- 1 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE B M SHYAM PRASAD AND THE HON'BLE MR. JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 6215 OF 2022 (MV-D) BETWEEN: ICICI LOMBARD GEN INSURANCE CO LTD NO.121, 9TH FLOOR, THE ESTATE, DICKENSON ROAD, M G ROAD, BENGALURU-560042 …APPELLANT (BY SRI. A N KRISHNA SWAMY, ADVOCATE) AND: 1. HOSDURG SURENDRA PAI S/O PANDURANGA PAI, AGED ABOUT 58 YEARS, 2. SMT SADHANA PAI W/O SURENDRA PAI, AGED ABOUT 47 YEARS, BOTH ARE R/AT PAI NIVS, NEAR S S KALAMANDIR, Digitally signed by VANAMALA N Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 MELANGOT, KANHANAGAD, KERALA-671315 3. CHAITHANYA A D D/O ANISH KUMAR V, NO.133, NANDANAM HOUSE, 5TH CROSS, SHANTHI LAYOUT, RAMAMURTHY NAGAR, BANGALORE-560016 …RESPONDENTS (BY SRI. K.T.GURUDEVA PRASAD, ADVOCATE FOR R1 @ R2; R3-SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.06.2022 PASSED IN MVC NO. 5059/2019 ON THE FILE OF THE V ADDITIONAL SMALL CUASES JUDGE AND XXIV A.C.M.M., MEMBER, M.A.C.T., MAYO HALL UNIT, BENGALURU, AWARDING COMPENSATION OF RS. 1,96,68,000/- WITH INTEREST AT 6 PERCENT P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION. THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD and HON'BLE MR. JUSTICE G BASAVARAJA - 3 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD) This appeal is by an Insurer calling in question the Judgment and Award dated 16.06.2022 in MVC No. 5059/2019 on the file of the V Additional Small Causes Judge and XXIV ACMM, Member, MACT, Bengaluru [for short, 'the Tribunal']. The Tribunal, in allowing the claim petition filed by the first and the second respondents [‘the Claimants’] under Section 166 of the Motor Vehicles Act, 1988, has awarded to them a sum of Rs.1,96,68,000/- along with interest at 6%p.a. under the following heads: 1. Loss of Dependency Rs.1,95,57,666/- 2. Loss of Estate Rs.15,000/- 3. Towards funeral and obsequies ceremonies Rs.15,000/- 4. Loss of Consortium Rs.80,000/- Total Rs.1,96,67,666/- Rounded off Rs.1,96,68,000/- The Insurer does not dispute that the Scooter bearing No.KA-53-EX-1962 ['the Scooter’] was covered under - 4 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 a policy, but then, it refutes its liability disputing the description of the accident. The Insurer is also aggrieved by the amount awarded by the Tribunal towards Loss of Dependency in a sum of Rs.1,95,57,666/-. Mr. A. N. Krishna Swamy, the learned counsel for the Insurer, and Mr. K. T. Gurudeva Prasad, the learned counsel for the claimants, are heard and the records perused. 2. The claimants have asserted that their daughter [Ms. Sushmitha S. Pai], was travelling on the pillion of the Scooter when the rider [the third respondent] lost control. The claimants assert that the third respondent was riding the Scooter at a high speed, and their daughter suffered serious head injuries when the Scooter skid. The Insurer has contested the description of the accident admitting that the deceased [Ms. Sushmitha S. Pai] was travelling on the pillion of the Scooter, but she was - 5 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 run over by a heavy vehicle when she and the third respondent fell from the scooter. 3. The claimants have examined one of them [the father] as PW1 and they have essentially relied upon the Police Documents [including the Post- Mortem Report] to bolster their case that their daughter suffered injuries because the third respondent was fast and could not control the Scooter. The Insurer has examined the Medical Officer with the Bowring and Lady Curzon Hospital [Mr. Vasanth Kumar] as RW1 and a Senior Forensic Expert with a private enterprise [M/s. ICS Assure Services Pvt. Ltd.] as RW2 to substantiate their defence that Ms. Sushmitha S. Pai succumbed to the injuries suffered when overrun by a heavy vehicle. 4. The jurisdictional Police have begun an investigation on the first information filed by a certain Mr. Veera Paluri immediately after the accident. This informant has informed the Police that - 6 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 he was travelling on a motorcycle with his friend [Mr. Rahul] behind the Scooter when he saw the rider and pillion fall down and suffer injuries. The informant has further stated that the rider of the Scooter was rash and negligent and that the vehicle was also damaged. The claimants rely upon this information and the Spot Sketch that is prepared by the Police during the investigation. 