- 1 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 5TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201081 OF 2019 (MV-I) C/W MISCL. FIRST APPEAL NO.201080 OF 2019 (MV-I) IN MFA NO.201081/2019: BETWEEN: PRIYANKA D/O SIDDU SHINDE, AGED ABOUT 15 YEARS, OCC: STUDENT, REP BY HER NATURAL FATHER SIDDU S/O SAMBHAJI SHINDE, R/O JUCHANDRA GAJANAN NAGAR, VASAI EAST, THANE-401 208, NOW RESIDING AT TIKOTA, TQ & DIST. VIJAYAPUR-586 101. …APPELLANT (BY SRI. S.S. MAMADAPUR, ADVOCATE) AND: 1. SRI. DHANAJI S/O SHIVAJI MUDADE, AGED ABOUT 43 YEARS, OCC: BUSINESS, R/O LANDAGEWADI, TQ. KAWATE MAHANKAL, DIST. SANGLI-416 416. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 S.S. FRONT ROAD, BIDARI COMPLEX, DIST. VIJAYAPUR-586 101. …RESPONDENTS (BY SRI. SANJAY M. JOSHI, ADV. FOR R2; R1-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED-23.02.2019 PASSED BY THE HON’BLE MEMBER MACT-IV AND III ADDL. DISTRICT JUDGE VIJAYPUR, IN MVC NO.1875/2016. IN MFA NO.201080/2019: BETWEEN: SRI. SIDDU S/O SAMBHAJI SHINDE, AGED ABOUT 43 YEARS, OCC: NIL, R/O JUCHANDRA GAJANAN NAGAR, VASAI EAST, THANE-401 208, NOW RESIDING AT TIKOTA, TQ. & DIST. VIJAYAPUR-586 101. …APPELLANT (BY SRI. S.S. MAMADAPUR, ADVOCATE) AND: 1. SRI. DHANAJI S/O SHIVAJI MUDADE, AGED ABOUT 43 YEARS, OCC: BUSINESS, R/O LANDAGEWADI, TQ. KAWATE MAHANKAL, DIST. SANGLI- 416 416. - 3 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., S.S. FRONT ROAD, BIDARI COMPLEX, DIST. VIJAYAPUR-586 101. …RESPONDENTS (BY SRI. SANJAY M. JOSHI, ADV. FOR R2 R1-SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT BY SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 23.02.2019 PASSED BY THE HON’BLE MEMBER MACT-IV AND III ADDL. DISTRICT JUDGE VIJAYAPUR, IN MVC NO.1874/2016. THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) Being aggrieved by the common judgment in MVC No.1874/2016 and 1875/2016 by learned III-Additional District Judge & MACT, Vijayapura, the petitioners have approached this Court in these appeals. 2. The factual matrix of the case that is relevant for the purpose of these appeals is as below: - 4 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 The petitioner in MVC No.1874/2016 - Siddu is the father of the petitioner in MVC No.1875/2016 - Priyanka. The father and the daughter were going on a two wheeler bearing No.MH-04/EA-4875 towards Kavatemahakal. The Cruiser jeep bearing No.MH-45/A- 7025 was going at their front. A TATA Vista car bearing No.MH-10/BM-7820 came from the opposite direction in a rash and negligent manner and dashed to the right side of the cruiser jeep and as a result, the cruiser jeep turned turtle and fell down on the road. The two wheeler of the petitioner – Siddu dashed against the said Tata Vista car and they also fell down and sustained injuries. A case was registered by the jurisdictional police and after investigation, they have filed the charge-sheet against the driver of the Tata vista car for negligent driving. The owner and insurer of the Tata vista car are arrayed as respondent Nos.1 and 2 in both the claim petitions. - 5 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 3. The petitioner – Siddu in MVC No.1874/2016 contended that he was aged 40 years, working as a fabricator and welder, having his own work shop and used to earn `30,000/- per month and now he has lost his earning capacity due to permanent disability and as such, he is entitled for an adequate compensation from the owner and insurer of the offending car. 4. The petitioner – Priyanka in MVC No.1875/2016 contended that she was aged about 12 years and having suffered the fractures, she is entitled for adequate compensation. 5. Respondent Nos.1 and 2 on being issued with the notice, appeared before the Tribunal and filed their written statement. The owner of the car contended that his car was insured with respondent No.2 and the insurance was inforce and if at all, any compensation is to be paid, the same be fastened upon respondent No.2. Inter alia, he denied the negligence of the driver of his car and the age, income and occupation of the petitioners. - 6 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 6. Respondent No.2 contended that the petitioners are not the residents of the Tikota Village and as such, they disputed the jurisdiction of the Tribunal. They also contended that bike owner, insurer and the car driver are necessary parties. They also have taken similar contentions as that of the owner of the car. Apart from that, it was alleged that the driver of the car was not having a valid driving licence, registration certificate, fitness certificate etc. and therefore, the terms and conditions of the policy were violated and sought for dismissal of the petitions. 7. On the basis of the above contentions, the Tribunal framed the appropriate issues in both the claim petitions. 