- 1 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 2269 OF 2017 (MV) BETWEEN: LAXMAN POOJARY AGED ABOUT 38 YEARS, R/O KULUNJE CHATRAMANE, KULUNJE VILLAGE AND POST, KUNDAPURA TALUK, PIN CODE:576225. …APPELLANT (BY MISS SWATI G HEGDE, ADVOCATE FOR SRI. H PAVAN CHANDRA SHETTY, ADVOCATE) AND: 1. K LAXMIKANTH HAVALDAR AGED ABOUT 48 YEARS, S/O.K.PRABHAKAR HAVALDAR, R/O RADHA SADAN, KANVERSINGH ROAD, KUNDAPURA KASABA, KUNDAPURA TALUK, PIN CODE:576225. 2. NATIONAL INSURANCE CO.LTD. BRANCH OFFICE:GANESH MAHAL, MUNICIPAL MAIN ROAD, KUNDAPURA, UDUPI DISTRICT, PIN CODE:576225. 3. PREMALATHA G AGED ABOUT 45 YEARS, W/O.GANESH SHEREGAR, R/O.VASANA MANE, UPPINAKUDRU VILLAGE, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGHCOURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 KUNDAPURA TALUK, PIN CODE:576225. 4. SHANKAR POOJARY AGED ABOUT 39 YEARS, S/O KOTI POOJARY, R/O HOSAMATA, AVARASE VILLAGE AND POST, UDUPI TALUK & DISTRICT. PIN 576101. 5. THE ORIENTAL INSURANCE CO.LTD. DIVISIONAL OFFICE, 3RD FLOOR, VISHNU PRAKASH BUILDING, COURT ROAD, UDUPI-576101. …RESPONDENTS (BY SMT. GEETHA RAJ, ADVOCATE FOR R2 SRI. DEEPU G, ADVOCATE FOR SRI. K N SRINIVASA, ADVOCATE FOR R5 NOTICE TO R1, R3 & R4 IS HELD SUFFICIENT V/O DTD 17.11.2023) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 16.11.2015 PASSED IN MVC NO.849/2009 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MACT UDUPI (SITTING AT KUNDAPURA) KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND ETC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT The above appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 19881 challenging the judgment and award dated 16.11.2015 passed in MVC 1 Hereinafter referred to as ‘Act of 1988’ - 3 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 No.849/2009 by the Additional District and Sessions Judge and MACT, Udupi (sitting at Kundapur), Kundapur,2 wherein the Tribunal has dismissed the claim petition. 2. For the sake of convenience, the parties herein are referred as per their rank before the Tribunal. 3. Claiming compensation for the injuries sustained in the accident stated to have occurred on 31.12.2005, the claimant filed a claim petition contending, inter alia, that on the date of the accident he was travelling as a pillion rider on a motorcycle being driven by one Mr.Shankara Poojari and when they were traveling, a lorry bearing No.MYY-6586 was going ahead of the motorcycle. That when the motorcycle overtook the said lorry, another lorry bearing No.KA-20-4902 came from the opposite direction at a high speed and hit against the motorcycle, on which the claimant was travelling causing the accident in question. In the claim proceedings, the owner and insurer of lorry bearing No.KA-20-4902 were arrayed as respondent Nos.1 and 2, respectively, the owner of lorry bearing No.MYY-6586 was arrayed as respondent No.3 and the 2 Hereinafter referred to as ‘Tribunal’ - 4 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 owner and insurer of the motorcycle were arrayed as respondent Nos.4 and 5. 4. In the claim proceedings, respondent Nos.2, 3 and 5 filed their statement of objections, wherein they denied the occurrence of the accident as averred by the claimant. Respondent No.2 – insurer of the lorry bearing No.KA-20-4902 has specifically averred that the insured lorry did not meet with an accident and a fabricated story has been put forth by the claimant. The respondent No.3 - owner of lorry bearing No.MYY-6586 admitted that when the rider of the motorcycle overtook lorry bearing No.MYY-6586, another lorry bearing No.KA-20-4902 came from the opposite direction at a high speed and hit the motorcycle causing the accident in question. Respondent No.5 – insurer of the motorcycle has specifically contended that the said accident was caused due to the actionable negligence of both the lorry drivers and that the accident did not take place due to the rash and negligent driving of the rider of the motorcycle. 5. The claimant examined himself as PW.1 and a doctor as PW.2. No oral or documentary evidence was adduced - 5 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 on behalf of the respondents. The Tribunal by its judgment and award dated 16.11.2015 dismissed the claim petition. Being aggrieved, the present appeal is filed by the claimant. 6. Learned counsel Smt.Swathi G.Hegde, appearing on behalf of the learned counsel Sri H.Pavan Chandra Shetty, for the appellant/claimant assailing the findings of the Tribunal on negligence contends that although pursuant to the complaint given by the driver of lorry bearing No.MYY 6586, FIR No.208 (Ex.P1) has been lodged (which was later converted into CC.No.3236/2005), wherein the charge sheet has been filed against the rider of the motorcycle and a private complaint (Ex.P5) was filed by the claimant, pursuant to which FIR No.11 (Ex.P4) lodged on 23.1.2006 having been closed pursuant to a ‘B’ report filed by the police authorities, the claimant being pillion rider of the motorcycle, is entitled for compensation from the owner and insurer of the motorcycle (respondent Nos.4 and 5). It is further contended that adequate compensation also be awarded in the present appeal. 