- 1 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 9215 OF 2013 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 1175 OF 2013 (MV) MISCELLANEOUS FIRST APPEAL NO. 1176 OF 2013 (MV) IN MFA No. 9215/2013 BETWEEN: SMT. AKKACHAMMA W/O BYCHAPPA AGED ABOUT 54 YEARS RA/AT ARAHALLI VILLAGE & POST KOLAR TALUK & DISTRICT …APPELLANT (BY SRI. GOPAL KRISHNA N.,ADVOCATE) AND: 1. SRI. CHAND PASHA S/O HYDER SAB MAJOR IN AGE R/AT TOLLGATE, KOLAR-563 101, 2. NATIONAL INSURANCE CO. LTD. REGIONAL OFFICE, SHUBARAM COMPLEX, M.G. ROAD, BANGALORE-01 REP BY ITS MANAGER. …RESPONDENTS (BY SRI. V/O DTD 22/2/2017, NOTICE TO R1 IS DISPENSED WITH SRI. O. MAHESH, ADVOCATE FOR R2 (VK NOT FILED) Digitally signed by ANUSHA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.09.2012 PASSED IN MVC NO. 8631/2009 ON THE FILE OF THE 8TH ADDITIONAL JUDGE, MEMBER MACT-5, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO. 1175/2013 BETWEEN: THE REGIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED, NO.144, SHUBARAM COMPLEX, M.G. ROAD, BANGALORE - 560 001. ...APPELLANT (BY SRI. O MAHESH.,ADVOCATE) AND: 1. SRI. P. SHIVA KUMAR AGED ABOUT 36 YEARS, S/O LATE PAPANNA, 2. SMT. SUDHA AGED ABOUT 32 YEARS, W/O P. SHIVA KUMAR, BOTH ARE R/AT AMBEDKAR NAGAR, BANGARAPET MAIN ROAD, KOLAR TOWN - 563 101. 3. SRI. CHAND PASHA MAJOR, S/O HYDER SAB, R/AT TOLLGATE, KOLAR - 563 101. 4. THE UNITED INSURANCE COMPANY LIMITED B.M. ROAD, ROBERTSON PET, K.G.F - 563 122. ...RESPONDENTS - 3 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 (V/O DATED 05.02.2013, NOTICE TO R3 D/W V/O DATED 06.02.2021; SRI. N.GOPAL ADVOCATE FOR R1 & R2 (VK NOT FILED; SRI. C. SHANKAR REDDY., ADVOCATE FOR R4 (VK NOT FILED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.09.2012 PASSED IN MVC NO.8630/2009 ON THE FILE OF THE VIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.2,25,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT. IN MFA NO. 1176/2013 BETWEEN: THE REGIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED NO.144, SHUBARAM COMPLEX M G ROAD, BANGALORE-560 001 BY ITS MANAGER. ...APPELLANT (BY SRI. O MAHESH.,ADVOCATE) AND: 1. SMT. AKKACHAMMA AGED ABOUT 53 YEARS W/O BYCHAPPA R/AT ARAHALLI VILLAGE AND POST, KOLAR TALUK KOLAR DISTRICT. 2. SRI CHAND PASHA MAJOR, S/O HYDER SAB R/A TOLLGATE KOLAR-563101. 3. THE UNITED INSURANCE COMPANY LIMITED B M ROAD, ROBERTSONPET, KGF-563 122. ...RESPONDENTS (V/O DATED 06.02.2021 SRI. GOPAL KRISHNA., ADVOCATE FOR R1 (VK NOT FILED) - 4 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 SRI. C. SHANKAR REDDY.,ADVOCATE FOR R3)(VK NOT FILED) V/O DATED 06.02.2013 NOTICE TO R2 DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.09.2012 PASSED IN MVC NO.8631/2009 ON THE FILE OF THE VIII ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF Rs.44,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN COURT. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT All these three appeals arises out of common judgment and award dated 04.09.2012 passed by the Motor Accident Claims Tribunal-V & Court of Small Causes, Bangalore (for short 'Tribunal'), in MVC.No.8630/2009 and MVC.No.8631/2009. 2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal. 3. The petitioner in MVC.No.8631/2009 has filed MFA.No.9215/2013 seeking enhancement of compensation. The respondent No.2 - Insurer of the Tractor and Trailor filed MFA.No.1175/2013 in MVC.No.8630/2009 and - 5 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 MFA.No.1176/2013 in MVC.No.8631/2009 challenging its liability fastened on it to pay the compensation. 4. All these appeals are taken-up together for disposal. 5. The brief facts of the case of both the parties before the Tribunal were as under: That the petitioners in MVC.No.8630/2009 filed the petition under Section 163-A of M.V. Act, claiming compensation for the death of their son - Vikas S., aged about 3 years. Petitioner in MVC.No.8631/2009 filed the petition under Section 166 of M.V. Act, claiming compensation for injuries sustained in the accident. According to the case of petitioners that on 29.10.2009, the deceased as well as petitioner in MVC.No.8631/2009 and other two persons were travelling in an Auto-rickshaw bearing Registration No.KA-07-6918. The petitioner No.1 in MVC.No.8630/2009 was driving the Auto-rickshaw and he was going from Kolar towards Arahalli side. The said Auto-rickshaw met with an accident due to rash and - 6 