- 1 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 735 OF 2015 (MV-I) BETWEEN: KUM. PAVITHRA C.P D/O C.L. PANCHAKSHARAIAH, AGED ABOUT 13 YEARS, R/AT CHAKRABHAVI, MADIBAL HOBLI, MAGADI TALUK, RAMANAGARAM DSITRICT (PERMANENT ADDRESS). R/AT NO.15, 2ND MAIN, 2ND CROSS, ANJANA NAGAR, SUNKADAKATTE , VISHWANEEDAM POST, MAGADI MAIN ROAD, BENGALURU-560 091 (PRESENT ADDRESS). APPELLANT BEING MINOR REPESENTED BY HER FATHER AND NATURAL GUARDIAN SRI. C.L. PANCHAKASHARAIAH, S/O LINGAIAH, AGED ABOUT 39 YEARS. …APPELLANT (BY SMT. SREEVIDYA G.K., ADVOCATE FOR SRI. T.N. VISWANATHA,ADVOCATE) Digitally signed by ANNAPURNA G Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 AND: 1. M/S. ICICI LOMBARD GENERAL INSURANCE CO.LTD NO.89, 2ND FLOOR, SVR COMPLEX, HOSUR MAIN ROAD, MADIVALA, BENGALURU-560 068. 2. MR VENKATESH S/O SRI NAGANNA, MAJOR, R/AT NO.309, 2ND 'B' MAIN ROAD, OMBR LAYOUT, BANASWADI, BENGALURU-560 043. …RESPONDENTS (BY SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R1, R2 IS SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.09.2014 PASSED IN MVC NO.2568/2013 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MEMBER,MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA - 3 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 ORAL JUDGMENT This appeal is filed by the claimant challenging the judgment and award dated 26.09.2014 passed by the XVI Additional Judge, Court of Small Causes, MACT, Bengaluru (SSCH-14) (for short 'the Tribunal) in MVC.No.2568/2013. 2. The parties are referred to as per their ranking before the Tribunal. 3. The brief facts of the case of both the parties are as under: On 10.03.2013, at around 6.30 p.m., the petitioner was traveling as a pillion rider on motor cycle bearing registration No.KA-51-X-8900 and one Byraiah was riding the motor cycle, when they reached near Basavanna Temple, the rider of the said motorcycle rode the vehicle in a rash and negligent manner and suddenly applied brake to avoid pot hole due to which, the pillion rider fell down and sustained injury to left forearm. The petitioner was taken to KIMS hospital, wherein she was admitted as an in-patient. She was studying in the 6th standard, and due to the accident, she lost an academic year. - 4 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 The father of the petitioner has spent Rs.50,000/- towards medical expenses, conveyance and nourishment. With these reasons, prayed to award compensation of Rs.5,00,000/-. 4. Respondent No.1 is the insurer, respondent No.2 is the owner of the said vehicle. Respondent No.2 remained ex- parte before the Tribunal. Respondent No.1 in its objection denied the contentions of the claimant and it also denied its liability to pay the compensation. It further contended that the complaint was lodged after 10 days from the date of accident. The prosecution record revealed that the rider was falsely implicated just to claim compensation from respondent No.1. With these reasons, prayed to dismiss the claim petition. 5. From the rival contentions of the parties, the Tribunal framed the necessary issues. 6. The Tribunal recorded the evidence. The claimant to prove her case examined her guardian as PW-1 and examined doctor, who gave disability certificate as PW-2. - 5 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 The claimant marked Exs.P1 to P18. Respondent No.1 examined one witness as RW-1 and examined documents at EXs.R1 to R3. After hearing both the parties, the Tribunal held that the accident occurred due to involvement of the said vehicle. The Tribunal upheld the contention of respondent No.1 that rider of the motor vehicle was falsely implicated in the charge sheet and that he was not riding the vehicle. Therefore, the Tribunal absolved respondent No.1-insurer from the liability to pay compensation and directed respondent No.2 to pay the compensation of Rs.2,07,000/- with interest @ 9% per annum. 7. I have heard the arguments of learned counsel for both the parties. 8. Learned counsel for the appellant/claimant contended that mere delay is not a reason to suspect the case of the claimant. Consistently, PW-1 has stated about the involvement of the vehicle and that Byraiah was riding the said vehicle. The respondent except examining RW-1, has not led any other evidence and RW-1 in her cross-examination has - 6 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 stated that she has not recorded the statement of any witness and her assistant has recorded the statement of witness. Therefore, her evidence is not primary evidence. The concerned person who recorded the evidence of witness or the concerned witness was not examined by the insurer. The Tribunal has not considered the said fact. The Tribunal answered Issue No. 1 in the affirmative and held that the said vehicle was involved in the accident. However, it absolved the insurer from its liability solely on the ground of suspicion. The said finding is erroneous. Therefore, prayed to modify the same. 9. Learned counsel for the appellant further submitted that the claimant was aged about 11 years at the time of accident. As per the evidence of PW-2 she has suffered permanent disability of 18% to the whole body. The Tribunal taking into account of her age, awarded compensation of Rs.2,07,000/-. 