- 1 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 103511 OF 2016 (MV-I) BETWEEN: PRAKASH KASHINATH KOLI, AGE: 51 YEARS, OCC: DRIVER, NOW NIL, R/O: PEERANWADI, TQ AND DIST: BELAGAVI-590014 …APPELLANT (BY SRI. MALATESH HIPPALI, ADVOCATE, FOR SRI. HARISH S. MAIGUR, ADVOCATE) AND: 1. SARJERAO ATMARAM PATIL, AGE: MAJOR,OCC: BUSINESS, R/O: KANEGAON-415411, TQ: WALWA, DIST: SANGALI, MAHARASHTRA STATE. 2. THE GENERAL MANAER, RELIANCE GENERAL INSURANCE CO.LTD., KOLHAPUR CIRCLE, BELAGAVI-590002 …RESPONDENTS (BY SRI. GEETHA K M @ PAWAR FOR R1,ADVOCATE;) SRI. MALLIKARJUN MADANAHALLI ADVOCATE; SRI. NAGARAJ C. KOLLOORI, ADVOCATE FOR R2) THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 10.05.2016 PASSED IN MVC NO.2422/2014 ON THE FILE OF THE V-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL-VI, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The appellant-claimant in MVC No.2422/2014 dated 10.05.2016 on the file of V Addl.District and Sessions Judge & MACT-VI, Belagavi has preferred this appeal seeking enhancement of compensation awarded by the Tribunal. 2. Parties to this appeal are referred as per their rank before the Tribunal. 3. Claimant filed a claim petition under Section 173(1) of Motor Vehicles Act, 1988 against respondents seeking compensation, because of injuries suffered due to accident occurred on 13.3.2014. 4. It is the case of the claimant that, on 13.3.2014, at about 8.30 p.m. when himself and claimant Gajanan Kashinath Koli in MVC No.2421/2014 were removing the - 3 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 stepney of a tempo bearing Regn.No.KA-23/7399 by putting the stones and signals as indicators to the road users on NH-4, at that time, another tempo bearing Regn.No.MH-03- N-6219 came from Kolhapur side driven by its driver in a rash and negligent manner in high speed and dashed to both the petitioners. Because of this accident, they sustained grievous injuries. Immediately after the accident, the claimant was shifted to Nursing home at Nippani and thereafter, he was shifted to City Hospital, Kolhapur. He has spent Rs.1,00,000/- towards medical and other expenses. 5. It is stated that, this claimant was 49 years of age at the time of accident and was hale and healthy. He was driving his own tempo and earning Rs.35,000/- per month. Because of this accident, now he has been put to hardship and loss as he has suffered substantial disability. He has lost his earning capacity because of his permanent disability. Hence, he prayed to award compensation fastening liability on both the respondents. - 4 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 6. Before the Tribunal, both the respondents appeared and resisted the petition by filing detailed objection statement independently by denying all the assertions and allegations made in the petition. It is denied that, the said accident has taken place because of the rash and negligent driving of said tempo by its driver. The owner and insurer of vehicle bearing Regn.No.KA-23/7399 are not impleaded therefore, claim petition is bad for non-joinder of necessary parties. Respondent no.2 insurer contends that, its liability is subject to terms and conditions of the policy. The claim is exorbitant and cannot be granted. Hence, it is prayed to dismiss the petition. 7. Based upon the rival pleadings of the parties, the learned Tribunal framed four issues. 8. The aforesaid petitions are tied together and common judgment is passed. The claimant in MVC No.2421/2014 has not preferred any appeal so also the respondents challenging the findings of the Tribunal in MVC No.2421/2014. Therefore, findings with regard to the rash - 5 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 and negligent driving of offending tempo by its driver have attained finality. Claimants in both the petitions got marked in all 94 documents as per Ex.P1 to P94 and closed claimants’ evidence. Dr. Satish Devegowda Patil was examined as PW.3. To rebut the evidence of the claimants, one Ms.Sumantha Keri an official of respondent no.2 was examined as RW.2 and got marked Ex.R1 to R4. 9. The learned Tribunal on hearing the arguments and on evaluation of the evidence answered issue nos.1 and 3 in the affirmative and issue no.2 in the negative and held that the claimant is entitled for compensation of Rs.2,70,000/- under all the relevant heads together with interest at 9% p.a. from the date of petition till its realization and held that, both the respondents are liable to pay the compensation but, fastened 25% negligence on the part of claimants and 75% liability on the respondent nos.1 and 2. Accordingly, directed respondent no.2 to deposit 75% of the compensation so awarded before the Tribunal. - 6 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 10. Now this judgment and award is challenged by the appellant on the ground that, the said accident has taken place exclusively because of rash and negligent driving of tempo owned by respondent no.1 and insured with respondent no.2 and hence, both are liable to pay the compensation. According to the claimant, the fastening of 25% liability on the claimants is incorrect. The award of compensation is on lower side and hence, it is prayed by the learned counsel for the claimant to allow the appeal and enhance the compensation amount fastening liability on respondents jointly and severally. 