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 negligent driving of the Tractor and Trailor bearing Registration No.AP-26-E-5356 and No.AP-26-E-5357 which came from the opposite direction. Due to impact of the accident, the boy aged about 3 years sustained grievous injuries and succumbed to the said injuries. The petitioner in MVC.No.8631/2009 sustained fracture of right radius of ulna. She took treatment as inpatient and she suffered permanent disability, this has affected her earning capacity. With these reasons, she prayed to award compensation. The petitioners in MVC.No.8630/2009 prays for awarding the compensation for the death of their minor son in the accident. 6. The respondents No.1 and 2 are owner and insurer of the Tractor and Trailor; respondent No.3 is the insurer of the Auto-rickshaw bearing Registration No.KA-07-6918. In MVC.No.8631/2009 owner of the Auto-rickshaw is not a party. 7. Respondent No.2 i.e., Insurer of the Tractor and Trailor has filed written statement denying the contents of the claim petition and it also denied its liability to pay the - 7 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 compensation. It further stated that the accident occurred due to negligence of driver of the Auto-rickshaw. With these reasons, it prayed to dismiss the claim petition against the respondent No.2. 8. Respondent No.3 i.e., Insurer of the Auto-rickshaw filed objection in MVC.No.8630/2009 denying the contents of the claim petition and it also denied its liability to pay the compensation. 9. From the rival contentions of the parties, Tribunal framed necessary issues in both the matters. 10. Both the petitioners were set-down together for trial and common evidence was recorded. The petitioners to prove their cases, examined three witnesses as PW-1 to PW-3 and got marked Ex.P1 to Ex.P16. The respondents have not lead oral evidence, but, marked the copy of sketch as Ex.R1. 11. After hearing both the parties, Tribunal held that accident occurred due to the negligence of driver of the Tractor and Trailor and awarded compensation of Rs.2,25,000/- in MVC.No.8630/2009 and Rs.44,000/- in MVC.No.8631/2009. - 8 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 The said judgment and award is challenged in the present appeals. 12. I have heard the arguments of learned counsel for both the parties. 13. Learned counsel for the insurer of the Tractor and Trailer submitted that, considering Ex.R1 – the sketch, the entire negligence was on the part of the driver of the Auto- rickshaw, who had gone to the wrong side of the road and dashed against the Tractor. The spot mahazar also revealed the same. The said document was admitted during the cross- examination of PW-1. However, the Tribunal did not consider this fact. Therefore, it was submitted that the accident occurred due to the contributory negligence of the drivers of both the vehicles, the driver of the Auto-rickshaw contributing more to the accident compared to the driver of the Tractor and Trailer. He further submitted that in the appeals filed against MVC.No.8631/2009, the Tribunal had properly considered the materials available on record and had rightly awarded the compensation, which did not call for any interference by this Court. - 9 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 14. Learned counsel for the petitioners in both matters submitted that the driver of the Tractor and Trailer had been charge-sheeted by the Police. The petitioners had examined the driver of the Auto-rickshaw as PW-1 and PW-2 was an eye- witness to the incident who was travelling in the said Auto- rickshaw. In their cross-examination, nothing was brought out to discredit their evidence. The respondents did not examine the Investigating Officer or any other eye-witness to disprove the said facts. Therefore, it was submitted that the allegation of negligence on the part of the Auto-rickshaw driver could not be sustained solely on the basis of Ex.R1, which was a disputed document. Accordingly, learned counsel prayed for dismissal of the appeals filed by the Insurer of the Tractor and Trailer and for enhancement of the compensation, as the Tribunal in MVC.No.8631/2009 had not awarded a just and reasonable amount. 15. The Tribunal had not assessed the disability, despite the petitioner having examined the doctor who issued the disability certificate. The medical receipts produced by the - 10 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 petitioner were also not considered. Hence, prayed for enhancement of compensation. 