- 1 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 1192 OF 2017 (MV-I) BETWEEN: SRI FRANKLIN @ FRANKLIN IN WINDSOR S/O. CANNUTE WINDSOR D. AGED ABOUT 26 YEARS, R/AT NO.507, HBR LAYOUT, TEACHERS COLONY, BENGALURU. …APPELLANT (BY SRI. RENUKARADHYA R. D., ADVOCATE) AND: 1. SRI KRISHNA KUMAR ADISESHAN KEERTHI HARMONY APARTMENTS, T.C.PALYA MAIN ROAD, N.R.RAMAMURTHYNAGAR, RAGHAVENDRA CIRCLE, BLK, BENGALURU-560 016. 2. THE MANAGER UNITED INDIA INS. CO. LTD., REGIONAL OFFICE 5TH FLOOR, KRUSHI BHAVAN, NRUPATHUNGA ROAD, HUDSON CIRCLE, BENGALURU-560 027 …RESPONDENTS (BY SRI. MOHAN KUMAR T FOR R2.,ADVOCATE; V/O DATED 05.07.2024, NOTICE TO R1 IS DISPENSED) THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 29.10.2016 PASSED IN MVC NO.2815/15 ON THE FILE OF THE 19TH ADDITIONAL SMALL CAUSE JUDGE & MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT This appeal is filed by the claimant, calling in question the judgment and award dated 29.10.2016 passed in MVC.No.2815/2015 by the XIX Additional Small Causes Judge, and MACT, Bengaluru1. 2. The Tribunal by its judgment and award dated 29.10.2016 has assessed the total compensation payable as `2,93,155/- with interest at 9% per annum. However, the Tribunal recorded a finding that the driver of the car in which the claimant was traveling was also responsible to the extent of 50% in causing the accident and hence, ordered that the respondent Nos.1 and 2 are liable to pay 50% of the compensation assessed. 3. Being aggrieved, the claimant has filed the above appeal calling in question the finding of the Tribunal 1 Hereinafter referred to as 'Tribunal' - 3 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 deducting 50% of the compensation and also seeking for enhancement of the quantum of compensation. 4. The relevant facts in a nutshell are that on 15.08.2014 the claimant along with other persons was proceeding in a car being driven by its driver, when the said car hit against a lorry, which was moving ahead of the car, causing the accident in question. Claiming compensation for the injuries sustained in the said accident, the claimant instituted claim proceedings arraying the owner and insurer of the car as respondent Nos.1 and 2 respectively. The first respondent-owner of the car remained exparte before the Tribunal. The second respondent insurer contested the claim proceedings and also filed statement of objections, wherein, it was contended that the accident occurred due to the rash and negligent driving by the driver of the lorry. 5. The claimant examined himself as PW.1 and a as CW.1. Exs.P1 to P15 as well as Ex.C1 and C2, were marked. No oral or documentary evidence has been - 4 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 adduced on behalf of the respondents. The Tribunal by its judgment and award dated 29.10.2016 partly allowed the claim petition as noticed above. Being aggrieved, the present appeal is filed by the claimant. 6. Heard submissions of the learned counsel Sri. Harish for learned counsel Sri. R. D. Renukaradhya for the appellant-claimant and the learned counsel Sri. Mohan Kumar. T. for second respondent-Insurer. 7. It is the vehement contention of the learned counsel for appellant that the Tribunal erred in deducting 50% of the compensation assessed by recording a finding that both the driver of the car and the driver of the lorry were equally negligent in causing the accident in question. It is contended that the present case is one of composite negligence and hence it was open for the claimant to institute the claim proceedings against any one of the tortfeasors and having regard to the fact that the claim proceedings have been instituted by making the owner and insurer of the car as respondents, the compensation - 5 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 ought to be ordered to be paid by the owner and insurer of the car with liberty to sue the tortfeasors in independent proceedings. Reliance is placed by the learned counsel for appellant/claimant on the judgment of Hon'ble Supreme Court in the case of KHENYEI V/s. NEW INDIA ASSURANCE COMPANY LIMITED AND OTHERS2 with regard to the aspect of compensation. He further contended that the quantum of compensation awarded is on lower side which requires to be enhanced. 8. Per contra learned counsel for the insurer, justifying the order passed by the Tribunal, contended that the findings of the Tribunal recording that both the drivers were negligent to the extent of 50% each is just and proper. He further contended that the claimant has made only the owner and insurer of the car as parties in the claim proceedings, the Tribunal was justified in awarding payment of only 50% of the compensation. It is further contended that the quantum of compensation awarded is 2 (2015) 9 SCC 273 - 6 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 just and proper and that the interest at 9% awarded by the Tribunal is excessive. 