11. As against this submission, learned Sri Nagaraj C.Kalloori Panel Counsel for respondent no.2 submits that, rightly the Tribunal has awarded the compensation attributing 25% negligence on the part of vehicle was parked for changing stepney. The said vehicle was parked without any indicator or signal by the claimants in both the petitions and it amounts to negligence. He submits that, no interference is required into the findings of the Tribunal. - 7 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 12. In view of the rival submissions of both the side, the point that would arise for our consideration are: “i) Whether the judgment and award of the Tribunal require interference with regard to the fastening of the liability as well as award of compensation as alleged?” 13. So far as accident that took place on 13.3.2014 at 8.30 p.m, it is not in dispute. It is the case of the claimant that, at the time of accident, both the claimants in aforesaid petitions by parking the said vehicles by putting indicators like stones and signals to the road users were removing the stepney. At that time, driver of the offending tempo by driving his vehicle in high speed, in a rash and negligent manner came from Kolhapur side and dashed to the claimants’ tempo. Because of this, both the claimants sustained injuries. To that effect, claimants rely upon police papers such as copy of FIR, complaint, spot panchanama, spot sketch, IMV report, and copy of the charge sheet. These documents do indicate that, on investigation, police have filed charge sheet against the driver of tempo bearing Regn.No.MH-03-N-6219. The learned Tribunal has observed - 8 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 in its judgment to that effect. These documents are admitted documents by both the side. It is observed by the Tribunal that, from the documents produced, the said vehicle bearing Regn.No.KA-23/7399 was parked on the tar road without giving any signal. Therefore, the driver of the said vehicle also contributed in the negligence. To prove the said fact, the respondents have not led any evidence and RW.1 was not an eye witness. The charge sheet was filed by Police against the driver of said offending tempo which dashed to the parked tempo. PW.2 the claimant is specific that, the said accident has taken place because of rash and negligent driving of offending tempo when himself and other claimant stated above were engaged in removing the stepney. The driver of the said offending vehicle had dashed to the said parked vehicle. This itself goes to establish that, he was very much rash and negligent in driving his vehicle on NH-4 which is busiest road and dashed to the said parked vehicle. But, the Tribunal assessed the contributory negligence to the extent of 25% which in our opinion is incorrect. When the driver of the offending vehicle had sufficient space towards Belgaum - 9 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 side on the right side of the road, he would have avoided the accident by driving his vehicle towards right side of the road. The said driver is not examined by the respondents. In the absence of his evidence, the findings of the Tribunal that, these claimants also contributed in causing the accident cannot be accepted. Therefore, such a finding has to be set at naught. Thereby, it is held that, the said accident has taken place because of rash and negligent driving of the offending tempo bearing Regn.No.MH-03-N-6219 by its driver. 14. Sofar as award of compensation is concerned, the claimant pleads and states in his evidence that, he was a driver by avocation and was earning Rs.35,000/- per month. He was aged 49 years at the time of accident. According to him, because of accidental injuries, he has suffered lot physically, mentally and financially. He has produced documents such as prescriptions, medical bills, and discharge summary to prove that, he has taken treatment as in-patient in the hospital. As per his discharge summary marked at Ex.P23, the diagnosis was "he has - 10 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 suffered left tibia and fibula fracture with wound over right foot". He was admitted in the City Hospital, Kolhapur on 14.3.2014 and was discharged on 25.3.2014 i.e., for a period of 11 days. He was admitted in the Hospital with history of injury to both legs, right leg sutured wound in situ. He underwent the surgery. Doctor has noticed fracture of left tibia and fibula. He has produced medical bills marked at Ex.P24 to 51. They show that, he has spent money towards purchase of medicines, payment towards advance. When he was discharged, the total bill he has paid was Rs.35,000/- as per Ex.P51. Ex.P52 to 73 are the prescriptions, P74 and 75 are the ECG report, P76 Haemogram report, so also report on Australia antigen. While marking these documents, no little finger was raised by the respondents. Ex.P83 is the copy of driving licence and Ex.P93 and 94 are X-ray films. 