8. The petitioners examined four witnesses as PW.1 to PW.4 and Ex.P.1 to Ex.P.25 were got marked and respondent No.2 –Insurance Company examined its official as RW.1 and the copy of policy was marked as Ex.R.1. - 7 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 9. After hearing both sides, the Tribunal held that there was contributory negligence on the part of both the petitioners to the extent of 30% and therefore, after deducting 30%, awarded compensation under different heads as below :- Sl. No. Heads In MVC No.1874/2016 In MVC No.1875/2016 1. Transportation `5,000/- `5,000/- 2. Food, attendant and nourishment `15,000/- `5,000/- 3. Medical expenses `1,20,130/- `24,359/- 4. Pain and suffering `50,000/- `50,000/- 5. Loss of amenities `5,000/- `5,000/- Total ````1,95,130/- `89,359/- Being aggrieved by the same, the petitioners are before this Court. 10. Learned counsel appearing for petitioners contended that the Tribunal failed to apply its mind to the fact that there could not have been contributory negligence on the part of the minor petitioner in MVC No.1875/2016. The Tribunal having erred in fastening contributory negligence on the part of the petitioner, its conclusion about the contributory negligence is also not - 8 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 sustainable in law. The petitioner – Siddu in MVC No.1874/2016 being the rider of the motorcycle was riding the same from behind the cruiser jeep and after cruiser jeep collided with Tata vista car, it turned turtle and later the Tata Vista car had dashed against two wheeler of the petitioner. This shows that the petitioner though was well under the control of his two wheeler, despite there being an abrupt collision between two vehicles in front of him, the accident is solely due to the negligent on the part of driver of Tata Vista car. Therefore, he submits that the contributory negligence fastened upon the petitioner – Siddu is not sustainable in law. 11. He further submits that the compensations awarded by the Tribunal in both the claim petitions are also on lower side and the same need to be enhanced. 12. Per contra, learned counsel appearing for respondent – Insurance Company submits that, the Tribunal has assessed the contributory negligence of the petitioner on the basis of the fact that the accident had - 9 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 occurred at the center of the road. Therefore, the negligence assessed by the Tribunal need not be interfered with. He also submits that the quantum of compensation assessed is proper and correct and as such, appeals be dismissed. 13. The first aspect of the matter to be decided by this Court is about the contributory negligence. As noted supra, the petitioner in MVC No.1875/2016, is a girl, aged about 12 years and she was a pillion rider. The Tribunal while assessing the compensation deducted 30% on account of contributory negligence. There is no logic or the reason assigned by the Tribunal in this regard. At any stretch of imagination, a pillion rider cannot be said to have contributed any negligence in causing the accident. Therefore, the said finding prima facie shows that the Tribunal did not apply its mind to the facts and circumstances of the case. 14. The police papers which are produced before the Tribunal would indicate the manner in which the - 10 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 accident occurred. The FIR and the complaint which are at Ex.P.4 and Ex.P.5 would show that two wheeler of the petitioner – Siddu and the cruiser vehicle were going towards Landgewadi and the Tata Vista car came from Kavatemahakal. The complaint describes the manner in which the accident occurred. It is clearly mentioned in the complaint that the Tata Vista car bearing Reg.No.MH- 10/BM-7820 came on the wrong side and dashed to the rear right tyres of the cruiser, resulting in the cruiser turning turtle several times. Thereafter, it dashed against the motorcycle ridden by petitioner – Siddu. Therefore, it is evident that the negligence was on the part of the driver of the Tata vista car and there being no collision between two wheeler and the cruiser indicating thereby that the rider was in full control of his vehicle, the Tribunal could not have attributed any contributory negligence to the petitioner – Siddu. It cannot be said that the petitioner – Siddu was at the speed which was uncontrollable and he himself had dashed to the Tata vista car. Therefore, it is evident that the Tribunal failed to assess the manner in - 11 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 which the accident had occurred. If at all there was any collision between the cruiser and the two wheeler, it could have been said that the petitioner – Siddu was not in controllable speed of his vehicle. In that view of the matter, the Tribunal has clearly erred in fastening 30% of contributory negligence on the petitioner – Siddu. The impugned judgment to that extent is unsustainable and liability has to be fastened fully upon the owner and insurer of the Tata Vista car. 15. Coming to the assessment of compensation, the petitioner contends that he is aged about 40 years, working as a fabricator and welder and he has suffered permanent disability. Though there is no proof of his income, the notional income has to be considered. 