9. The submissions made by both the learned counsels have been considered and the material on record including the records of the Tribunal has been perused. The questions that arise for consideration are: i) Whether the Tribunal was justified in ordering that the plaintiff is entitled to only 50% of the compensation award? ii) Whether the compensation awarded by the Tribunal is liable to be enhanced? Regarding question No.(i): 10. The claimant in the claim petition has averred that the accident occurred due to the negligent driving of the driver of the car who hit against the lorry. The Insurer in the statement of objections has contended that the accident occurred due to rash and negligent driving of the driver of lorry. The claimant who was examined as PW.1 has produced FIR (Ex.P1), complaint (Ex.P2), sketch - 7 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 (Ex.P5) and charge sheet (Ex.P6) as also other police documents. 11. The Tribunal considering the material on record has noticed that the in the pleadings of the claimant and respondents, they alleged negligence on the drivers of the car and lorry respectively. Further it is noticed that the police authorities after investigation have filed a charge sheet against driver of the car. Considering the said material the Tribunal has recorded a finding that the accident occurred due to the actionable negligence on the part of the drivers of both the lorry and the car. In this context, it is relevant to notice that the Hon'ble Supreme court in the case of KHENYEI2 has considered the aspect of composite negligence. In this regard, it is pertinent to note here that composite negligence arises when "a person is injured without any fault of their own, but by the combined effects of negligence of two persons of whom the one is not responsible for the other". Hence, it is clear that the present case is one of composite negligence. The - 8 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 Hon'ble Supreme Court has laid down the principles on which cases of composite negligence are required to be adjudicated upon which are as under:- 22. What emerges from the aforesaid discussion is as follows : 22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. 22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them. 22.3 In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. - 9 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 22.4 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 tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award. (emphasis supplied) 12. In the present case, it is clear that owner and the insurer of the car have been arrayed as respondent Nos.1 and 2. The owner of the lorry has not been made a party. Hence, having regard to the factual matrix and legal position as noticed above, the compensation awarded is required to be paid by the insurer of the car, who should be left, if he so desires to sue the other tortfeasor in independent proceedings after passing of the present award. Accordingly, the question No.(i) is answered in the negative. - 10 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 Regarding question No.(ii): 13. The claimant was aged 24 years as on the date of the accident i.e., on 15.08.2014. Accordingly, the appropriate multiplier is 18. 14. The claimant sustained comminuted fracture of anterior wall of left maxillary antrum as it is forthcoming from the wound certificate (Ex.P3) and the discharge summary (Ex.P9) and other medical documents. The claimant has also suffered lacerated wounds on the face. The claimant took treatment as an inpatient from 15.08.2014 till 20.08.2014 i.e., for a period of 6 days and once again on 20.10.2014. Hence, the claimant has taken treatment as an inpatient for a total period of 7 days. 15. All though the claimant has deposed that he was an employee and a business man, earning `19,800/- per month, in the cross examination of PW.1, he has deposed that he has continued to work in an other company and is receiving salary of Rs.40,000/-. However, - 11 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 it is the contention of the claimant that he was initially working for a company and subsequently due to the injuries sustained in the accident he has quit his previous employment and thereafter, joined another company. It is clear that the claimant, apart from the oral testimony, has not produced any documents with regard to his employment and his income. Hence, having regard to the date of accident, it is just and proper to assess his notional income at Rs.8,500/- per month. 