMANNA KATABAR, AGE: 19 YEARS, OCC: STUDENT, ALL ARE R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 210. …APPELLANTS (BY SRI. BAPUGOUDA SIDDAPPA, ADVOCATE) AND: 1. RAJU S/O SAKARAM KATABAR SINCE DIED LEGAL REPRESENTED OF THE DECEASED SMT. GEETA W/O RAJU KATABAR, AGE: 32 YEARS, OCC: HOUSEWIFE, R/O. KOLHAR, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 101, (OWNER OF CAR No.KA-28/P-1588). - 10 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 2. THE MANAGER CLAIMS, ROYAL SUNDARAM GENERAL INSURANCE LTD., 102 AND 103, CENTRE POINT, FIRST FLOOR, OPP. TO SANJEEV PRESS, NEW COTTON MARKET, HUBLI-580 020. 3. NAGAPPA S/O NEELAPPA DALAWAI, AGE: 34 YEARS, OCC: BUSINESS, R/O. KUBAKADDI, TQ. B. BAGEWADI, DIST. VIJAYAPURA-586 203. 4. THE DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE, 1ST FLOOR, SANGAM BUILDING, S.S. FRONT ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; SRI. MANVENDRA REDDY, ADV. FOR R4; R1 AND R3 - SERVED) THIS MFA IS FILED U/S 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO A) CALL FOR THE RECORDS. B) TO MODIFY THE JUDGMENT AND AWARD DATED 16.06.2021 PASSED IN MVC NO.485/2017 ON THE FILE OF THE COURT OF THE IV ADDL. DIST. AND SESSIONS JUDGE AND MEMBER MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XIII, VIJAYAPURA AT VIJAYAPURA. AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION AMOUNT OF RS.27,40,000/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON’BLE COURT. C) ORDER FOR COSTS OF THIS APPEAL. THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH AND HON'BLE MR. JUSTICE T.M.NADAF - 11 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE T.M.NADAF) These six appeals, three by the insurer and three by the claimants, calling in question the judgment and award passed by the Tribunal by a common judgment, dated 16.06.2021 in MVC No.483/2017, 484/2017 and 485/2017, on the ground of liability by the insurer and quantum by the claimants. 2. The date of accident, involvement of vehicle, death of Mohammad Patel Khanavar and Ramappa @ Ramanna Katabar and the injuries suffered by Kempayya are not in dispute. The only dispute is in respect to 40% contributory negligence saddled on the Bolero vehicle, which was stationed in the middle of the road without observing any Traffic Rules as per the Tribunal. With this contention the appellant-insurer is before this Court, calling in question the liability on the ground that the owner of the vehicle to whom notice has been issued by the Company seeking for particulars of Driving License (for - 12 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS short ‘DL’) has not furnished the DL. In those circumstances, the company is not liable to pay the compensation saddled on it. So far as the claimants/appellants are concerned, they are before this Court, calling in question the quantum of compensation awarded in the case of injury, as well as death. 3. Heard Sri.Manvendra Reddy, learned counsel appearing for the appellant/insurance company in all the appeals in MFA.No.200244/2022, MFA.No.200247/2022, MFA.No.200248/2022 and Sri.Bapugouda Siddappa, learned counsel appearing for appellants in MFA.No.201481/2022, MFA.No.201371/2022 and in MFA.No.201375/2022 and Sri.Sudarshan, learned counsel appearing for respondent No.2/the insurer of Maruti Swift car. The other respondents though served are remained unrepresented. 4. Sri. Sri.Manvendra Reddy, in all the appeals by the insurer, with all vehemence submits that the Tribunal, while fastening the liability on the insurance company held - 13 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS that the offending Bolero vehicle was stationed in the middle of the road without observing any traffic signals and was the reason for the Maruthi Swift which came from rear in the same direction and collided with the said vehicle. 5. He further submits that, the Tribunal at paragraph No.23 of its judgment has given a finding that, the witness examined on behalf of the insurance company has admitted that no notice was given to the driver. Further the witnesses has admitted that the driver and owner are one and the same and there is no need to issue separate notice and they have not made any attempt to get DL particulars from the RTO Department and they have not issued any notice to the RTO for production of DL. On these admissions in the cross-examination of respondent No.1, the Tribunal held that respondent No.4 has not made any effort to secure the DRIVING LICENCE particulars. As such, the testimony of respondent No.1 is - 14 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS not corroborated by any documentary evidence to prove its defence on Issue No.2. 