16. The guidelines issued by the KSLSA for the purpose of settlement of disputes before Lok-Adalat prescribes a notional income of `8,750/- for the year 2016. In umpteen number of judgments, this Court has held that the guidelines in KSLSA are in a general - 12 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 conformity with the wages fixed under the Minimum Wages Act. 17. The Tribunal has discarded the testimony of PW.3 - Dr.S.S.Nagathan on the ground that he was not a treated Doctor. In umpteen number of judgment, this Court has held that if the treated Doctors are not examined and the Doctor examined is only for the purpose of assessment of disability, his evidence has to be appreciated with utmost care and caution. The reason being that the testimony of a treated Doctor would be more reliable, for, he knows the manner in which the treatment was done and whether his treatment has resulted in the disability or not. If the disability is more, it reflects on his own efficiency. Therefore the Tribunal erred in discarding the testimony of PW.3 out-rightly. The petitioner had suffered fracture of tibial plateau and therefore PW.3 states that there is disability of 25% to 30%. Evidently, the fracture of tibial plateau is going to affect the efficiency of the petitioner since he is a - 13 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 fabricator, which involves lifting of the fabricated grills and other materials and therefore, the functional disability of the petitioner is considered by this Court is 10%. Hence, the loss of future income on account of disability is calculated as `8,750x12x10%x15=1,57,500/- by adopting multiplier of ‘15’. 18. Consequently, the compensation under the head of loss of income during laid up period is assessed for three months and it would be a sum of `8,750/-x3=26,250/-. 19. The Tribunal has awarded a sum of `5,000/- towards loss of amenities in life. When the Tribunal had not awarded any compensation under the head loss of future income, it was incumbent upon the Tribunal to award adequate compensation towards loss of amenities. The said compensation of `5,000/- being on lower side, the same is enhanced to `40,000/-. Hence, the petitioner – Siddu is entitled for total compensation under the following heads : - 14 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 Sl.No. Heads Compensation 1. Transportation `5,000/- 2. Food, attendant and nourishment `15,000/- 3. Medical expenses `1,20,130/- 4. Pain and suffering `50,000/- 5. Loss of amenities `40,000/- 6. Loss of future income `1,57,500/- 7. Loss of income during laid up period `26,250/- Total `4,13,880/- Less : Awarded by the Tribunal (-) `1,95,130/- Enhancement `2,18,750/- Thus, the appellant in MFA No.201080/2019 (MVC No.1874/2016) is entitled for enhanced compensation of `2,18,750/- with interest. 20. Coming to the quantum of compensation amount awarded in MVC No.1875/2016, the petitioner is a girl, aged about 12 years and the judgment of the Apex Court in the case of Master Mallikarjun vs. Divisional Manager, National Insurance Company Limited and another1 prescribes the compensation to be awarded for various disabilities. PW.3 in his testimony has stated that 1 (2014) 14 SCC 396 - 15 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 the petitioner- Priyanka has suffered the disability of about 15% to 20% and therefore, the functional disability having been considered at 10%, she is entitled for a sum of `1,00,000/- which is inclusive of all non pecuniary heads. A sum of `24,359/- has been spent towards medical expenses and same has been granted. Thus, the petitioner – Priyanka is entitled for total compensation under the following heads : Sl.No. Heads Compensation 1. Non pecuniary heads `1,00,000/- 2. Medical expenses `25,000/-/- Total `1,25,000/ `1,25,000/ `1,25,000/ `1,25,000/---- She is entitled for total compensation of `1,25,000/- with interest. 21. Hence, the following: ORDER (i) Both the appeals are allowed in part. (ii) The impugned judgment and award passed by the Tribunal is modified. - 16 - NC: 2025:KHC-K:1460 MFA No. 201081 of 2019 C/W MFA No. 201080 of 2019 (iii) The petitioner in M.V.C.No.1874/2016 is entitled for a sum of ````2,18,750/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization. (iv) The petitioner in MVC No.1875/2016 is entitled for a total compensation of ````1,25,000/- with interest at 6% p.a. from the date of petition till its realization. (v) Respondent No.2 - Insurance Company is directed to deposit the entire compensation amount within a period of six weeks from the date of this order. (vi) Rest of the order passed by the Tribunal remains unaltered. Sd/- (C M JOSHI) JUDGE SMP/SN List No.: 1 Sl No.: 62 CT: AK