- 1 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 22839 OF 2012 C/W MISCELLANEOUS FIRST APPEAL NO. 23410 OF 2012 (MV) IN MFA NO. 22839 OF 2012 BETWEEN: 1. SMT. BIBIJAN W/O. NASIRUDDIN KHAZI, AGE 43 YEARS, OCC: HOUSEHOLD WORK, R/O. DESAI ONI, GADAG. 2. SHRI. NASIRUDDIN SAYED KHAZI, AGE 46 YEARS, OCC: BUSINESS, R/O. DESAI ONI, GADAG. 3. KUMAR MUZAMMI S/O. NASIRUDDIN KHAZI, AGE 23 YEARS, OCC: BUSINESS, R/O. DESAI ONI, GADAG. 4. KUMAR SAMEER W/O. NASIRUDDIN KHAZI, AGE 20 YEARS, OCCL: STUDENT, R/O. DESAI ONI, GADAG. …APPELLANTS (BY SRI. SIDDAPPA SAJJAN, ADVOCATE) AND: 1. KOTRESH MALLAYYA BHIKSHAVATIMATH, AGE MAJOR, OCC: BUSINESS, R/O. BHAGEWADI, TQ: MUNDARGI. 2. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD, OPP. KITTLE COLLEGE, DHARWAD. …RESPONDENTS (BY SRI. M. K. SOUDAGAR, ADV. FOR R2; NOTICE TO R1 DISPENSED WITH) Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE AWARD DATED 05.04.2012 IN MVC NO.125/2011 PASSED BY DISTRICT JUDGE AND MACT GADAG BY ENHANCING THE COMPENSATION AMOUNT BY ALLOWING THE CLAIM PETITION OF THE APPELLANTS AND ETC. IN MFA NO. 23410 OF 2012 BETWEEN: THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD, DHARWAD, REP. BY THE AUTHORIZED SIGNATORY, DEPUTY MANAGER, NEW INDIA ASSURANCE CO. LTD, REGIONAL OFFICE, 2ND FLOOR, SHRINATH COMPLEX, NEW COTTON MARKET, HUBLI. …APPELLANT (BY SRI. M. K. SOUDAGAR, ADVOCATE) AND: 1. SMT. BIBIJAN W/O. NASIRUDDIN KHAZI, AGE 43 YEARS, OCC: HOUSEHOLD WORK, R/O. DESAI ONI, GADAG. 2. NASIRUDDIN SAYED KHAZI, AGE 46 YEARS, OCC: BUSINESS, R/O. DESAI ONI, GADAG. 3. KUMAR MUZAMMIL S/O. NASIRUDDIN KHAZI, AGE 23 YEARS, OCC: BUSINESS, R/O. DESAI ONI, GADAG. 4. KUMAR SAMEER S/O. NASIRUDDIN KHAZI, AGE 19 YEARS, OCC: STUDENT, R/O. DESAI ONI, GADAG. 5. KOTRESH MALLAYYA BHIKSHAVATIMATH, AGE MAJOR, OCC: BUSINESS, R/O. BHAGEWADI, TALUK: MUNDARGI. …RESPONDENTS (BY SRI. SIDDAPPA SAJJAN, ADVOCATE FOR R1 TO R4; NOTICE TO R5 IS SERVED) - 3 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.04.2012 PASSED IN MVC NO.125/2011, ON THE FILE OF MEMBER MACT GADAG BY ALLOWING THIS APPEAL WITH COST AND ETC. THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. MFA No.22839 of 2012 is filed by the claimant and MFA No.23410 of 2012 is filed by the insurer against the judgment and award dated 05.04.2012 passed in MVC No.125 of 2011 on the file of the MACT, Gadag (for short, ‘the Tribunal’). 2. The parties are referred to as per their rankings before the Tribunal. 3. Brief facts of the case are that on 18.03.2011 around 3:45 p.m. deceased Mohammad Hussain was going on a motorcycle bearing registration No.KA-26/Q-2582 as pillion rider. His brother Muzammil was riding the said motorcycle on Abbigeri-Kotumuchagi road. The said vehicle met with an accident near Abbigeri due to rash and - 4 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 negligent driving of tempo trax bearing registration No.KA- 26/M- 1981 (for short, ‘the offending vehicle’). As a result of which the said Mohammad Hussain sustained grievous head injuries and succumbed to the injuries on the spot. It is further case of claimants that deceased was unmarried and aged 24 years at the time of accident. He was a fruit vendor and earning Rs.10,000/- per month. Claimants are his parents and brother. They were depending upon the earnings of deceased. With these reasons prayed to award compensation. 4. Respondent-Insurer of the offending trax denied the contention of the claim petition. Its liability is restricted to the terms and conditions of policy of insurance and holding of valid and effective driving licence by the driver of the offending vehicle. The accident had taken place due to negligence of rider of the motorcycle. The manner in which accident had taken place, indicates that motorcycle did not dash against the front portion of the offending vehicle, but rear side of the vehicle. With these reasons prayed to dismiss the claim petition. - 5 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 5. The Tribunal framed necessary issues. 6. Claimants to prove their case examined one witness as PW1 and marked 6 documents as per Exs.P1 to P6. Respondent No.2 examined one witnesses as RW1 and marked 4 documents as per Exs.R1 to R4. 