5. The Doctors at Bowring and Lady Curzon Hospital have declared Ms. Sushmitha S. Pai brought dead and that the rider of the Scooter had only suffered minor injuries. The Insurer relies upon the entry in the Medico-Legal Register with this hospital [Ex. R3]. The entry in this Register reads that Ms. Sushmitha S. Pai was brought dead with the history of road traffic accident mentioned as accident at K.R. Puram, Bengaluru on 11.05.2019 at around 3:30 a.m. with a lorry passing over the deceased. - 7 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 6. The Insurer has assigned reconstruction of the accident to M/s. ICS Assure Services Pvt. Ltd. Mr. Nivrtee Raosaheb Magar [RW2], a Senior Forensic Expert with this entity, has filed a Report, and this Report is marked as [Ex.-R6]. He has deposed that the injuries suffered by Ms. Sushmitha S. Pai do not relate to falling from the Scooter because [a] the vehicle involved is a Scooter, [b] the rider of the Scooter [the third respondent] has suffered only minor injuries, and [c] the Scooter is not majorly damaged. This witness, after referring to the Medico-Legal Register and the Post Mortem Report by his Medical Team as mentioned in his Report, has opined that Ms. Sushmitha S. Pai has suffered "crushed type of injuries", and such injuries could be caused only when run over by a heavy vehicle and not because of a fall from a Scooter. 7. Mr. A. N. Krishna Swamy, the learned counsel for the Insurer, relying upon the afore - 8 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 Medico-Legal Register and aforementioned evidence, submits that this Court must interfere with the Tribunal's finding on Ms. Sushmitha S. Pai dying because of the injuries suffered in a road accident, pointing out that the Tribunal is not justified in its view that if the deceased was run over by a four- wheeler, the whole body would have been compressed and she would not have suffered only head injuries as seen in the photographs. 8. The learned counsel submits that the Reconstruction Report as spoken to by RW2 is categorical that: (i) the Scooter had not suffered damage, (ii) the third respondent [the rider] had only suffered minor injuries, (iii) at the first instance, the truth is related to the Medical Officers with the Bowring and Lady Curzon Hospital in stating that Ms. Sushmitha S. Pai was run over, and - 9 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 (iv) as stated in the Report [Ex.- R6], Ms. Sushmitha S. Pai could not have suffered either injuries to the head or fracture in the rib area unless force as stated in the report is applied. The learned counsel also proposes to rely upon the findings in the Postmortem Report on the injuries suffered. 9. As against these submissions, Mr. K. T. Gurudeva Prasad canvasses that the Insurer relies upon the evidence of Mr. Nivrtee Raosaheb Magar [RW2] and his Reconstruction Report [Ex. R-6] citing him as an expert and asserting that this evidence has probative value, but there is no evidence to hold that this witness is an expert. The learned counsel argues that a mere assertion that the witness has completed Postgraduate studies in Forensic Science would not suffice unless it is brought on record that, his expertise involved - 10 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 analyzing the different circumstances that are mentioned in the Report. 10. The first question for consideration is: whether this Court must opine that the Tribunal’s finding on the reason for the deceased’s injuries is perverse and irregular. This Court must first observe that the informant, who has filed the first information [as per Ex. P2] is not examined, but this information has resulted in a Police investigation culminating in a charge sheet being filed against the third respondent. The result of the investigation is that Ms. Sushmitha S. Pai suffered injuries when she fell from the two- wheeler. These are formidable circumstances whose probative value must be undermined by cogent evidence. 