7. Per contra, learned counsel Smt.Geetha Raj, appearing for respondent No.2 – insurer of the lorry bearing - 6 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 No.KA-20-4902 contends that in the complaint lodged immediately after the accident, the charge sheet has been filed against the rider of the motorcycle and there is mention of only lorry bearing No.MYY-6586. That the mention of lorry No.KA- 20-4902 is only in the private complaint filed by the claimant. That the involvement of lorry bearing No.KA-20-4902 having been disputed, the dismissal of the claim petition against respondent Nos.1 and 2 is just and proper. 8. Learned counsel Sri K.N.Srinivasa, for respondent No.5 – insurer of the motorcycle vehemently contends that in the claim petition the claimant has averred that the accident occurred due to the rash and negligent driving of the drivers of lorries bearing Nos.MYY-6586 and KA-20-4902. The claimant himself not having averred any actionable negligence against the rider of the motorcycle, the question of fastening any liability on the owner and insurer of motorcycle (respondent Nos.4 and 5) does not arise and justifies the dismissal of the claim petition. 9. The submissions of the learned counsels for the parties have been considered and the material on record - 7 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 including the records of the Tribunal have been perused. The questions that arise for consideration are: i. Whether the Tribunal was justified in dismissing the claim petition on the ground that the involvement of lorry bearing No.KA-20-4902 is not proved? ii. Whether the compensation is liable to be granted for the injuries in the accident which took place on 31.12.2005 to the claimant? iii. If the question Nos.(i) and (ii) are answered in the negative and positive respectively, what is the quantum of compensation to be awarded as also the interest? Re. question Nos.(i) and (ii): 10. Admittedly, the claimant was traveling on the motorcycle bearing No.KA-20-R-1171 as a pillion rider. Although, in the claim petition he has averred that when the rider of the motorcycle had overtaken lorry bearing No.MYY- 6586, another lorry bearing No.KA-20-4902 came from the opposite direction and hit the motorcycle of the claimant, it is pertinent to note that in the FIR and charge sheet filed pursuant to the complaint lodged by the driver of the lorry bearing No.MYY-6586, a charge sheet had been filed against the rider of the motorcycle. It is also forthcoming from the - 8 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 record that in CC No.3236/2005, the rider of the motorcycle has been acquitted. The private complaint filed by the claimant against the driver of the lorry bearing No.KA-20-4902 has resulted in filing of a ‘B’ report by the police authorities. 11. Although, the involvement of lorry bearing No.KA- 20-4902 itself is being disputed, having regard to the admitted position that the accident occurred between the motor cycle bearing No.KA-20-R-1171 and lorry bearing No.MYY-6586 and the charge sheet having been filed against the rider of the motorcycle, the claimant in the claim proceedings is to be construed as a third party vis-à-vis the motorcycle for the purpose of assessing the claim made under the provisions of the Act of 1988 for payment of the compensation. 12. Although, it is the vehement contention of the learned counsel for respondent No.5 that in the claim petition the claimant has asserted actionable negligence against the drivers of both the lorries and in view of the same, it is not open for a finding to be recorded that the rider of the motorcycle was responsible for causing the accident, it is - 9 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 pertinent to note that while adjudicating a claim proceedings the Court/Tribunal is not bound by the strict rules of pleadings. 13. In view of the admitted position that the charge sheet is filed against the rider of the motorcycle and since the claimant was traveling on the motorcycle as a pillion rider, the claim made by the claimant in the proceedings under the Act of 1988 are required to be construed from the perspective of the claimant being a third party vis-à-vis the owner and insurer of the motorcycle. 14. It is pertinent to note that the Tribunal, merely noticing that the involvement of lorry bearing No.KA-20-4902 itself being doubtful erred in dismissing the claim petition having regard to the fact that the charge sheet consequent to the occurrence of the accident was registered against the rider of the motorcycle and the claimant was traveling as a pillion rider in the said motorcycle. 15. In view of the discussion made above, it is required to be held that the owner and insurer of the motorcycle, namely respondent Nos.4 and 5 are jointly and severally liable to pay the compensation vis-à-vis the claim made by the - 10 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 claimant. Accordingly, question No.(i) is answered in the negative and question No.(ii) is answered partly in the affirmative as noticed above. Re. question No.