- 1 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 104370 OF 2023 (MV-I) C/W MFA CROSS OBJ NO. 100042 OF 2024 IN MFA NO. 104370 OF 2023 BETWEEN: THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD, HOTEL SANMAN TOURIST COMPLEX, CBS CIRCLE, KUSTAGI ROAD, GANGAVATI, KOPPAL DISTRICT, ITS AUTHORIZED SIGNATORY, DIVISIONAL MANAGER. …APPELLANT (BY SRI. S. S. KOLIWAD, ADVOCATE) AND: 1. SMT. NANNIMA BI W/O. MOULA SAB, AGE 53 YEARS, OCC: VEGITABLE VENDOR AND PETTY BUSINESS, R/O. 2ND WARD, BUKKASAGAR VILLAGE, TQ. HOSAPETE, DIST. VIJAYANAGARA, PIN-583201. 2. B. SURESH S/O. SURYA RAO, AGE 33 YEARS, OCC: DRIVER OF JCB, R/O. MUSTUR VILLAGE, TQ. GANGAVATI, DIST. KOPPAL, PIN-583227. Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 3. S. DADA PEER S/O. SHAIK MOHAMED, AGE MAJOR, OCC: BUSINESS, R/O. MEHABOOB NAGAR, 6TH WARD, TQ. GANGAVATI, DIST. KOPPAL, PIN-583227. …RESPONDENTS (BY SRI. ZANZA JOSHI, ADV. FOR SRI. GOURISHANKAR MOT, ADV. FOR R1; NOTICE TO R2 SERVED; NOTICE TO R3 HELD SUFFICIENT) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC NO.135/2020, PASSED BY IN THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, HOSAPETE, EXAMINE THE SAME AND SET ASIDE THE AWARD DATED 31.01.2023 AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE. IN MFA CROB NO.100042 OF 2024 BETWEEN: SMT. NANNIMA BI. W/O. MOULA SAB, AGE 54 YEARS, OCC: VEGETABLE VENDOR AND ALSO PETTY BUSINESS, R/AT. 2ND WARD, BUKKASAGAR VILLAGE, TQ. HOSAPETE, DIST. VIJAYANAGARA-583132. …CROSS OBJECTOR (BY SRI. ZANZA JOSHI, ADVOCATE) AND: 1. B. SURESH S/O. SURA RAO, AGE 34 YEARS, OCC: DRIVER OF J.C.B, - 3 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 R/AT. MUSTUR VILLAGE, TQ. GANGAVATI, DIST. KOPPAL-583282. 2. S. DADA PEER S/O. SHAIK MOHAMED, OWNER OF THE J.C.B, R/AT. MEHABOOB NAGAR, 6TH WARD, TQ. GANGAVATI, DIST. KOPPAL-583235. 3. THE MANAGER, UNITED INDIA INSURANCE COMPANY LTD, OFFICE AT. HOTEL SANMAN TOURIST COMPLEX, CBS CIRCLE, KUSTAGI ROAD, GANGAVATI, DIST. KOPPAL. …RESPONDENTS (BY SRI. S. S. KOLIWAD, ADV. FOR R3; NOTICE TO R1 & R3 SERVED) THIS MFA CROB IN MFA NO.104370/2023 IS FILED UNDER ORDER 41 RULE 22 OF CPC, PRAYING TO CALL FOR RECORDS AND MODIFY THE JUDGMENT DATED 31.01.2023 PASSED BY THE HON’BLE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C, CUM MEMBER, MACT-IV, HOSAPETE IN M.V.C NO.135 OF 2020 BY ENHANCING THE AWARD OF COMPENSATION IN VARIOUS HEADS WITH INTEREST OF 12% P.A. FROM THE DATE OF CLAIM PETITION BY ALLOWING THIS PETITION AND ON CONTRARY TO DISMISS THE APPEAL AS FILED BY RESPONDENT NO.3/INSURANCE COMPANY IN MFA NO.104370/2023 AND ETC. THIS APPEAL AND CROB, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. MFA No.104370 of 2023 is filed by the insurer and MFA Crob.No.100042 of 2024 is filed by claimant against the judgment and award dated 31.01.2023 passed by the learned Senior Civil Judge and JMFC cum Member, MACT-IV, Hosapete (for short, ‘the Tribunal’) in MVC No.135 of 2020. 2. Both these appeals arise out of common judgment therefore they are taken up together for disposal. 3. I refer to the parties as per their ranking before the Tribunal. 4. It is the case of claimant that on 03.01.2019 claimant met with an accident due to rash and negligent driving of JCB bearing No.KA-37/A-7931 as a result of impact, she sustained commuted fracture of 1/3rd of her left femur. She has taken treatment as inpatient and underwent surgery and spent huge amount towards treatment charges. She was aged 50 years at the time of - 5 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 accident. She was a vegetable vendor and earning Rs.12000/- per month. Due to the injuries sustained, she has been suffering permanent disability of 63%. With these reasons, prayed to award compensation of Rs.10,00,000/. 5. Respondent No.1 is a driver, Respondent No.2 is the owner of the vehicle and respondent No.3 is insurer of JCB. 6. Respondent Nos.1 and 2 did not appear before the Tribunal. Respondent No.3 filed written statement, contending that accident was caused due to rash and negligent driving of autorikshaw. Owner and Insurer of autorikshaw are necessary parties. Therefore petition is bad for non-joinder of necessary parties. Operator of the JCB had no valid and effective driving licence to drive the said class of vehicle. With these reasons, prayed to dismiss the claim petition. 7. From the rival contentions of the parties, Tribunal framed necessary issues. - 6 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 8. Claimant to prove her case examined two witnesses as PWs.1 and 2 and got marked 49 documents as per Exs.P1 to P49. Respondent No.3 marked one document as per Ex.R1. 