- 1 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 2317 OF 2015 (MV-I) BETWEEN: 1. SRI KUMARA S/O LATE DEVEGOWDA, AGED ABOUT :33 YEARS, R/AT DEVEGOWDANAHUNDI VILLAGE, VARUNA HOBALI, MYSORE TALUK AND DISTRICT. …APPELLANT (BY SRI. VEERABHADRA SWAMY H P., ADVOCATE) AND: 1. SURESH S/O BELLAIAH, AGED ABOUT :28 YEARS, R/AT SRINIVASA AGRAHARA, SRIRANGAPATNA TALUK, MANDYA DISTRICT. 2. T. T. PARTHASARATHI S/O VENKATEGOWDA, AGED ABOTU :43 YEARS, R/AT TURANGA POST, BANNUR HOBALI, T. NARASIPURA TALUK, MYSORE DISTRICT. 3. THE DIVISIONAL MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. NO.36/D, I FLOOR, MYSORE TRADE CENTER, OPP:KSRTC BUS STAND, BANGALORE-NILAGIRI ROAD, MYSORE. Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 …RESPONDENTS (BY SRI.ASHOK N. PATIL., ADVOCATE FOR R3 VIDE ORDER DATED 18.11.2022 NOTICE TO R2 IS HELD SUFFICIENT; R1 SERVED;) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 9.12.2014 PASSED IN MVC NO.1171/2012 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MYSURU, IN CONCURRENT CHARGE OF ADDITIONAL COURT OF SMALL CAUSES, MYSURU, AS A PRESIDING OFFICER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the claimant against the judgment and award dated 09.12.2014 in MVC No.1171/2012 passed by the MACT, Mysuru. 2. The parties are referred to as per their ranking before the Tribunal. 3. The brief facts of the case are that, on 19.09.2012, at about 5 p.m., the claimant was riding a - 3 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 motor cycle bearing registration No.KA-55-K-9799, at that time, he met with an accident due to rash and negligent driving of the tipper lorry bearing registration No.KL-08- W-4678. As a result of impact, he sustained fracture of right ulna and patella. He took treatment as inpatient and spent substantial amount towards medical expenses. He has suffered permanent disability. For these reasons, he prays to award a compensation of Rs.15,15,000/-. 4. Respondent No.1 is a driver and respondent No.2 is the owner and respondent No.3 is the insurer of the offending tipper lorry bearing registration No.KL-08-W- 4678. Respondent Nos.1 and 2 remained ex parte before the Tribunal. Respondent No.3 filed a written statement denying the contents of the claim petition and also denied its liability to pay the compensation and prayed to dismiss the claim petition. 5. The Tribunal framed the necessary issues on the basis of rival contentions of the parties. - 4 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 6. The claimant to prove his case has examined two witness as PWs.1 and 2 and marked Exs.P.1 to 9. Respondent No.3 examined one witness as RW.1 and marked Exs.R.1 to 4. 7. The Tribunal after hearing both parties held that the accident occurred due to rash and negligent driving of the lorry driver. The Tribunal has assessed the age of the claimant as 30 years, and income at Rs.4,500/- per month and held that since the disability to the right lower limb is marginal of 5% and if it is converted to the entire body, it would be very meager and thus, has not awarded compensation under the head loss of future earning capacity due to permanent disability. The Tribunal after considering the contention of the insurer held that there was violation of terms and conditions of policy of insurance and therefore exonerated the liability of respondent No.3 and directed respondent Nos.1 and 2 to pay the compensation jointly and severally. - 5 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 8. The claimant, being aggrieved by the said finding, has preferred this appeal seeking enhancement of compensation. Although the challenge to the liability of respondent No. 3 to pay compensation was not specifically mentioned in the appeal memo, the learned counsel for the appellant submits that this omission was inadvertent and that the liability of respondent No. 3 is also being contested in this appeal. 9. I have heard the arguments. 10. PWs.1 and 2, in their evidence, stated that the claimant sustained fractures to the right ulna and right patella. PW.2 had not treated the claimant; the claimant consulted him solely for the purpose of disability assessment. According to his testimony, further treatment was required for the ulna fracture. He also noted that the fracture of the right patella had completely healed and assessed the disability in the right lower limb at 5%. Additionally, he advised the claimant to undergo surgery for the ulna. It appears that the claimant still requires - 6 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 further medical treatment. Based on the evidence of PWs.1 and 2, it is proved that the claimant sustained fractures to the right ulna and right patella. 