16. MVC.No.8630/2009 was filed under Section 163-A of M.V. Act. The owner of the Auto-rickshaw was petitioner No.1 and the deceased was inmate of the said vehicle. Respondent No.3 was the Insurer of the Auto-rickshaw, which belonged to petitioner No.1. Therefore, under normal circumstances, the owner could not have been both the claimant and the recipient of compensation, and could not have claimed compensation against his own insurer. However, in this case, since the deceased was travelling in the said vehicle as passenger, he was a third party. Under those circumstances, the claim petition is maintainable. 17. It was undisputed that the petitioner in MVC.No.8631/2009 and the deceased in MVC.No.8630/2009 were both victims of the accident, which may have occurred due to the composite negligence of the drivers of both vehicles. MVC.No.8630/2009 was filed under Section 163-A of the M.V. Act, wherein proof of negligence was not required and it was sufficient to establish whether the vehicle against which - 11 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 compensation was claimed was involved in the accident. In MVC.No.8631/2009, the petitioner had not impleaded the owner of the offending vehicle as a respondent, and no claim was made against them. Therefore, as decided by the Hon’ble Apex Court in the case of Khenyei -vs- New India Assurance Company Limited and others,1 victims of the accident have got an opportunity to claim the compensation from the available joint tort-feasors, even if other joint tort-feasors are not made parties to the proceedings. In such circumstances, the Tribunal could not have recorded a finding on rash and negligent driving or apportioned liability. It was for the respondents, who were made parties to the proceedings, to seek appropriate remedies in a separate proceeding to determine whether the accident was due to contributory or composite negligence of the drivers of both vehicles. Under these circumstances, it was not necessary to decide the issue of contributory negligence of the Auto-rickshaw driver in causing the accident in question. 1 (2015) 9 SCC 273 - 12 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 18. Tribunal on the basis of the materials available held that accident occurred due to the negligence of driver of the Tractor and Trailor. Ex.P3 is spot-mahazar and Ex.R1 is in consonance with contents of Ex.P3. Both this documents reveals that driver of the Auto-rickshaw had also contributed for causing accident. As already stated above, the apportionment of negligence is not required to be decided in the present case. Hence, that issue is kept open for determination in appropriate proceedings, if any, initiated by respondents No.1 and 2 for sharing their liability to pay the compensation. In the present case, respondents No.1 and 2 in MVC.No.8630/2009 and MVC.No.8631/2009 are held liable to pay the compensation. 19. In MVC.No.8630/2009, as per the post-mortem report, a minor boy aged about 4 years died in the accident. The Tribunal considering the structured formula awarded total compensation of Rs.2,25,000/-, the petitioners have not filed any appeal to enhance the said amount. Considering the reasons assigned in the impugned judgment at Page.No11, the - 13 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 said finding is just and proper and it does not call for any interference of the Court. 20. Both the petitioner as well as insurer of MVC.No.8631/2009 filed two appeals as stated above. Medical records reveal that petitioner sustained segmental fracture of right radius and ulna, wound certificate corroborate the said fact. PW-3 – Doctor examined her and assessed disability. According to him, petitioner was suffering from permanent disability to an extent of 18.5% to the whole body and had restriction of movement. In his cross-examination, respondent No.2 did not dispute that the petitioner was suffering from permanent disability. According to respondent No.2, the disability did not exceed 7%. The Tribunal did not accept the evidence of PW-3 solely on the ground that he examined PW-2 (i.e., the petitioner) after two years and he was not treating doctor. While it is true that the evidence of the treating doctor generally carries more weight, it does not mean that the