7. The Tribunal after hearing both the parties held that accident had taken place due to the composite negligence of driver of the offending vehicle as well as rider of the motorcycle and their contribution was in the ratio of 75:25 and claimants are entitled for compensation of Rs.4,65,000/-. Dissatisfied by the findings of the Tribunal, both insurer as well as claimants have filed these appeals. 8. I have heard the arguments of both the parties. 9. Learned counsel for the insurer vehemently contended that accident itself is doubtful. Looking to the MVI report, damage to the offending vehicle was on rear side, if motorcycle hit against the front side of the offending vehicle, then in all probability there would be damage to the front portion of the offending vehicle. Even - 6 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 the damage to motorcycle was also towards the back portion. The spot sketch as well spot mahajar gives a wrong idea that accident had taken place at the wrong side to the driver of trax, which is also incorrect. Looking to the materials available on record, it clearly indicates that offending vehicle was falsely implicated in this case. In the alternative, he submits that accident had taken place due to composite negligence of rider of the motorcycle as well as driver of the trax. Their negligence is in the ratio of 50:50. 10. He further submits that amount of compensation awarded is on higher side and prays for reducing of the same. He further submits that no injury is caused to the rider of the motorcycle and if the accident had taken place as stated in the charge-sheet, in all probability rider of the motorcycle would have been sustained grievous injuries. It also indicates that the accident had not taken place as narrated in the charge- sheet and prayed for setting aside the impugned judgment passed by the Tribunal. - 7 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 11. Learned counsel for the claimants submits that investigating officer after investigating crime submitted the charge-sheet, holding that accident had taken place due to negligence of driver of trax. The driver of the trax has not challenged the charge-sheet. Even the insurer who has stepped into the shoes of owner of the vehicle, under Section 170 of the Motor Vehicles Act, did not challenge the said charge-sheet. Therefore they have no right to question the charge-sheet and its enclosures before this Court. 12. He further stated that place of accident is extremely on the left side of the rider of the motorcycle. Driver of the offending vehicle went to the wrong side of the road and hit against the motorcycle. The Tribunal had not considered these facts and erroneously held that accident had taken place due to composite negligence of rider of the motorcycle as well as driver of the trax. 13. He further contends that amount of compensation awarded by the Tribunal is on lower side. Income of the deceased was not properly considered, - 8 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 multiplier was taken on the basis of the age of youngest parent of the deceased, instead of age of the deceased, as per the judgment of the Hon’ble Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121. The amount of compensation on other heads is also on lower side, therefore, prayed for enhancement of the compensation and allowing of the appeal. 14. The following questions arise for determination by this Court: i. Whether the Tribunal erred in holding that accident had taken place due to composite negligence of rider of the motorcycle as well as driver of tempo trax in the ratio of 75:25? ii. Whether the Tribunal is justified in holding that accident had taken place due to rash and negligent driving of the offending vehicle by its driver? iii. Whether the compensation awarded by the Tribunal needs enhancement? 15. Question Nos.1 and 2 are interconnected therefore they are taken up together for discussion. - 9 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 16. Complaint was lodged by the younger brother of the deceased before the Naregal police station, wherein it is stated that accident had taken place due to rash and negligent driving of the trax by its driver. Date of accident is 18.03.2011 at 3:45 p.m. and complaint was lodged on next date at early morning. It is pertinent to note that if accident had taken place due to negligence of rider of the motorcycle, then why the driver of the offending vehicle did not file any complaint against the rider of the motorcycle, for the alleged negligence of the rider of the motorcycle? There is no explanation in this regard. 