9. The Tribunal after hearing both the parties and appreciating materials available on record, awarded the following compensation: i. Pain and suffering :Rs. 20,000.00 ii. Medical expenses :Rs. 24,230.00 iii. Loss of income during laid up period :Rs. 24,000.00 iv. Loss of future earning capacity :Rs.2,37,600.00 v. Loss of amenities and enjoyment of life :Rs. 10,000.00 vi. Conveyance and attendant charges :Rs. 10,000.00 Total :Rs.3,25,830.00 10. The Tribunal assessed age of the claimant as 55 years, income as Rs.12000/- per month, disability to the whole body at 15% and applied multiplier as 11 for calculating amount of compensation. Claimant found that the said amount of compensation awarded is inadequate and has filed MFA Crob.No.100042 of 2024, for enhancement. - 7 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 11. Respondent No.3 is challenging the award on the ground of its liability as well as quantum of compensation awarded. 12. Learned counsel for the insurer vehemently contends that, the Tribunal has taken income on a higher side and even disability assessed by the Tribunal is on higher side. Amount of compensation awarded on the conventional heads are also disproportionate, therefore prayed to re-calculate the same. 13. He further contends that driver/operator of the JCB has licence to drive LMV and also transport vehicle. He further contends that at the time of accident, transport licence given to driver had expired. The owner of the vehicle has violated the conditions of policy and therefore respondent No.3 is not liable to pay compensation. With these reasons prayed to fasten liability on the owner of the vehicle to pay compensation. 14. Learned counsel for the claimant contends that claimant had sustained fracture of left femur due to the said injury and she has been suffering from permanent - 8 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 disability. PW2 assessed disability at 63% of particular limb, however Tribunal has taken disability at 15% which is much on lower side. He further contends that as per the chart prepared by KSLSA, income of the victim of accident of the year 2013 could be considered as Rs.13,250/- per month. However the Tribunal has taken income at Rs.12,000/- per month. He further submitted that age of the claimant was 49 years as on the date of accident. However the Tribunal has taken age of the claimant as 55 years because of which applied multiplier 11. Assessment of the age of victim is also incorrect. He further contends that amount of compensation awarded under other heads are on lower side, therefore prayed for enhancement of the said amount. 15. Fact of the accident is not seriously disputed. The Tribunal after appreciating evidence available on record held that accident had taken place due to rash and negligent driving of JCB by its driver and the said finding is not challenged by either of the parties. - 9 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 16. Undisputedly claimant sustained fracture of left femur. Claimant in the pleading and evidence has stated that she was earning Rs.12,000/- per month by vending vegetables, same was accepted by the Tribunal. Without pleading and evidence, Court cannot hold that she was earning more than what she has pleaded. Hence submission of claimant in this regard is rejected. 17. According to the claimant she has been suffering from permanent disability. PW2 who has treated the claimant immediately after accident assessed disability at 63%. The Tribunal has considered the medical records as well as evidence of PW2 and rightly came to a conclusion that the disability of the claimant is 15%, it does not call for interference. 18. Claimant in her petition stated the age about 50 years at the time of accident. She has visited Puttur Hospital for treatment where in she must have stated her age as 55 years and that was noted in Ex.P7. In Ex.P18 i.e., the discharge summary given by SDM Hospital and College, her date of birth is stated as 29.02.1949. In - 10 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 Ex.P19 her age is mentioned as 50 years. There are some un-exhibited document that are kept along with exhibited documents i.e., discharge summary given by Sri Kotramma B.Chinniwalar Institute of Orthopedic & Trauma Care and KBCMC Hospital, Gangavathi, wherein her age is mentioned as 55 years. There is no consistency regarding the age of the claimant. 