opinion of any other doctor who examined the petitioner and assessed the disability can be completely discarded or ignored. Such evidence should also be considered carefully. - 14 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 21. As per the medical records, the petitioner was aged about 60 years. She had sustained a segmental fracture of the right radius and ulna. She underwent surgery and according to the evidence of PW-3, there was a restriction in movement. Considering all these facts, it is evident that the petitioner in MVC.No.8631/2009 has been suffering from permanent disability. Based on the material available on record, the disability is assessed at 10% to the whole body. 22. According to the petitioner, she was earning Rs.6,000/- per month. However, she was unable to produce proof of the same. Therefore, the Tribunal assessed her notional income at Rs.3,000/- per month. The accident occurred in the year 2009. Following the notional income chart prepared by the Karnataka State Legal Services Authority, her notional income is taken at Rs.5,000/- per month. As the petitioner was aged about 60 years at the time of the accident, the appropriate multiplier applicable is ‘9’. On the basis of these figures, the compensation under the head of "loss of future earning capacity due to permanent disability" is reassessed. - 15 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 23. Upon re-appreciation of the materials available on record, it is also found that the compensation awarded under other heads was on the lower side. The Tribunal had completely ignored the medical expenses and awarded only Rs.10,000/-, citing doubts regarding the authenticity of the medical receipts. Claimant took treatment in a private hospital, underwent surgery, treated as inpatient considering these facts Tribunal would have awarded just compensation towards medical expenses. The compensation awarded towards medical expenses is also on the lower side. 24. Considering the above said facts, the petitioner in MVC.No.8631/2009 is entitled to following amount of compensation. Sl.No Heads Amount 1. Pain and sufferings Rs.30,000/- 2. Medical expenses and Incidental expenses Rs.25,000/- 3. Loss of income during laid up period (5,000/- X 3) Rs.15,000/- 4. Loss of future earning capacity due to permanent disability (5,000/- X 12 X 9 X 10%) Rs.54,000/- 5. Loss of amenities Rs.25,000/- Total Rs.1,49,000/- Less: Compensation awarded by the Tribunal Enhancement Rs.44,000/- Rs.1,05,000/- - 16 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 25. The petitioner in MVC.No.8631/2009 is entitled to enhanced compensation of Rs.1,05,000/- with interest at the rate of 6% per annum on the said amount from the date of petition till its realization. 26. The MFA.No.9215/2013 was filed after delay of 316 days and while allowing the said application, this Court ordered that in the event of enhancement of compensation, the petitioner is not entitled for the interest on the delayed period. 27. For the aforesaid reasons, I proceed to pass the following: ORDER i) MFA.No.9215/2013 is partly allowed. ii) MFA.No.1175/2013 and MFA.No.1176/2013 are dismissed. iii) The judgment and award dated 04.09.2012 passed by the Motor Accident Claims Tribunal-V & Court of Small Causes, Bangalore in MVC.No.8631/2009 is modified. iv) The petitioner in MVC.No.8631/2009 is entitled to enhancement of Rs.1,05,000/- with interest at the rate of 6% per annum from the date of petition till its realization, - 17 - HC-KAR NC: 2025:KHC:25437 MFA No. 9215 of 2013 C/W MFA No. 1175 of 2013 MFA No. 1176 of 2013 excluding the delayed period of 316 days in filing the appeal. v) The respondent No.2 - Insurance Company shall deposit the said amount within a period of six weeks from the date of the award. vi) The petitioner in MVC.No.8631/2009 is aged about 60 years as on the date of accident. Therefore, entire enhanced amount is ordered to be released in her favour on due identification. vii) The respondent No.2 is at liberty for apportionment of the negligence in an appropriate proceedings by making owner and insurer of the Auto-rickshaw as party. viii) Amount in deposit in both the appeals filed by the Insurer shall be transmitted to the Tribunal for disbursement. ix) Send back the trial Court records along with a copy of this judgment. x) Draw award accordingly. Sd/- (UMESH M ADIGA) JUDGE GRD List No.: 1 Sl No.: 7