11. Ex.P.8, the discharge summary discloses that he was admitted as an inpatient on 19.09.2012 and discharged on 26.09.2012. He underwent surgery to the right ulna as well as right patella. He produced the X-ray and medical bill for having received treatment in the hospital. Considering the nature of the injuries sustained, the inpatient treatment received, and upon perusal of the impugned judgment, the amount of compensation awarded by the Tribunal is on the lower side. 12. The Tribunal has taken income of the claimant as Rs.4,500/- per month. After appreciating the materials on record, the Tribunal has awarded total compensation of Rs.1,16,570/- under the head as follows: - 7 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 SL.NO. HEADS AMOUNT 1. Medical expenses 37,570/- 2. Loss of income during the period of treatment 9,000/- 3. Loss of amenities of life 10,000 4. Pain and sufferings 30,000/- 5. Nourishment, attendant and travelling expenses 30,000/- Total 1,16,570/- 13. By following the notional income chart prepared by the KSLSA, income of the claimant is taken as Rs.7,000/- per month. He had sustained fracture of both ulna as well as right patella. According to his contention, he was working as a coolie. Considering the nature of the injury, it is likely that he was unable to work for a period of at least three to four months, which should be duly compensated. As noted by the Tribunal, the doctor assessed a 5% disability in the claimant’s right lower limb. However, the doctor also stated that, since further - 8 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 treatment was required for the right ulna, he was unable to assess the disability related to that injury. Given that the overall disability was considered marginal and no compensation was awarded under the head of loss of future earning capacity due to permanent disability, the Tribunal could have awarded a higher amount under the head of loss of amenities. For the aforesaid reasons, the claimant is entitled to following amount of compensation: SL.NO. HEADS AMOUNT (Rs.) 1. Pain and sufferings 60,000/- 2. Medical expenses 37,570/- 3. Loss of income during the period of treatment (7000X 3 months) 21,000/- 4. Nourishment, attendant and traveling charges 30,000/- 5. Loss of amenities 40,000/- Total 1,88,570/- - 9 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 14. The learned counsel for the appellant contended that respondent No. 3 is the insurer of the said vehicle, which is not in dispute. Respondent No. 3 examined its officer as RW.1. However, respondent No. 3 did not examine the investigating officer or the concerned RTO, nor did it secure certified copies of documents related to the offending vehicle, such as the Registration Certificate (RC), Fitness Certificate (FC), etc. Apart from issuing a letter to the owner of the vehicle requesting certain documents, no further steps were taken by respondent No. 3. Therefore, the assertion made by respondent No. 3 remains unproven. As such, respondent No. 3 is liable to pay the compensation, with liberty to recover the same from the owner of the vehicle in appropriate proceedings. 15. The learned counsel for respondent No. 3 vehemently contended that this appeal has been filed solely to seek enhancement of compensation, which was not a ground in the appeal, and therefore, it cannot be considered. He further contended that after the filing of - 10 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 the claim petition, respondent No. 3 issued a notice to the owner of the vehicle requesting the relevant documents pertaining to the offending vehicle. Despite service of the notice, respondent No. 2 failed to furnish any records. Consequently, an adverse inference must be drawn that the said vehicle did not possess the necessary documents. Therefore, respondent No. 2’s failure to provide the same justifies the contention of respondent No. 3, and the Tribunal has rightly exonerated the insurer from paying the compensation. 