15. On perusal of all these documents, they show that, claimant has suffered a fracture of left tibia and fibula and he being a driver, definitely this fracture must come in the way of his occupation. Though the Tribunal has - 11 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 assessed the disability to the extent of 10% to the whole body but, in view of fractures to the main left tibia and fibula and the doctor’s evidence, it can be stated that, he has suffered 15% disability to the whole body. He has not produced any documents to show that, he was drawing salary of Rs.35,000/- per month. Without any documents, it cannot be stated that, he was earning that much of amount as averred by him. Accident is of the year 2014. He was aged 55 years at the time of accident as per medical records. Therefore, in the absence of documentary evidence, the notional income has to be assessed as per the guidelines issued by KSLSA at Rs.8,000/- for the year 2014. To this 15% disability is to be calculated. That means 15% of Rs.8,000/- would be Rs.1,200/-. It is to be multiplied with 12 annually. As per medical records claimant is 55 years at the time of accident, therefore as per Sarla Verma Vs. Delhi Transport Corporation and Another1, the proper multiplier that is applicable is `11’. Thus, loss of future income due to disability is Rs.1,58,400/- (Rs.1200 x 12 1 AIR 2009 SC 3104 - 12 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 months x 11) as against Rs.92,400/- awarded by the Tribunal. So far as medical expenses is concerned, Rs.67,000/- is the total amount as per the bills. The said calculation is in accordance with the bills and hence, no interference is called for. 16. The Tribunal has awarded Rs.60,000/- towards pain and suffering. He has suffered two fractures. The tribunal is right in awarding the said compensation. Therefore, no interference is required. 17. In addition to the aforesaid medical expenses, the Tribunal has awarded Rs.4,000/- towards 'conveyance, nourishment and attendant charges'. This amount so awarded is meager. If Rs.25,000/- is awarded towards the same, it would meet the ends of justice. Tribunal has awarded Rs.21,000/- towards 'loss of income during laid up period' by holding that, he must have taken treatment for 3 months without any income. As the income is assessed at Rs.8,000/- for three months, he is entitled for Rs.24,000/- towards the same instead of Rs.21,000/-. So - 13 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 far as 'loss of amenities' is concerned, the claimant is aged 55 years and he cannot enjoy the life as he was enjoying prior to the accident. Therefore, towards 'loss of amenities' is Rs.20,000/- is awarded, it would meet the ends of justice. Thus, the claimant is held entitled compensation for the following: Sl.No. Heads Amount Rs. 1. Loss of future income due to disability 1,58,400/- 2. Medical Expenses 67,000/- 3. Loss of amenities in life 20,000/- 4. Conveyance, nourishment & Attendant Charges 25,000/- 5. Loss of income during laid-up period 24,000/- 6. Pain and Suffering 60,000/- Total 3,54,400/- 18. The Tribunal has awarded interest at 9% p.a. which is on higher side. Therefore, claimant is held entitled for 6% p.a. from the date of petition till its realization. 19. Sofar as liability is concerned, it is held that, the said accident has taken place because of rash and - 14 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 negligent driving of offending vehicle owned by respondent no.1 and insured with respondent no.2. Both the respondents are held liable to pay the compensation. Validity of the insurance policy is admitted on the date of accident. Therefore, under law of indemnity, respondent no.2 to deposit the compensation. Resultantly, we pass the following: ORDER (i) Appeal is allowed in-part. (ii) The claimant is held entitled for total compensation of Rs.3,54,400/- as against Rs.2,70,000/- thereby enhancement of Rs.84,400/- together with interest at 6% p.a. from the date of petition till its realization. (iii) Both the respondents are held liable to pay the compensation however, respondent no.2 to deposit the compensation within six - 15 - NC: 2025:KHC-D:3175-DB MFA No. 103511 of 2016 weeks from the date of receipt of certified copy of this judgment. (iv) As the amount awarded is meager, the amount in deposit shall be released to the claimant forthwith after due identification digitally. (v) Send back the trial Courts along with copy of this judgment forthwith. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk/- Ct:vg/ LIST NO.: 2 SL NO.: 5