10. Learned counsel for the appellant also relied on the judgment of Mallikarjun Vs. Divisional Manager, The - 7 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 National Insurance Co. Ltd and Ors1 submitted that in view of the law laid down in the above said case, Rs.3,00,000/- compensation may be awarded to the claimant in addition to the medical bill and prayed to allow the appeal. 11. Learned counsel for respondent No.1 contended that the rider of the motorcycle was not Byraiah. According to the investigation conducted by a private agency appointed by respondent No.1, it was actually Byraiah’s uncle, who was riding the vehicle, and he did not possess a valid driving license to operate the said motorcycle. Therefore, in order to claim compensation from the insurer, Byresh, who held a valid driving license, was falsely implicated as the rider at the time of the accident. The Tribunal considered the evidence of RW-1 and rightly absolved respondent No.1 from its liability to pay compensation, which does not warrant interference by this Court. He further submitted that, in the event this Court finds the said conclusion is erroneous, the interest awarded by the Tribunal be reduced to 6% per annum, since respondent No.1 was exonerated from liability by the Tribunal, to pay 1 AIR 2014 SC 736 - 8 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 compensation. Insurer has no opportunity to challenge the judgment, as it was not necessary. Therefore, he prayed to consider the said submission and pass suitable orders. 12. From the rival contentions of the parties, before the Tribunal as well as before this Court, the fact of the accident and involvement of the said vehicle and injury to the claimant are not seriously disputed. The Tribunal in this award at paragraph Nos.12 and 13 considered these facts in detail and awarded following amount of compensation. SL.No. Particulars Amount in (Rs.) 1. Medical expenses 32,000 2. Permanent disability 1,00,000 3. Pain and sufferings 40,000 4. Nourishment and attendant charges 10,000 5. Conveyance 5,000 6. Loss of amenities 10,000 7. Loss of income of PW.1 10,000 Total Rs.2,07,000/- It is the contention of the claimant that compensation awarded is on the lower side. Therefore, she seeks for enhancement of the compensation. 13. The Tribunal in all awarded compensation of Rs.2,07,000/-. The Tribunal considered disability of claimant at - 9 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 10% to the whole body. The Tribunal awarded Rs.32,000/- towards medical expenses and remaining amount pertaining to pain and suffering and other heads. According to the claim petition and evidence of PW-1, claimant was aged 11 years at the time of accident. Considering the facts and circumstances and also disability, compensation requires to be enhanced as per the law laid down in the case of Master Malikarjuna referred supra in paragraph Nos.12 of the said judgment, the Hon’ble Apex Court held as under: 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. 14. Therefore, the claimant is entitled for following amount of compensation. - 10 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 Sl.No. Particulars Amount (in Rs.) 1. Pain and suffering 3,00,000 2. Medical expenses 32,000 Total 3,32,000 Amount awarded by Tribunal 2,07,000 Enhancement 1,25,000 15. The next question which pertains is i. Whether Byraiah was riding the vehicle at the time of accident? 16. PW-1 is the guardian as well as the father of the claimant. In his evidence he has reiterated the petition averments. Admittedly, he was not an eye witness to the incident. In his cross-examination he learnt that the said Byraiah was riding the motor cycle. He denied the suggestion that the motorcycle was not insured and that, after 10 days of the incident, he lodged a false complaint involving the motorcycle belonging to respondent No.2. He also denied the suggestion that Byraiah was not riding it at the time of the accident. 