- 1 - NC: 2025:KHC-K:1459 MFA No. 200236 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.200236 OF 2019 (MV-D) BETWEEN: MURTUZ S/O FAQIRSAHEB AWATI, AGE: 71 YEARS, OCC: AGRICULTURE & COOLIE, R/O VIVEK NAGAR, IBRAHIMPUR, VIJAYAPURA-586 101. …APPELLANT (BY SRI. BASAVARAJ R. MATH, ADVOCATE) AND: 1. THE GENERAL MANAGER, REDDI SAHAKARI BANK NIYAMITHA, DHARWAD, DHARWAD, OWNER OF BOLER JEEP NO.KA-25/P-2616. 2. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, BHIND S.S. TEMPLE, HERALAGI BUILDING, S.S. CROSS ROAD, VIJAYAPUR-586 101, POLICY NO.61050031156100001599, VALID FROM 11.05.2016 TO 10.06.2017, DATE OF ACCIDENT 01.10.2016. …RESPONDENTS (BY SRI. SHARANABASAPPA M. PATIL, ADV. FOR R2; V/O DTD. 29.03.2019, NOTICE TO R1 IS DISPENSED WITH) Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 27.11.2018 PASSED BY THE III ADDL. DISTRICT JUDGE AND MACT-IV VIJAYAPUR IN MVC NO.1921/2016. THIS APPEAL COMING ON FOR ADMISSION, 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) 1. Heard learned counsel for the appellant and the respondent. 2. Being aggrieved by the judgment and award in MVC No.1921/2016 dated 27.11.2018 by the learned III-Addl. District Judge & MACT-Vijayapura, the petitioner is before this Court in appeal challenging the contributory negligence of 40% and the quantum of compensation awarded by the Tribunal. 3. The factual matrix of the case as may be seen from the records is that on 01.10.2016 at about 12 - 3 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 noon, the petitioner after dropping his grand son at Jain school was returning by riding his two wheeler bearing number KA-28/ED-0342 towards Vijayapura and a Bolero Jeep bearing number KA-25/P-2616 came from Kolhar towards Vijayapura and dashed to the two Wheeler of the petitioner resulting in he sustaining injuries like fracture of the left Tibia, left shaft and lower 1/3rd of fibula with crush injuries. He was taken to District Hospital Vijayapura and thereafter to Yashodhara Hospital, Solapur, where his left leg was amputated above knee. Petitioner contended that he was aged 68 years at the time of the accident, was an agriculturist and as such he has lost his earning capacity and he being rendered dependent on others, is entitled for adequate compensation. 4. On being served with the notice, the owner of the Bolero Jeep i.e. respondent No.1 did not appear and as such he was placed ex-parte. The respondent No.2- insurance company appeared and filed written - 4 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 statement. The respondent No.2 contended that though the policy was valid as on date of the accident, the petitioner himself has caused the accident and as such the insurance company be absolved from the liability. It was contended that the negligence was on the part of the petitioner since he without looking to the oncoming vehicle, tried to cross the road on his two Wheeler and therefore there was negligence on the part of the petitioner. Inter-alia, it also denied the age, income and occupation of the petitioner and termed the compensation claimed as highly exorbitant imaginary and untenable. It was also alleged that the driver of the bolero Jeep had violated the terms and conditions of the policy and therefore the petition be dismissed as against the respondent No.2. 5. On the basis of the above contention, the Tribunal framed appropriate issues and the petitioner was examined as PW-1 and the Doctor who assessed his disability was examined as PW2; Ex.P1 to 20 were - 5 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 marked in evidence. The respondent No.2 marked copy of the insurance policy as Ex.R1 by consent and no ocular evidence was led by it. After hearing the arguments, the Tribunal has awarded a sum of `10,03,800/- and fastened 40% of the contributory negligence on the petitioner. 6. The arguments by learned counsel appearing for the petitioner and the learned counsel appearing for the respondent No.2-insurance company are heard. 7. The learned counsel appearing for the appellant/petitioner contends that the Tribunal erred in fastening 40% of the liability upon the appellant. It is contended that though the complaint mentioned that the petitioner was crossing the road, in fact he was returning from Jain school towards Vijayapura, but the charge sheet mentioned otherwise. All along it is the consistent case of the petitioner that he was returning to Vijayapura after dropping his grandson to the school. - 6 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 Therefore, the petitioner was entering the Kolhar- Vijayapura road from Jain school Cross Road. After he had entered the main road, the Bolero Jeep came from behind and even though the petitioner was on the extreme left side of the road, it dashed against him resulting in the injuries to the petitioner. Therefore, there is no contributory negligence on the part of the petitioner and as such the said finding of the Tribunal is liable to be set aside. 8. The next argument by learned counsel for the petitioner is about the quantum. He contends that the PW2, though he is not a Doctor who had treated the petitioner, had deposed that there is disability of 65%, the Tribunal failed to assess the functional disability of the petitioner when he is aged 68 years. In his submission, it is contended that the Tribunal should have considered the disability of 65% as the functional disability. Therefore, he contends that the compensation - 7 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 awarded by the Tribunal is on the lower side and the same needs to be reassessed. 