- 1 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 20102 OF 2012 (MV-I) BETWEEN: THE DIVISIONAL MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, VIVEKANANDA CORNER, DESAI CROSS, CLUB ROAD, HUBLI, REPTED. BY ITS DEPUTY MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, KALBURGI COMPLEX, LAMINGTON ROAD, HUBLI. - APPELLANT (BY SRI. S. K. KAYAKAMATH, ADVOCATE) AND: 1. CHANDRANNA S/O. BASAPPA MUCHATI, AGE 35 YEARS, OCC: AGRICULTURE & BUSINESS, I.E., DEEPAK TRADERS, APMC YARD, BYADGI, R/O. BUSALAHALLI VILLAGE, TQ: BYADGI, DIST: HAVERI. 2. RAJU P. JUNJENNAVAR S/O. SHEKAPPA, AGE MAJOR, OCC: TRANSPORTATION BUSINESS, R/O. SHIDDESHWAR NAGAR, 3RD CROSS, POST: RANEBENNUR, DIST: HAVERI. OWNER OF AUTO RICKSHAW. - RESPONDENTS (BY SRI. LOKESH MALAVALLI, ADVOCATE FOR R1; NOTICE TO R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC. 173(1) OF M.V. ACT, 1988, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 28.09.2011 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND ADDL. MACT, ITERNATE COURT, BYADAGI IN M.V.C NO.69/2008 & ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This appeal is by the insurer challenging the judgment and award dated 28.09.2011 passed by the learned Additional Senior Civil Judge & MACT, Byadagi in M.V.C. No. 69/2008. The Tribunal by the impugned order partly allowed the claim petition and directed both the respondents No.1 and 2 to pay the compensation. The same is challenged by the respondent No.2-insurer in the present appeal. 2. Brief facts of the case are that on 24.07.2007 around 22:20 hours petitioner was going by walk from Ranebennur bus stand towards his house and he was walking extremely to the left side of the road. When he reached near Eshwar temple, he met with an accident due to rash and negligent driving of the auto rickshaw bearing No. KA-27/8712. The said auto came from his back side and dashed against him as a result of which he sustained fracture of both the bones of right leg. He has taken - 3 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 treatment in the hospital of Dr. S.M. Mudri Hospital and thereafter he has taken treatment in Kasturba Medical College Hospital, Manipal. He had spent huge amount for treatment. With these reasons, prayed to award compensation. 3. The owner of the vehicle remained exparte. Respondent No.2 denied all the contents of the claim petition and it has further contended that there is delay in lodging FIR. To defraud the insurance company, the claimant in collusion with the owner and driver of the auto rickshaw as well as the Police created false story of accident and falsely implicated the said vehicle. It is further contended that its liability is restricted to terms and conditions of policy of insurance and holding of valid and effective driving licence of the driver of the offending auto rickshaw. With these reasons prayed to dismiss the claim petition. 4. The Tribunal on the basis of rival contentions of the parties framed necessary issues. - 4 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 5. The claimant to prove his contention got examined three witnesses as PWs.1 to 3 and got marked Exs.P.1 to P.21. Respondent No.2/insurer got examined witnesses as RW1 and got marked four documents as per Ex.R.1 to R.4. The Tribunal after hearing both the parties and appreciating the pleadings and evidence on record, by the impugned judgment allowed the claim petition. The Tribunal held that accident had taken place due to rash and negligent driving of the auto rickshaw by its driver. The Tribunal held that claimant had sustained grievous injuries as mentioned in the wound certificate. Claimant spent huge amount towards medical expenses and suffered permanent disability. With these reasons the Tribunal awarded following amount of compensation. 1. Pain and suffering 60,000.00 2. Medical expenses 1,13,319.00 3. Future medical expenses 50,000.00 4. Attendant charges 30,000.00 5. Loss of amenities and discomfort 25,000.00 6. Conveyance expenses 10,000.00 7. Food and nourishment 15,000.00 8. Loss of future earning capacity due to permanent disability 7,80,000.00 9. Total 10,33,390.00 - 5 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 6. The appellant-insurer being aggrieved by the said judgment and award preferred this appeal on the ground that firstly there is no accident as contended by the claim petitioner, the medical records produced by the claimant at Ex.P.16 reveals that he met with accident while going on the motorcycle. Therefore the contentions of the claim petitioner is not corroborated by Ex.P.16. FIR was registered after delay of three days. It clearly indicates that he colluded with the owner and driver of the said auto rickshaw, thereafter created story of accident by said vehicle. The said vehicle was falsely implicated in this case. 7. The second ground of attack is that the Tribunal has awarded compensation under the head of loss of future earning capacity due to permanent disability as Rs.7,80,000/-. The claimant did not produce before the Court his accounts statement though he was stated to be a businessman and that after the accident, his earning was considerably reduced. There are no materials on record to - 6 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 prove it. Inspite of absence of the said material the Tribunal has