17. Learned counsel for the insurer mainly relied on the contents of Ex.P5 i.e., the MVI report. The damage to both the vehicles were at rear side, therefore it was not head on collusion as stated in the charge-sheet. Claimants suppressed true facts hence not reliable. Complainant is rider of motorcycle. He has narrated facts of accident. Respondents have not examined driver of trax to clarify the same. It is nobody’s case that accident occurred while - 10 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 both vehicles were reversing their respective vehicles. Only on the basis of damage to the vehicle entire scene of offence cannot be explained. At the most a doubt may arise about contents of Ex.P5. Even in Ex.P5, it is not mentioned by motor vehicles Inspector that it was a fresh damage. Admittedly RW1 is not the eyewitness; whatever evidence given before the Court by him, is based on the charge-sheet and its enclosures. They do not help to rebut the contention of the claimants. 18. This Court on 29.11.2022 after hearing the appeal on merits, remanded the case to the trial Court to record further evidence of claimant No.3 and submit the report about the involvement of the tempo trax bearing Reg. No. KA-26-Q-2582. The Tribunal has also examined one more witness on behalf of respondent No.2-insurer, i.e., the C.P.I. of Naregal Police Station i.e., the investigating officer. During the evidence of RW2, documents were marked at Exs.P.5 to P.47. In his cross- examination by the insurer, suggestion was made that “motorcycle went behind the offending tempo trax and - 11 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 dashed against its rear side because of which the accident had taken place”, said suggestion was denied by RW2. By the further cross-examination of PW2 and RW2, respondent No.2-insurer is not able to show that the said tempo trax was falsely implicated in this case. 19. Even the Tribunal rendered its additional opinion regarding implication of the said vehicle and the Tribunal is of the opinion that the said vehicle was involved in the accident. As stated above, in the cross examination or additional evidence recorded by the Tribunal as per the direction of this Court, no materials were placed by the respondent-insurer to prove that said vehicle was not involved in the accident. 20. The circumstances referred by the learned counsel for the respondent No.2, i.e., the insurer, noted above are not sufficient to discard or reject the chargesheet filed against the driver of the offending vehicle. Spot mahazar as well as map produced by the claimant reveals that tempo trax went to the wrong side of the road and hit against rider of the motorcycle. Not only - 12 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 that the tempo trax went ahead to an extent of a furlong from the spot of accident, it shows the speed and negligent driving of the tempo trax by its driver. 21. It was not brought out in the cross-examination of PW1 and PW2 that driver or owner of the said vehicle was a close friend or relative of claimants and in collusion with them vehicle was falsely implicated. As already discussed in the above paragraph, fact of accident was immediately reported to the Police and within a short time there may not be an opportunity to the complainant to deliberate, discuss and falsely implicate the vehicle. 22. For the above reasons the contention of Insurer that accident occurred due to negligence of rider of motorcycle is not believable. 23. The Tribunal in the absence of owner, rider and insurer of the motorcycle involved in the accident, tried to decide composite negligence of the rider of the motorcycle which is not permissible. If the accident had taken place in the middle of the road then it may be possible of occurrence of accident by composite negligence. In this - 13 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 case the accident occurred at the extreme wrong side to the driver of the tempo trax. Under such circumstances question of negligence of rider of motorcycle does not arise. 