6. With this, the learned counsel appearing for the appellant - insurance company submitted that the Tribunal failed to appreciate the evidence placed on record. The insurance company has produced the notice issued to the owner of the Bolero vehicle calling upon to produce the DL particulars of the vehicle. The notice was served on the owner of the vehicle and he appeared before the Court and filed statement of objections, however, not produced the DL particulars in the case. In these circumstances, fastening the liability to pay the compensation, at the rate of 40% contributory negligence saddled on the Bolero vehicle, on the insurance company is unsustainable and requires to be set-aside, exonerating the insurance company from making good the compensation awarded. Accordingly, sought to allow all the appeals and set-aside the finding, directing the insurance company to pay 40% liability saddled on the owner of the Bolero vehicle, which - 15 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS was alleged to be stationed unattended in violation of Traffic Rules. 7. Conversely, Sri.Bapugouda Siddappa, learned counsel, who is appearing for the claimants/appellants in all the appeals, vehemently submits that except issuance of notice, no efforts has been made by the insurance company before the Tribunal, either to call the owner of the vehicle who appeared through counsel, to test him on evidence or produced any documents to show that notice is served on him, despite he has not produced particulars of the DL of the driver. The witness who has been examined on behalf of the insurance company has stated only with respect to the documents which were produced on behalf of the insurance company. There is nothing on record to show that they have made any attempt to get the DL particulars in respect of the driver of the said vehicle, so also they have not made any efforts to prove that the owner of the vehicle despite having knowledge consciously entrusted the vehicle, to a person who is not - 16 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS holding any valid and effective driving license as on the date of accident. In these circumstances, the contention raised by the appellant/insurance company does not survive for consideration and is liable to be rejected. 8. So far as quantum is concerned, Sri.Bapugouda in all the appeals, submits that the Tribunal has not properly considered the case of the deceased to award appropriate compensation under the head 10% escalation as per the law laid down by Hon’ble Apex Court in the case of National India Insurance Company vs. Pranay Sethi1, on the compensation awarded under the conventional heads. The learned counsel further contended that the Tribunal has not considered the appropriate income of the deceased as on the date of accident. The Tribunal has not added income towards future prospectus in the death claims, which requires consideration. 1 2017(16) SCC 680 - 17 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 9. So far as the claim with respect to the claimant who has sustained injury is concerned, Sri.Bapugouda submits that, the claimant has sustained grievous injuries to the shaft of right femur, fracture of right distal radius fracture of right wrist. PW.4- the Doctor, who has treated the claimant after the accident, has stated that the claimant is suffering from disability with 31% to the right upper and lower limb. The Tribunal disbelieved the evidence of PW-4 and not considered the disability for awarding loss of future earning capacity. The same requires reconsideration. So far as the compensation awarded under other heads, except medical expenses, requires reconsideration and submits that appropriate compensation be awarded, by allowing the appeal. 10. Sri.Sudarshan.M, learned counsel appearing for the respondent/insurance company in all the appeals supported the impugned judgment of the Tribunal, stating that the contributory negligence saddled on the Bolero vehicle is just and proper, which does not call for any - 18 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS interference at the hands of this Court and accordingly, sought to dismiss the appeal. 11. Having heard learned counsel appearing for the parties, perused all the appeals papers. So also the trial Court record made available by the learned counsel appearing for appellant insurance company, so also by the learned counsel appearing for appellants/claimants. The points that would arise for our consideration are as follows: (i) Whether the appellant/insurance company has made out any case to exonerate the insurance company from making good the compensation at the rate of 40% saddled on the insurer? (ii) Whether the claimants have made out a case, in all the appeals to enhance the compensation? 