accepted permanent disability of the claimant towards his earning capacity at the rate of 25%, which is highly erroneous. He further contends that claimant had sustained injuries in the accident of the year 2007 as well as 2009; While assessing the disability by PW3, all the injuries were considered together i.e., including the injuries sustained by the claimant in the alleged accident of the year 2009, assessed the disability. The Tribunal also blindly accepted the said contention. Since the claimant did not produce his books of accounts before the Court that after the accident his income was reduced due to disability, he was not at all entitled for compensation under the head loss of future earning capacity due to permanent disability. Hence awarding of compensation under the said head is erroneous. 8. The next contention of the appellant is that the driver of the said auto rickshaw was not holding valid and effective licence. During the pendency of the case notice - 7 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 was given to the owner of the vehicle/ RC owner of the auto rickshaw, but the RC owner did not produce copy of the licence of the driver. Therefore the Tribunal has to take adverse inference that driver was not holding valid and effective lience to drive that class of the vehicle and hence the owner of the vehicle violated the terms and conditions of the policy of the insurance. Therefore the owner himself is liable to pay compensation. 9. In support of his contentions, he relied on the judgment of the Co-ordinate bench of this Court in ILR 2007 KAR 4567 [Yashodara B. Shetty Vs. United India Insurance Co. Ltd., and others] and also the Division Bench decision of this Court in the case of Subashchand Jain V. Ganapathi and Another [2002 (4) Kar.L.J. 433 (DB)] wherein it is held that unless the claimant proves that his earning was reduced considerably due to injuries sustained in the accident, due to permanent disability, he is not entitled to claim compensation. - 8 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 10. The following questions arise for determination by this Court. [1] Whether the MACT erred in holding that claimant met with an accident by an auto rickshaw while going by the side of the road by walk? [2] Whether the Tribunal erred in awarding compensation under the head loss of future earning capacity due to permanent disability? [3] Whether the insurer is liable to pay compensation in the absence of holding of valid and effective driving licence by the driver of the offending vehicle? [4] What order? 11. Point No. 1: In the claim petition, the claimant has positively contended that “on 24.07.2007 at about 22.20 hours the petitioner was going to his house by walk from Ranebennur bus stand, on bus stand road, extremely on the left side of the said road. When he came near Eshwar temple one auto rickshaw bearing Reg. No. KA-27/8172 came from his hind side and the driver of the said auto rickshaw was driving the same in a rash and negligent manner, without following traffic rules and regulations and - 9 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 dashed to the petitioner from his hind side and caused the accident.” 12. The petitioner got examined himself as PW1. In the evidence also he has reiterated the above said facts stated in the petition. In his cross examination by the insurer, he has stated that at the time of accident he was going by walk. In his further cross examination he has stated that immediately after the accident he went to Government Hospital for treatment and he did not inform to the Doctor that he met with an accident by an auto rickshaw and even he did not inform the Medical Officer of Manipal Hospital, Manipal, that he met with an accident by an auto rickshaw. Regarding the delay, his explanation is that he was unconscious for ten days and after he regained conscious he has not informed that he met with an accident by auto rickshaw and he does not know as to how the Doctor in the case sheet recorded that he met with an accident by an auto rickshaw. - 10 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 13. The learned counsel for the appellant taken the Court to the file produced by the claimant at Ex.P.16. At page No. 7 of the said file, the nomenclature of the said page is ‘history and examination of the injured person. it shows that he was admitted in the hospital on 24.07.2007; In the column history of the present injury ‘alleged history of road traffic accident when bike was hit by an auto rickshaw near bus stand in Ranebennur at 10.30 p.m. on 24.07.2007.’ The Doctor has noted that patient was conscious and also noted about the injuries sustained by the said patient. In page No. 10 of the said case sheet again the very same fact is repeated and there also it is mentioned that he was fully oriented and alert. At page No. 14 as well as 15 of the said case sheet the above said fact was repeated and it is also noted that ‘patient managed conservatively at a local hospital for two days and referred here for further treatment. Therefore the fact of accident stated by him before the Medical officer is different from the fact stated before the Police. In Ex.P.16 as referred above, he was stated to be conscious and - 11 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 oriented and then he was examined by the Consulting Doctor. Therefore his contention that he was unconscious for ten days from the time of accident is belied by his own document. 