19. In MFA Crob., claimant filed I.A.No.2/2024 under Order XLI Rule 27 of CPC seeking permission to produce additional document. Along with it she has produced xerox copy of Aadhar card, which is attested, wherein her date of birth is mentioned as 01.01.1970. In the affidavit filed in support of I.A.No.2/2024 there is no explanation as to why this document was not placed before the Tribunal during cross of evidence. It is settled principal of law that under Order XLI Rule 27 of CPC, unless sufficient ground is made out before the appellate Court, parties cannot be permitted to lead additional evidence. Moreover she has not produced authenticated document to prove her date of birth. If she had produced - 11 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 date of birth certificate given by competent authority then the fact would be otherwise. Aadhar card is not proof of date of birth. Therefore, at this juncture permission sought by the claimant for leading additional evidence cannot be considered for the reason mentioned in the affidavit. 20. The matter was pending before the Tribunal for more than 3 years and during pendency of the case she did not produce relevant document to prove her age. Therefore helplessly Tribunal has considered age as 55 years. I do not find any fault in the said finding. 21. Learned counsel for the claimant submits that amount of compensation awarded under other conventional heads are also meager which needs enhancement. On perusal of the materials available on record it appears that the Tribunal has not awarded just compensation under the head of pain and suffering, loss of amenities, future un-happiness, attendant charges, conventional charges etc., and loss of income during laid of period, which needs to be enhanced. - 12 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 22. For the aforesaid discussions, the amount of compensation is re-calculated and following amount of compensation is awarded: i. Pain and suffering :Rs. 40,000.00 ii. Medical expenses :Rs. 24,230.00 iii. Loss of income during laid up period :Rs. 60,000.00 iv. Loss of future earning capacity :Rs.2,37,600.00 v. Loss of amenities and enjoyment of life :Rs. 50,000.00 vi. Conveyance and attendant charges :Rs. 30,000.00 Total :Rs.4,41,830.00 23. Hence the claimant is entitled for enhanced compensation of Rs.1,16,000/- (Rs.4,41,830/- less Rs.3,25,830/-) with interest at the rate of 6% per annum on the enhanced amount from the date of claim petition till its realization. 24. The contention of the insurer that driver of the JCB was not holding valid and effective driving is not accepted. The Division Bench of this Court in the case of M/s.Bajaj Alliance General Insurance Co.Ltd., Vs.Rambha Devi & Ors. in Civil Appeal No.841/2018 decided on 06.11.2024 held that JCB comes under the category of LMV and driver holding licence to drive LMV can drive JCB. In case of Mukund Dewangan - 13 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 Vs.Oriental Insurance Company Limited reported in (2017) 14 SCC 680, it is held that driver having LMV licence can drive transport vehicle also and there is no requirement of any endorsement on the said licence to drive transport vehicle. In view of the law laid down by the Hon’ble Apex Court as well as the Division Bench of this Court, insurer is liable to pay compensation. 25. For the aforesaid discussions, I pass the following: ORDER i. Appeal in MFA No.104370 of 2023 filed by the insurer is dismissed. ii. MFA Crob.No.100042/2024 filed by the claimant is partly allowed. iii. The impugned judgment and award dated 31.01.2023 passed by the learned Senior Civil Judge and JMFC cum Member, MACT-IV, Hosapete in MVC No.135 of 2020 is modified. iv. The claimant is entitled for enhancement of compensation of Rs.1,16,000/- with interest at the rate of 6% per annum from the date of petition till its realization. - 14 - NC: 2025:KHC-D:5069 MFA No. 104370 of 2023 C/W MFA.CROB No. 100042 of 2024 v. Respondent No.3 insurer of the said vehicle shall deposit the said amount within a period of 6 weeks from the date of receipt of the award. vi. Office shall transfer the amount deposited by the insurer to the Tribunal. vii. Deposit and release of the compensation is as per the order of the Tribunal. viii. Send back the TCR along with copy of this order to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 12