12. Our answers to the above points for consideration are as under: Point No.1 - in Negative. - 19 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS Point No.2 - partly in Affirmative, for the following: REASONS 13. Point No.1: It is the contention of learned counsel appearing for the appellant insurer company in all the appeals, that the Tribunal has given an erroneous finding at paragraph No.23 of the judgment that the appellants have not produced any evidence in support of its contention that the driver of the Bolero vehicle was not possessing valid and effective DL as on the date of accident. The insurer has produced copy of Notice issued to the owner of the Bolero vehicle, and the acknowledgment returned. These documents and the evidence of the witnesses examined by the insurer has not been considered has resulted in the judgment holding that there is contributory negligence on the part of the Bolero vehicle. As could be seen from the record the Tribunal in the said paragraph has observed that, the witness of the insurer admitted in the cross-examination that the police - 20 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS have filed charge sheet against the drivers of the both the vehicles and the insurer of Bolero vehicle has not filed any application calling in question the charge sheet to the extent of driver of the said vehicle. Further observed that the witness has admitted the insurer has not given any notice to the driver. On this, the Tribunal has held that the insurer has not discharged its burden to substantiate its defence that the driver of the Bolero vehicle was not possessing valid and effective DL as on the date of accident. 14. As could be seen from the record, the insurer, except issuing notice on the owner and examining its officer, has not made any effort to file any application seeking summons against the owner of the Bolero vehicle/respondent No.3 before the Tribunal, to test him on its defence. 15. At this stage, learned counsel for the insurer made a feeble attempt by stating that even if the owner is secured, he would have given evidence against the - 21 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS insurer. This contention of learned counsel appearing for the appellant cannot be countenanced, the reason being if a person, called to give evidence on behalf of a party to a litigation, if states against the interest of the party, who called him to given evidence on his behalf, he can very well be declared as hostile and be examined within the provisions of Section 154 of Indian Evidence Act, 1872. In the case on hand no such effort made by the insurer, to substantiate their defence regarding DL, we find force in the contention of learned counsel appearing for the claimant, that the insurance company has failed to discharge its burden. In these circumstances, we are of the considered opinion that, the insurance company cannot maintain its contention to claim exoneration from paying compensation. In these circumstances, the point No.1 is answered against the insurer and in favour of claimants. 16. So far as the quantum in all the appeals by claimant: - 22 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS MFA.No.201481/2022 (case of injury): 17. As per the contention of the learned counsel for appellant, the Tribunal while awarding compensation has not considered the case for awarding compensation under the head future loss of income as well as loss of amenities, including loss of income during laid up period. The Tribunal at paragraph No.39 of the judgment reasoned that in the wound certificate the injuries shown are simple one, however, in the disability certificate and case sheet at Ex.P13 and 14, it is stated that the claimant sustained fractures. Further, the Tribunal has observed that police have filed charge sheet for the offences punishable under Sections 279, 337 and 304-A of IPC. The Tribunal has stated that the charge sheet does not speak about grievous injuries caused to the claimant. The Doctor who has been examined as PW-4 has admitted that the claimant approached him for the first time, for issuance of disability certificate and further he has admitted that he is required to give certificate as per medical guidelines. On - 23 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS this the Tribunal has come to a conclusion that the testimony of PW-4 with Ex.P13 are not corroborated by wound certificate at Ex.P9. As such held that the evidence of PW-4 as well as documents at Ex.P13 are not having any probative value and reliable to award compensation under the head loss of earning capacity. 