16. The doctor has been examined on commission as C.W.1 who has deposed regarding injuries sustained by the claimant and the treatment taken for the same. The treatment procedure has been elaborately explained in the testimony of CW.1, who has further deposed that there are scars over forehead, upper and lower Eyebrows, over the nose and over middle and lower third of face disfigurement has been noticed. The doctor has assessed the disability of the face at 18.25%. - 12 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 17. Keeping in mind the aforementioned, the compensation is reassessed as follows: 17.1 The compensation awarded by Tribunal towards pain and suffering of Rs.40,000/- and loss of future amenities of `40,000/- is just and proper; 17.2 . Having regard to the nature of injuries sustained by the claimant, it is just and proper that the compensation towards attendant charges be reassessed as Rs.15,000/- as against Rs.10,000/- awarded by the Tribunal; 17.3 The compensation towards medical expenses has been awarded by the Tribunal as per the actual medical bills of Rs.1,62,155/- which is just and proper and hence, compensation towards medical expenses is rounded of as Rs.1,65,000/-; 17.4 The Tribunal has assessed the laid up period as 3 months. Accordingly, the compensation towards the - 13 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 same is re assessed as (Rs.8,500 X 3) Rs.25,500 as against Rs.21,000/- awarded by the Tribunal; 17.5 CW.1 has deposed that the claimant requires scar revision in future to correct the scar deformity which may cost approximately Rs.70,000/- to Rs.80,000/-. However, no documents have been produced with regard to the same. Having regard to same, it is just and proper, that the future medical expenses is reassessed as `30,000/- as against Rs.20,000/- awarded by the Tribunal. 17.6 Having regard to the scars in the face of the claimant, which is evident from the photographs (Ex.P15), it is just and proper, to award compensation towards loss of marriage prospects in a sum of Rs.30,000/-. 18. Taking judicial notice of the interest payable towards the fixed deposits, it is just and proper to award interest at the rate of 7% per annum (except the enhancement towards future medical expenses). - 14 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 19. Hence, compensation is reassessed as follows: Sl. No. Heads Amount awarded by the Tribunal (Rs.) Amount awarded by this Court (Rs.) 1. Towards pain and suffering 40000.00 40000.00 2. Towards attendant charges 10000.00 15000.00 3. Towards medical expenses 162155.00 165000.00 4. Loss of income during laid up period 21000.00 25500.00 5. Loss of future income due to permanent disability Nil Nil 6. Loss of future amenities and happiness 40000.00 40000.00 7. Towards future medical expenses 20000.00 30000.00 8. Towards loss of marriage prospects Nil 30000.00 Total 2,93,155.00 3,45,500.00 20. Hence, the claimant is entitled for enhanced compensation of Rs.52,345.00 (Rs.3,45,500.00 - 2,93,155.00). 21. Although the Tribunal had assessed the total compensation at `2,93,155/-, it ordered that the claimant is entitled to 50% of the compensation, which was to be paid by the second respondent/insurer. Hence, in terms of the judgment and award of the Tribunal, the claimant was entitled to compensation of (`2,93,155/- - 50%) - 15 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 `1,46,577.50. In the present appeal, it having been held that the second respondent/insurer is liable to pay the entire compensation awarded together with accrued interest with liberty to sue the other tortfeasors in an independent proceedings, the balance 50% of the compensation awarded by the Tribunal of `1,46,577.50 together with the compensation that is awarded by this Court is liable to be paid to the claimant i.e., `52,345/-. 22. Hence, the following: ORDER i) The appeal is partly allowed. ii) The judgment and award dated 29.10.2016 passed by the XIX Additional Small Causes Judge and MACT, Bengaluru, is modified holding that the claimant is entitled to a total compensation of `3,45,500/- together with interest at 7% p.a., from the date of petition till date of payment (except interest towards future - 16 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 medical expenses as re-assessed at `30,000/-), in additional to the quantum of compensation awarded by Tribunal; In all other respects, the judgment and award of the Tribunal remains unaltered. iii) Respondent No.2 – insurer shall deposit the said compensation together with accrued interest within a period of six weeks; iv) Upon such deposit, the amount shall be disbursed to the claimant digitally in terms of the award of the Tribunal; v) The second respondent insurer shall be entitled to sue the other tortfeasors in an independent proceedings in terms of the judgment of the Hon'ble Supreme Court in KHENYEI2. vi) The Registry to draw the modified award accordingly; - 17 - HC-KAR NC: 2025:KHC:24962 MFA No. 1192 of 2017 vii) Records of the Tribunal be transmitted to the Tribunal forthwith. No costs. LDC List No.: 1 Sl No.: 27 Sd/- (C.M. POONACHA) JUDGE