(iii): 16. Under normal circumstances, having regard to the fact that the claim petition has been dismissed and the quantum of compensation has not been assessed by the Tribunal, this Court would remand the matter to the Tribunal for assessment of compensation, however having regard to the fact that the accident has occurred on 31.12.2005 and nearly 20 years have elapsed from the said date, it is deemed expedient that the quantum of compensation be assessed in the present appeal itself. 17. The claimant is aged 30 years as averred in the claim petition. Although, in the wound certificate (Ex.P7) the age of the claimant is mentioned as 27 years, since in the claim petition itself it is averred that the claimant is aged 30 years, the same is assessed as the age of the claimant and the appropriate multiplier to be applied is ‘17’. - 11 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 18. It is stated that the claimant was a laterite stone cutter and earning annual income of `40,000/-. However, no documents have been produced to demonstrate his income. Having regard to the date of the accident, the monthly income of the claimant is assessed as `3,500/- p.m. 19. The wound certificate (Ex.P7) discloses that the claimant has sustained fracture of the left side frontal bone. The medical bills (3 in Nos.) produced cumulatively as Ex.P11 are for a sum of `2,394/-. Hence, it is just and proper that the medical expenses be assessed as `3,000/-. 20. The doctor (PW.3) has deposed regarding the injuries sustained in the accident and that there is loss of vision in the right eye and the visual disability is 30%. The disability certificate (Ex.P13) discloses that the left eye is normal and that the vision in the right eye is impaired. The claimant has been treated as an inpatient from 31.12.2005 to 2.1.2006 i.e., for a period of 3 days. 21. It is evident from the hospital records (Ex.P12) that the claimant has sustained coloboma of the iris in respect of right eye and that the same was resulted in partial loss of - 12 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 vision. Keeping in mind the loss of earning capacity as mentioned at Sl.No.26A of Schedule II of the Employees Compensation Act, 1923 as well as the testimony of the doctor, it is just and proper that the disability of the claimant be re- assessed as 20%. 22. In view of the aforementioned, the compensation is re-assessed as follows: 22.1 Having regard to the nature of injuries sustained, the compensation towards pain and suffering is assessed as `25,000/-; 22.2 The laid up period is assessed as two months and accordingly, a compensation of (`3,500/-x 2) `7,000/- is awarded towards the same; 22.3 The compensation towards food, nourishment and attendant charges is assessed having regard to the nature of injuries sustained as well as the period of treatment in a sum of `5,000/-; - 13 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 22.4 Having regard to the nature of injuries sustained and the resultant disability, the loss of amenities is assessed as `20,000/-; 22.5 The loss of future earning capacity is assessed as (`3,500/-x12x17x20%) `1,42,800/-. 23. Since the accident is of the year 2005, the interest is awarded at 6% p.a. 24. Accordingly, the claimant is entitled to a compensation as under: Sl. No. Heads Amount awarded by this Court (`) 1. Towards pain and suffering 25000.00 2. Towards medical expenses 3000.00 3. Loss of income during laid up period 7000.00 4. Loss of amenities 20000.00 5 Food, nourishment and attendant charges 5000.00 6 Loss of future earning capacity 142800.00 Total 202800.00 25. In view of the aforementioned, question No.(iii) is answered holding that the claimant is entitled to compensation - 14 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 of `2,02,800/- together with interest at 6% p.a., from the date of petition till date of payment. 26. Hence, the following: ORDER i. The above appeal is allowed in part; ii. The judgment and award dated 16.11.2015 passed in MVC No.849/2009 by the Additional District and Sessions Judge and MACT, Udupi (sitting at Kundapur), Kundapur, dismissing the claim petition is set aside; iii. MVC No.849/2009 on the file of the Additional District and Sessions Judge and MACT, Udupi (sitting at Kundapur), Kundapur, is partly allowed and it is held that the claimant is entitled to a total compensation of `2,02,800/- with interest at 6% p.a., from the date of petition till date of payment; iv. The owner and insurer of the motorcycle i.e., respondent Nos.4 and 5 are jointly and severally liable to pay the compensation awarded and respondent No.5 is directed to deposit the compensation amount together with accrued interest within a period of six weeks; v. Upon such deposit, 70% of the compensation amount together with accrued interest shall be released in favour of the claimant and remaining 30% of the - 15 - HC-KAR NC: 2025:KHC:27413 MFA No. 2269 of 2017 compensation together with accrued interest shall be deposited in a Fixed Deposit in any nationalized bank of the choice of the claimant for a period of two years, upon the expiry of which, the said amount together with accrued interest shall be released in favour of the claimant without any further orders either from this Court or from the Tribunal with regard to the same; vi. Registry to transmit the records to the Tribunal forthwith; vii. Registry to draw the award accordingly. No costs. Sd/- (C.M. POONACHA) JUDGE ND List No.: 1 Sl No.: 32