11. As such, the question is whether the probative value of the aforementioned evidence is dislodged by the details as mentioned in Ex. R3 [the Medico-Legal Register] and the Reconstruction Report - 11 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 [Ex. R–6] as spoken by RW2. The Medical Officer with this hospital is examined as RW1, and he only speaks about the entry as per Exb.P3 but without personal knowledge about how the entry is made. The Medical Officer has stated that the entry in this register is by Dr. Balaji and that this Doctor continues to be in service with the hospital. If this entry is to prevail over the outcome in the police investigation, this Court opines that it was imperative for the Insurer to examine this Doctor who could have spoken about the source of the information [that Ms. Sushmitha S. Pai suffered injuries after being run over by a lorry], but this Doctor has not been examined. Therefore, this Court opines that this entry in the Medico-Legal Register by itself cannot overwhelm the outcome of the investigation. 12. Mr. Nivrtee Raosaheb Magar [RW2] is examined as an Expert. It is settled that though an Expert's opinion need not be corroborated, it must be - 12 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 examined with all caution considering all the relevant circumstances as borne out by the evidence and that in appropriate cases, even corroboration may be insisted. Further, it is settled that an Expert only deposes and does not decide, and that the Courts must decide based on the Expert's opinion taking into consideration all the relevant circumstances as borne out by the evidence1. Even if this Court were to refrain from commenting on the competence of RW2 to depose as an Expert, this Court is not persuaded to opine that the reasons stated by this witness overwhelms the outcome in the investigation for the following reasons. 13. Mr. Nivrtee Raosaheb admits that his team has not seen the condition of the Scooter immediately after the accident and that his team has gone by the image of the Scooter that is sent in the year 2021. For the damage to the scooter to be a 1 Murari Lal v. State of MP reported in 1980 AIR 531. - 13 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 material circumstance, such damage must be as of the date of the accident. Therefore, the team should have captured the damage to the Scooter as of the date of the accident and rendered an opinion based on such damage. In the absence of evidence on the damage to the scooter as of the date of the accident, the conclusion based on the damage as seen in 2021 will not be relevant. 14. Mr. Nivrtee Raosaheb states that his team comprises of qualified Doctors who have gone through the Post-Mortem Report, but he does not identify the Doctors, and crucially, the Doctors, are not examined. The witness states that Ms. Sushmitha S Pai has suffered ‘crush-type injuries’. The Post- Mortem Report does not mention the injury thus. This Report states that the Ms. Sushmitha S Pai had suffered a compression injury. This Court has examined the photographs [which are part of the records as Ex. P 21]. - 14 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 15. Mr. Nivrtee Raosaheb has next spoken about the force that must be applied if a person has to suffer head injuries, but without scientific explanation that could persuade this Court, notwithstanding all other circumstances, to conclude that this solitary circumstance must prevail as against the claimants. In the light of the afore, this Court opines that the Tribunal has not erred in its finding that Ms. Sushmitha S. Pai had died because of the injuries suffered in the manner that is stated by the claimants. 16. The next question is whether this Court must interfere with the quantum of compensation. It is undisputed that (i) Ms. Sushmitha S. Pai was working with M/s. DELL EMC Software and Services India Private Limited, (ii) she was aged 24 years, and she, while in employment, was pursuing further studies, and (iii) she was employed based on her - 15 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 Post-Graduation in Engineering. The Tribunal has computed Loss of Dependency taking her income at Rs.1,36,516/- per month relying upon the last payslip and adding 50% thereof as Future Prospects. 17. Mr. A. N. Krishna Swamy submits that the Tribunal should not have considered only the last payslip and that it should have considered all the payslips marked as Exb.P-13 in deciding on the actual income as of the date of the accident. The learned counsel submits that when all the payslips are considered, it will emerge that Ms. Sushmitha S. Pai was paid a certain educational allowance as reimbursement of the expenditure incurred for the months of October, December and March 2018 and April 2019. The learned counsel relies upon the evidence of PW2 - Mr. Roopesh Desilva - a Senior Advisor with the employer. - 16 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 18. It emerges from Ex.P13 and the evidence of the aforementioned witness that indisputably Ms. Sushmitha S. Pai’s last drawn salary was Rs.63,360/- commensurate with the salary that she was paid minus the allowance towards education and for a few months amounts are credited as reimbursement of educational allowance. This Court opines that the Tribunal has erred in relying upon the pay slip which included the reimbursement of the Education Allowance. The Loss of Dependency must be computed taking Rs.63,360/- per month. 