14. The contention of claimant that he did not inform about the accident to the Medical Officer of the Manipal Hospital is also belied by the history of the injury noted in the case file of the claimant. If he had not informed to the Doctor, then how could the Doctor mention about the fact of the accident in the case history and there was no reason for the Doctor to mention that he met with an accident by an auto rickshaw while going on a motorcycle. 15. The learned counsel for the appellant submits that claimant might not be holding the driving licence to ride two-wheeler and in the inpatient records, i.e., Ex.P.16 it is also noted that he was under influence of alcohol. Hence, accident must be caused by himself. Therefore he must have stated before the Police that he was going by walk at the time of accident. The said contention cannot be ruled - 12 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 out. To suppress the said fact he must have changed the scenario of the accident. The accident had taken place on 24.07.2007 at about 22.20 hours near Ranebennur Bus Stand but the complaint was lodged on 27.07.2007. Very strangely none of the eyewitnesses reported the same to Police. According to the contention of the appellant, the alleged auto rickshaw was falsely implicated in this case. That also cannot be ruled out. 16. Ex.P.5 is the Motor Vehicle Inspection report. It shows no damages to the vehicle. Though claimant had taken treatment in a private hospital or Government hospital as noted in Ex.P.16, but the hospital wherein he had taken treatment initially had not issued any certificate to him and he has not produced document given by the said hospital. According to the contents of Police complaint given b one of the relative of the claimant, it is stated that claimant after sustaining injuries taken treatment in local hospital and was shifted to Manipal Hospital. If that is the case, why he did not produce the - 13 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 medical records for taking treatment in the hostel wherein he was initially admitted, is not explained. The contention of the appellant that if the said medical records are produced before the Court it would reveal that he was driving the two wheeler and was under the influence of the alcohol, therefore he did not produce the same before the Court cannot be ruled out. The contention of the claimant that he met with an accident by involvement of the offending vehicle is doubtful. Under these circumstances, the findings of the Tribunal that only on the basis of charge sheet and its enclosures without considering the contents of Ex.P.16 holding that accident had taken place due to negligence of driver of offending vehicle is erroneous. It needs interference by this Court. In view of the above said discussion, point No.1 is answered in the affirmative. 17. Point No. 2: The appellant in the alternative contended that the amount of compensation awarded by the Tribunal under the head loss of future earning capacity - 14 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 due to permanent disability is highly erroneous. The claimant is stated to be a business person, he has not produced account books and Profit & Loss Accounts of the years prior to the accident and subsequent to the accident. He is not a Coolie or the person who has no accounts regarding the earnings or loss, etc. Had he produced said documents, the Tribunal would have ascertained actual loss suffered by him due to injuries sustained in the accident. The Tribunal has taken the income of the claimant as Rs.20,000/- per month and Rs.2,40,000/- p.a. It is not the case of the claimant that he was not maintaining the accounts or he was unable to produce accounts for any other reasons. When there are no documents, the Tribunal could have considered notional income of the claimant to assess loss of income or it could have considered the income chart prepared by the Karnataka State Legal Services Authority, while calculating the compensation. As per the said chart, income of the victim of the accident of the year 2007 could be considered as Rs.4,000/- per month or Rs.48,000/- p.a. - 15 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 and not as assessed by the Tribunal. If that is taken into account, then even if the claimant has proved the accident then he was entitled for compensation of Rs.1,56,000/-, even if considered disability as 25% to the whole body and not Rs.7,80,000/- as assessed by the Tribunal. 