18. It is not in dispute that in the wound certificate, the injuries are shown simple in nature so also he expressed that the X-ray taken, shown in the wound certificate also does not reflect any fractures, but the fact remains that injuries shown in the wound certificate are swelling and tenderness on right thigh and tenderness on the right wrist. The accident has occurred on 23.05.2017, the claimant was treated in the District Hospital, Vijayapura till 24.05.2017, thereafter he was admitted to Vaibhav Hospital at Vijayapura, on the evening of 24.05.2017. The Ex.P14 case sheet clearly shows that the complaint stated in the case sheet, as pain and swelling over right thigh and right hand wrist with history of road - 24 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS traffic accident at 4.00 p.m. on 23.05.2017. In the hospital, after taking the X-ray, the fracture of right femur bone as well as distal end of radius fracture are confirmed. The Doctor who has issued disability certificate has clearly stated that he has treated the claimant from 24.05.2017 to 08.06.2017. During the hospitalization period, claimant has undergone surgery for the fracture of femur bone, wrist bone and radius bone. The Doctor has assessed the disability to both right upper and lower limb at 31%. Though there is no grievous injuries shown the wound certificate, but it cannot be lost sight the claimant was shifted to Vaibhav Hospital, immediately on the following day of accident with complaints of swelling on thigh as well as wrist region and in the clinical examination, fracture was confirmed. A perusal of complaint and FIR registered on the basis of complaint, the police have invoked provisions of Section 338. It is not the case of Insurance company that between 23.05.2017 and 24.05.2017, when the claimant was shifted from Government Hospital to - 25 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS Vaibhav Hospital, there is any other intervention not relating to the accident, ash resulted in injuries. Both Ex.P9 as well as P14, the wound certificate as well as case sheet, clearly shows that there is swelling and tenderness on the fracture site stated in Ex.P13. The Tribunal has not considered the evidence of Doctor PW-4 in a proper perspective. What is stated in the cross-examination by the Doctor, is after discharge from the Hospital, claimant came for the first time for issuance of disability certificate, however, the Tribunal has read the same as the claimant approached the Doctor for the first time for issuance of disability certificate. A perusal of the evidence of both claimant and the Doctor, there is no effective cross- examination to discredit the evidence of both on the injuries suffered resulting in fracture. The Tribunal has missed this aspect of the matter. Considering the disability stated by Doctor at 31% to right upper limb and the occupation of claimant, if the disability is taken to the whole body at 15% to the whole body would meet ends of - 26 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS justice. The accident occurred in the year 2017. The income fixed under the chart prepared by the Karnataka State Legal Services Authority for disposal of matter before Lok Adalath with respect of unskilled labourer is at Rs.10,250/- for the year 2017. Considering the age of claimant as 28 years, as on the date of accident the appropriate multiplier applicable is ‘17’. In these circumstances, the claimant is entitled for compensation, as sought in this appeal under the heads stated supra. The compensation awarded under other heads, except medical expenses requires reconsideration when compared to the injuries suffered. On reconsideration the claimant is entitled to the following re-determined compensation: Sl. No. Heads Amount Rs. 1. Towards pain and suffering 60,000-00 2. Towards medical expenses 32,397-00 3. Loss of income during laid up period (Rs.10,250 x 3) 30,750-00 4. Loss of future amenities 40,000-00 5. Towards attendant, nourishment and conveyance 15,000-00 6. Loss of income due to disability (10,250x12x17x15%) 3,13,650-00 TOTAL 4,91,797-00 - 27 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 19. Accordingly, the claimant is entitled for a total compensation of Rs.4,91,797/- as against Rs.53,397/-. The re-determined compensation shall carry interest at the rate of 6% p.a. from date of petition till realisation. 