17. Learned counsel for the insurer contended that the claimant was aged about 11 years and she was studying in 6th - 11 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 standard at the time of the accident. The claimant did not examine any other eyewitnesses; however, there was no obstacle preventing her from entering the witness box and giving evidence before the Court. It is true that she was around 11 years old at the time of the incident, but the evidence was recorded nearly one and a half years later. By then, she could have appeared before the Court and narrated the facts of the case. Nevertheless, her absence from the witness box cannot be a ground to deny her claim or to draw an adverse inference. 18. The complaint was filed on 20.03.2013, although the incident occurred on 10.03.2013. It was stated in the complaint that the delay was due to the complainant attending to the injured in the hospital, which prevented him from lodging the complaint earlier. After concluding the investigation, the Investigating Officer submitted a charge sheet against Byresh. None of the documents from the criminal case indicate that Byresh was falsely implicated in this accident. Moreover, there is no reference in any documents that petitioner’s uncle was riding the motorcycle. Even during the cross-examination of - 12 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 PW-1, respondent No.1 was unable to elicit any admission to support such a claim. 19. RW-1 is the investigating officer appointed by respondent No.1. RW-1 in her evidence has stated that she was appointed as investigator by the insurance company. She conducted the investigation, collected the documents and submitted her report to the respondent No.1 on 27.08.2013. According to her, uncle of the minor claimant was riding the said vehicle at the time of the accident. In her cross- examination, she pleads ignorance about the registration of the charge sheet against the rider/owner of the motor cycle. She gave report on the basis of the statement of the mother of the victim/claimant, She came to know that Byresh was not riding the vehicle. Her assistant informed to her the said fact. She personally has not investigated any fact in this case. She has not examined the said Byraiah, as she was unable to meet him. She denied the suggestion that he submitted false report. 20. As rightly submitted by the learned counsel for the appellant, no witnesses were examined by the respondent No. 1 and no witness statements are said to be recorded by the - 13 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 investigating officer, the same has not been placed on record. Respondent No.1 neither led any evidence nor made any statement before her assistant. There were both an investigation and a counter-investigation in this matter. As per the Code of Criminal Procedure, it is the police who are authorized to investigate the case and submit a charge sheet, on the basis of the evidence of eye witnesses. RW-1 has not personally investigated the case, therefore, her evidence is of limited relevance and cannot be relied upon to discredit the investigation conducted by the police. Respondent No.1 produced a CD before the Tribunal; however, the Tribunal has not noted in the impugned judgment that the CD was played in open court. 21. Unfortunately the CD was corrupt and unable to play the same before this Court. Learned counsel for respondent No.1 submitted that the company has no other copy of the CD and he was unable to produce readable copy of the said CD. Therefore, there is insufficient evidence to support the contention of respondent No.1–insurer that the claimant's uncle was riding the vehicle at the time of the accident, without a valid and effective driving license. - 14 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 22. It is undisputed that the offending vehicle was insured with respondent No.1 and that the policy was in force on the date of the accident. Accordingly, respondent No.1 is liable to indemnify and pay compensation to the claimant. Considering the submission of the claimant and looking at the peculiar facts and circumstances of the case, interest awarded by the Tribunal needs modification. 23. Accordingly, I proceed to pass the following ORDER i. The appeal is allowed in part. ii. The impugned judgment and award dated 26.09.2014 passed by XVI Additional Judge, Court of Small Causes, Bengaluru in MVC.No.2568/2013 is modified. iii. The claimant is entitled to enhancement of Rs.1,25,000/- with interest @ 6% per annum from the date of the petition till its realization. iv. Respondent No.1 shall deposit the said amount within a period of six weeks from the date of the award. - 15 - HC-KAR NC: 2025:KHC:25987 MFA No. 735 of 2015 v. Deposit and release of the amount is as ordered by the Tribunal. Send back the trial court records along with the copy of the judgment to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 40