19. The Tribunal has added 50% of the income towards Future Prospects because Ms. Sushmitha S. Pai was aged 24 years and was in permanent employment. Mr. A. N. Krishna Swamy cannot dispute that there must be an addition towards Future Prospects depending on Ms. Sushmitha S. Pai’s age, but he asserts that the Tribunal could not have taken 50%. The learned - 17 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 counsel contends that the addition towards Future Prospects should only be 40%. 20. Mr. A. N. Krishna Swamy argues that nothing is brought on record to show that Ms. Sushmitha S. Pai was assured of employment with M/s. DELL EMC Software and Services India Private Limited until a particular age. The overwhelming evidence is that she was on a contractual employment subject to the vagaries of benching and dismissal even before the contractual period subject to notice. 21. This Court finds considerable force in this submission though Mr. K. T. Gurudeva Prasad argues otherwise. This Court opines that to be treated as a permanent employee, it will be incumbent to show that the concerned was assured of a tenure unless the service is terminated on specified grounds of misconduct. As such, the addition towards the loss of Future Prospects must - 18 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 be at 40%. In addition, the claimants would be entitled for Loss of Consortium and Conventional Heads as awarded. 22. Both Mr. A. N. Krishna Swamy and Mr. K. T. Gurudeva Prasad are heard on what should be the deduction towards Income Tax in the light of the amounts that are deducted towards Income Tax as seen in the payslip. This Court must record that the unanimous submission is that there need not be a deduction for the first Rs.2,50,000/- and for the remaining amount, the deduction should be at 10%. Further, there must be deduction of Rs.2,400/- from the annual income towards Professional Tax. 23. The loss of dependency will be as follows when computed with these parameters and deduction towards personal expenses at half [because Ms. Sushmitha S. Pai was not married] retaining the multiplier of '18'. - 19 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 The Computation of Loss of Dependency will be: Computation of Loss of Dependency Monthly Income Rs.63,360/- Annual Income Rs.7,60,320/- Deduction towards Income Tax and Professional Tax – 10% of Rs.5,10,320/- [Rs.7,60,320 – Rs.2,50,000] and Rs.2400/- Rs.53,432/- Net Annual Income Rs.7,06,888/- Annual Income with Future prospects at 40% Rs.9,89,643/- Deduction at 1/2 towards personal expenses Rs.4,94,821 - Loss of dependency with multiplier of '18' Rs.89,06,788/- The Claimants will be entitled to loss of consortium and conventional heads respectively in Rs.80,000/- and Rs.30,000/-. Thus, the Claimants will be entitled to a total sum of Rs.90,17,000/- [Rs.90,16,778 is rounded of] as against Rs.1,96,68,000 awarded by the Tribunal. - 20 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 The Comparative Table by the Tribunal and by this Court is as follows: By the Tribunal By this Court Loss of dependency Rs.1,95,57,666/- Rs.89,06,788/- Loss of Estate Rs.15,000/- Rs.15,000/- Towards funeral and obsequies ceremonies Rs.15,000/- Rs.15,000/- Loss of Consortium Rs.80,000/- Rs.80,000/- Total Rs.1,96,67,666/- Rs.90,16,778/- Rounded Off Rs.1,96,68,000/- Rs.90,17,000/- 24. In the light of the afore, the following: ORDER The appeal is allowed in part, and the impugned Judgment and Award dated 16.06.2022 in M.V.C.No.5059/2019 on the file of the V Additional Small Causes Judge and XXIV ACMM, Member, MACT, Bengaluru [for short, 'the Tribunal'] is modified granting a sum of Rs.90,17,000/- to the first and second respondents – the claimants. - 21 - HC-KAR NC: 2025:KHC:23661-DB MFA No. 6215 of 2022 The Registry is directed to transmit the amount in deposit to the Tribunal for disbursement, subject to the Tribunal's order on apportionment and deposit. SD/- (B M SHYAM PRASAD) JUDGE SD/- (G BASAVARAJA) JUDGE RB