24. In the case of Khenyei Vs. New India Assurance Co. Ltd. reported in (2015) 9 SCC 273, the Hon’ble Supreme Court held as under: “The question also arises as to the remedies available to one of the joint tortfeasors from whom compensation has been recovered. When the other joint tortfeasor(s) have not been impleaded, obviously question of negligence of non-impleaded driver could not be decided. Apportionment of composite negligence cannot be made in the absence of impleadment of joint tortfeasor. Therefore, it would not be appropriate for the court/Tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tortfeasors. In such a case, impleaded joint tortfeasor should be left, in case he so desires, to sue the other joint tortfeasor in independent proceedings after passing of the decree or award.” - 14 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 25. In the above said case, the Hon’ble Supreme Court held that when accident occurred due to composite negligence of driver of two vehicles, the third party victim can claim compensation against either of the owner of vehicle and insurers of respective vehicles. In the absence of owner and insurer of one of such vehicle, negligence of driver of such vehicle cannot be determined. Claimant is entitled for compensation from any one of such joint tortfeasors. The principle of law laid down in the said judgment is applicable to the facts of the present case. Therefore the findings of the Tribunal that rider of the vehicle had contributed to an extent of 25% for causing the accident in question awarding global compensation is erroneous. 26. For the aforesaid discussion, the questions of law No.1 and 2 are answered against the insurer. 27. The Tribunal awarded compensation of Rs.4,20,000/- under the heading loss of dependency. Notional income determined by the trial Court is on the lower side. If the chart prepared by the Karnataka State - 15 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 Legal Services Authority is taken into consideration, the notional income of victim of an accident, occurred during the year 2011 is Rs.6,000/- per month. Same could be applied to the facts of the present case. 28. Deceased was aged about 24 years. As held by the Hon’ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Others reported in (2017) 16 SCC 680, 40% of his income shall be added towards future prospects. Multiplier shall be considered on the basis of age of the deceased. As held by the Hon’ble Supreme Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 the appropriate multiplier is ‘18’. 29. Undisputedly, the deceased was unmarried. Therefore 50% of his income shall be deducted towards personal expenses. On the basis of said figures, compensation is to be calculated under the heading loss of dependency. 30. As held by the Hon’ble Supreme Court in the case of Pranay Sethi (stated supra), the claimants are - 16 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 entitled for compensation under the conventional heads. Accordingly, compensation is re-calculated and following amount of compensation is awarded: 1. Loss of dependency (Rs.6,000/- + 40% x 12 x 18 x 2/3) 9,07,200.00 2. Loss of consortium (Rs.40,000/- x 4) 1,60,000.00 3. Loss of estate 15,000.00 4. Funeral expenses 15,000.00 Total 10,97,200.00 Rounded to 10,97,000.00 Award of Tribunal 4,65,000.00 Enhancement 6,32,000.00 24. The claimants are entitled for enhanced compensation of Rs.6,32,000/- with interest at the rate of 6% p.a. from the date of claim petition till realization. 25. For the aforesaid discussion, question No.3 framed above is answered partly in the affirmative and I proceed to pass the following order. ORDER (i) M.F.A. No. 23410/2012 filed by the insurer is dismissed; (ii) M.F.A. No. 22839/2012 filed by the claimants is allowed in part. Judgment and award dated - 17 - NC: 2025:KHC-D:6518 MFA No. 22839 of 2012 C/W MFA No. 23410 of 2012 05.04.2012 passed by District and Sessions Judge and Member, MACT, Gadag, in M.V.C. No. 125/2011 is modified. Claimants are entitled for enhanced compensation of Rs.6,32,000/- in addition to whatever amount awarded by the Tribunal, along with interest at the rate of 6% p.a. from the date of petition till its realization. (iii) Respondent No.2-insurer shall deposit the said amount within a period of six weeks from the date of award. Whatever amount deposited by the insurer shall be transmitted to the Tribunal. Send back the trial Court records along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE kgk, bvv /ct-an List No.: 1 Sl No.: 5