16. It is true that the appellant has not specifically raised the issue of liability in the appeal grounds. Ordinarily, if such a contention were to be re-examined, the appellant would be required to file an application seeking the leave of the Court to raise additional grounds. However, this matter dates back to 2015, and the accident occurred in 2012. Following the procedural requirements at this stage would only delay the final disposal of the case. Moreover, if the appellant’s contention is considered - 11 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 and respondent No. 3 is held liable to pay compensation, the insurer would also become liable to pay additional interest for the period of delay. Therefore, setting aside the hyper-technical objections raised by the learned counsel for respondent No. 3, the appellant’s contention is accepted as bona fide in the present case. 17. The submission of learned counsel for the appellant is tenable. The mere issuance of a letter by respondent No. 3 and the absence of a reply from respondents No. 1 and 2 cannot, by itself, be a sufficient basis to conclude that the offending vehicle lacked the necessary documents. Respondent No. 3, knowing the registration number of the vehicle, ought to have examined the concerned RTO officer or produced relevant documents such as the Registration Certificate, Fitness Certificate, or Permit concerned to offending vehicle. Respondent No.3 has not taken pains to do so. Hence, an adverse inference cannot be drawn from the owner's non- production of documents that no such documents were - 12 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 available. Having failed to take such steps, respondent No. 3 cannot shift the burden onto the claimant to prove facts that the insurer was liable to pay compensation. Consequently, respondent No. 3 remains liable to pay the compensation. 18. The learned counsel for respondent No.3 reiterated the judgment relied by the co-ordinate Bench of this Court in MFA No.9398/2008 (MV) dated 02.08.2010 in the case of Hanumanthu @ Hanumanthegowda vs. The Manager. The learned counsel for respondent No.3 also relied on the judgment in Pappu and others vs. Vinod Kumar Lamba and Another reported in AIR 2018 SC 592. In both the cases, the documents which are to be produced are the driving license. In the case of driving license unless the insurer knew the driving license number, he cannot secure the copy of the same. On the contrary, in the present case, had the insurer tried to secure the copies of the document such as RC, FC or permit, he could have - 13 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 obtained it from the concerned RTO. Hence, principle of law laid down in both the cases are inapplicable to facts of present case. 19. The liability to pay compensation primarily rests with the owner of the vehicle. There exists a contractual agreement between the owner and the insurer. If the insurer can demonstrate that the owner has violated any terms of the contract, the insurer is entitled to recover the compensation amount from the owner. This principle of law has been upheld by the Hon'ble Apex Court, including in the judgment referred to by respondent No. 3 in Pappu’s Case cited above. In the present case, despite receiving the notice, respondent No. 2 failed to provide the required documents to the insurer or appear before this Court to prove the relevant facts. Under these circumstances, respondent No. 3, the insurer, is liable to pay the compensation and is at liberty to recover the same from the owner of the vehicle. - 14 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 20. As per the aforesaid discussions, I proceed to pass the following order: ORDER i) The appeal is allowed in part. ii) The impugned judgment and award dated 09.12.2014, passed by the MACT, Mysuru, in MVC No.1171/2012 stands modified. iii) The claimant is entitled to enhancement of Rs.72,000/- along with interest at the rate of 6% p.a. from the date of claim petition till its realization. iv) Respondent Nos.2 and 3 are jointly and severally liable to pay the said amount of compensation. v) Respondent No.3 shall deposit the said amount within a period of 6 weeks from the date of award. vi) Respondent No.3 is at liberty to recover the said amount of compensation from the owner of the vehicle in an appropriate proceeding if the owner is failed to furnish the - 15 - HC-KAR NC: 2025:KHC:27485 MFA No. 2317 of 2015 required documents, as contended in the written statement. vii) Enhanced amount of compensation is marginal, therefore entire amount is ordered to be released in favour of the claimant. viii) Send back the trial Court records along with a copy of this judgment to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE GSR List No.: 1 Sl No.: 5