18. In the case of Subhashchand Jain referred to supra, the Division Bench of this Court has held as under: “It is no doubt true that the total compensation awarded under the heads injuries, pain and sufferings and disability adds up to Rs.92,000/- but we are not inclined to agree with the submissions of the learned Counsel for the respondent that having regard to the nature of the injuries, the sum of Rs.47,000/- is on the higher side. The appellant had suffered extensive injuries to his leg, on the face and it is a fact that he had to undergo hospitalisation for the period of 6 months which indicates that the injuries suffered is not only grievous but also for long. The amount of Rs.20,000/- for pain and sufferings in the circumstances cannot be said to be on the higher side. A sum of Rs.25,000/- towards disability though not indicates as to the loss of future earnings, the Tribunal has awarded this amount in the context of the discussions as to the extent of disability while we are - 16 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 not in agreement to the submissions the learned Counsel for the appellant that the judgment and award of the Tribunal calls for modification for awarding any amount towards of future earning in favour of the appellant on the premise that such extent of disability could have affected his business, we are also not inclined to reduce or take out the amount of Rs.25,000/- under the head disability. The loss in a business if it has to be compensated should have been as a result of the injury and the consequent handicap which directly affects the management of the business. It is also necessary that in the first instance the income from the business should have been proved cogently and then there should be further material to indicate as to what would be the income from that business which has been reduced because of the injury. In the absence of any convincing and cogent material on this aspect either with regard to the exact amount of income or the exact loss of such income we are not inclined to award any amount by applying the principles which are called into aid in determining the loss of future earning in respect of a person who earns income by physical labour and whose bodily injury directly affects the work and earning capacity of such person. The loss attributable due to the physical disability resulting in loss of earning is different from the loss which can be attributed to earning capacity from a business. Any - 17 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 physical disability need not necessarily result in loss of earning from the business and so there is no occasion to apply the same principles. Therefore, we reject the submission of the learned Counsel for the appellant that the appellant was entitled for any amount of compensation under the head "loss of future earning". Therefore the assessment of disability affecting his earning capacity by the Tribunal is also incorrect. Accordingly, point No.2 is answered in the affirmative. 19. Point No. 3: The appellant contended that driver of the offending auto rickshaw was not holding valid and effective driving licence. To substantiate the said contention, respondent No.2 examined RW1, who has produced copy of the notice at Ex.P.4 and its acknowledgement at Ex.P.3. The insurer has called upon the owner of the vehicle to produce licence of the driver of the offending vehicle at the time of the accident. It is the evidence of RW1 that owner of the vehicle did not produce driving licence of the driver of the auto rickshaw, who was driving the vehicle at the time of accident. - 18 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 20. Respondent No.1 remained absent before the Tribunal. Even the claimant has not produced the driving licence of the driver of the auto rickshaw. Therefore adverse inference has to be drawn against respondent No.1. Had the driver was holding valid and effective driving licence, there was no reason for him not to produce the said licence. It indicates that driver of the auto was not holding valid and effective driving licence. The appellant has relied in the judgment of the Co- ordinate Bench in the case of Yashodhara Shetty referred to supra. It is settled principle of law that if the driver of the vehicle was not holding valid and effective driving licnece, then the insurer shall pay the said amount to the claimant and recover the same from the owner of the vehicle. The Tribunal in the impugned judgment has not considered this fact. Therefore the Tribunal has committed error in not giving finding on the disputed fact. Therefore, point no.3 is answered partly in the affirmative. - 19 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 21. Since issue no.1 is a material issue, the claimant failed to establish involvement of the vehicle in the accident. He has suppressed true facts before the Tribunal and trying to claim compensation on the basis of concocted facts. Therefore he is not entitled to claim compensation. The person who approaches the Court shall approach the Court with clean hands. For the reasons stated in Point No. 1, claimant has not approached the Court with clean hands. He was said to be riding a two wheeler under the influence of alcohol and met with accident. These facts were suppressed while claiming compensation. He has not approached the Court with clean hands. In view of the same, he is not entitled for compensation. For the above said reasons, I proceed to pass the following order. ORDER [1] The appeal is allowed. [2] The judgment and award dated 28.09.2011 passed by the learned Addl. Senior Civil Judge and Member, Addl. MACT, Iternate Court, Byadagi, is set aside. - 20 - NC: 2025:KHC-D:4861 MFA No. 20102 of 2012 [3] The claim petition is dismissed. Whatever the amount deposited by the appellant- insurer before this Court, shall be refunded to the appellant on due acknowledgement. Sd/- (UMESH M ADIGA) JUDGE BVV /CT-AN List No.: 1 Sl No.: 5