20. So far as the death claim is concerned, the Tribunal though has taken the income at Rs.10,250/- as fixed under the chart prepared by the Karnataka State Legal Services Authority of this Court for the year 2017, however not added future prospectus to the income, corresponding to the age of the deceased. Further, the Tribunal has also not added 10% escalation on the conventional heads from 2017 for each completed 3 years. MFA.No.201371/2022 21. The deceased Mohammad Patel Khanavar, was aged 30 years as on the date of accident. 40% is required to be added towards existing income. The appropriate multiplier would be ‘17’. There are totally 5 claimants, each entitled for Rs.40,000/- towards loss of filial - 28 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS consortium. The deduction towards personal expenses comes to 1/4th. 22. For the foregoing reasons the claimants are entitled for following compensation: Sl. No. Heads Amount Rs. 1. Loss of dependency (10,250+40% x 12 x 17 x 3/4) 21,95,550-00 2. Loss of filial consortium (40,000 x 5) 2,00,000-00 3. Loss of estate 15,000-00 4. Funeral expenses 15,000-00 5. 10% escalation for two terms of three each completed years, i.e., 10% + 10% 46,000-00 TOTAL 24,71,550-00 23. Accordingly, the claimant is entitled for a total compensation of Rs.24,71,550/- as against Rs.16,00,000/-. The re-determined compensation shall carry interest at the rate of 6% p.a. from date of petition till realization. MFA.No.201375/2022 24. The deceased Ramappa @ Ramanna Katabar, was aged 54 years as on the date of accident. 10% is required to be added towards existing income. The - 29 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS appropriate multiplier would be ‘11’. There are 3 claimants, each entitled for Rs.40,000/- towards loss of filial consortium. The deduction towards personal expenses is 1/3rd, as the deceased being a married person. 25. For the foregoing reasons the claimants are entitled for following compensation: Sl. No. Heads Amount Rs. 1. Loss of dependency (10,250+10% x 12 x 11 x 2/3) 9,92,200-00 2. Loss of filial consortium (40,000 x 3) 1,20,000-00 3. Loss of estate 15,000-00 4. Funeral expenses 15,000-00 5. 10% escalation for two terms of three each completed years, i.e., 10% + 10% 30,000-00 TOTAL 11,72,200-00 26. Accordingly, the claimant is entitled for a total compensation of Rs.11,72,200/- as against Rs.9,50,000/-. The re-determined compensation shall carry interest at the rate of 6% p.a. from date of petition till realization. - 30 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS 27. For the foregoing reasons, we answered the points. Stated supra. Accordingly we proceed to pass the following: ORDER (i) All the appeals filed by the appellant- insurer are dismissed. (ii) The deposits in the respective appeals shall be transmitted forthwith to the concerned Tribunal in the concerned claim petitions for disbursement. (iii) All the appeals filed by the appellant/ claimants are allowed in part, modifying the judgment and award dated 16.06.2021 in all the respective claim petitions. (iv) The claimant in MFA.No.201481/2022 is entitled for the re-determined compensation of Rs.4,91,797/-, which shall carry interest at the rate of 6% per annum from the date of petition till realization. (v) The claimants in MFA.No.201375/2022, are entitled for the re-determined compensation of Rs.11,72,200/-, which shall carry interest at the rate of 6% per - 31 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS annum from the date of petition till realization. (vi) The claimants in MFA.No.201371/2022, are entitled for the re-determined compensation of Rs.24,71,550/-, which shall carry interest at the rate of 6% per annum from the date of petition till realization. (vii) The respondent Nos.2 and 4/insurer shall deposit re-determined balance compensation along with accrued interest stated supra, within 6 weeks from the date of receipt of copy of this order before the concerned Tribunal, as per the percentage of liability fastened by the Tribunal in the concerned claim petitions, respectively. (viii) The apportionment as well as disbursement in death claim i.e., in MVC.No.483/2017 is as per the order passed by the Tribunal. (ix) Upon deposit of re-determined balance compensation, in the death claim, i.e., in MVC.No.485/2017, the entire amount shall be released in favour of claimants as per - 32 - HC-KAR NC: 2025:KHC-K:5866-DB MFA No. 201481 of 2022 C/W MFA No. 200244 of 2022 MFA No. 200247 of 2022 AND 3 OTHERS the apportionment order of the Tribunal, upon proper identification. (x) Upon deposit of re-determined balance compensation, in the injury claim, entire amount shall be released in favour of claimant upon proper identification. Sd/- (H.P.SANDESH) JUDGE Sd/- (T.M.NADAF) JUDGE RR CT: AK