9. Per contra, learned counsel appearing for the respondent No.2 would submit that the discrepancy in the contention of the petitioner and the charge sheet would go to show that though the petitioner had contended that he was returning to Vijayapura from Jain school, in fact he was going towards Jain school from Vijayapura and he abruptly took his vehicle to the right side and as such the Bolero jeep collided with the two wheeler of the petitioner. Therefore, he submit that the charge sheet being more reliable than other contentions and documents, the Tribunal is justified in holding 40% contributory negligence to the petitioner. Regarding quantum of the compensation, he contends that the disability assessed by the Tribunal at 33% is proper and correct and therefore there is no need for reassessing the same. In this regard he relies on the schedule to - 8 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 the E.C.Act which says that the disability should be 33%. 10. In the above background, it is necessary to consider the manner in which the accident had occurred so as to ascertain the contributory negligence on the part of the petitioner. 11. The perusal of the complaint Ex.P2 would show that one Abhrar Ahammad had lodged the complaint and he had stated that the petitioner had gone to Jain school and was returning from the school at about 12 noon and while going towards Vijayapura, the Bolero jeep came and dashed to the two wheeler of the petitioner. However, after investigation, the police filed the charge sheet as per Ex.P6 wherein it is mentioned that the petitioner came from the opposite direction of the Bolero Jeep and while going towards Jain school, the Bolero Jeep dashed against the two wheeler. Ultimately the driver of the Bolero Jeep was prosecuted by the - 9 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 police. It is pertinent to note that except the spot mahazar at Ex.P3, no other investigation papers to assess the manner in which the accident occurred are produced. The statement of the witnesses and other material would have been relevant in order to ascertain as to how the I.O. came to the conclusion that the petitioner was going towards Jain school but not returning from the Jain school. 12. The perusal of the spot mahazar at Ex.P3 would indicate that it also mentioned that the petitioner was returning from the Jain school and was going towards Vijayapura. The spot mahazar depicts that the accident occurred when the petitioner had entered the Kolhar-Vijayapura road and had passed about 30 feet from the cross road. In other words, he was on Vijayapura road to the extent of about 30 feet from the cross road and the spot is situated about 2 feet away from the edge of the tar road. Obviously the tar road is measuring 24 feet wide. From the perusal of the police - 10 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 papers, it is evident that the Bolero jeep driver was well within the view of any person entering from the cross road to the main road. As per the motor vehicle regulations, any driver has to be cautious while he is approaching any junction. Though, the approach road towards Jain school is a cross road, it is evident that the Jeep driver was in full view of any person who is entering the main road. 13. So far as the petitioner is concerned, he was coming from the Jain school as per his deposition and complaint and his pleadings before the Tribunal. His stand is consistent from the beginning. Even the cross examination of PW1 shows that there is no suggestion that he was coming from Vijayapura towards the Jain school. Therefore, it has to be accepted that the petitioner was going towards Vijayapura from Jain school at about 12 noon and then the accident had occurred. - 11 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 14. The above conclusion would result in holding that when the petitioner entered the main road, he was on the extreme left side and therefore the accident occurred in the mud road but not on the tar road. This circumstance is not explained either in the cross examination of the PW1 or during the arguments by the learned counsel for the respondent No.2. 15. The Tribunal in the impugned judgment, in para 17 states that there are three versions and ultimately it concludes that the charge sheet is more reliable. However it fails to notice that in the cross examination of the PW1, a suggestion is put to the PW1 that he was driving the two wheeler from Jain school towards Vijayapura. In that view of the matter, the conclusions reached by the Tribunal that the petitioner was going from Vijayapura towards Jain school cannot be held to be correct. - 12 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 16. The conclusions of the above discussions would lead us to the fact that the care and caution that should have been exercised by the Bolero Jeep driver was on the higher side since he was in full view of the cross road and a person entering from the cross road to the main road could have been seen by him. Moreover, it being a school zone, any driver on the main road is bound to drive slowly. Hence, the fastening of contributory negligence on the part of the petitioner is not proper and correct. To that extent, the conclusions of the Tribunal are perverse and not sustainable in law. 17. Coming to the quantum of the compensation, the Tribunal has held that the functional disability is 33% since PW 2 had stated that the disability is a 65%. There is no such formula to hold that the physical disability stated by a medical practitioner should be divided by 2 or 3 to assess the functional disability. The relationship between the physical disability and functional disability has to be with reference to the - 13 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 avocation of the petitioner, age of the petitioner and the effect of the physical disability, which he may suffer in the rest of his life. Therefore, when the petitioner states that his age is 68 years and he was an agriculturist, the functional disability on account of the amputation of his left leg above knee has to be assessed by the Tribunal. The tribunal having failed to do assess the functional disability, it is the responsibility of this Court to assess the same. Having considered the age and occupation of the petitioner, this Court is of the view that the functional disability is 70%. This Court hasten to add that if the petitioner was of the younger age, the functional disability would have been different. 18. The petitioner has contended that he was having a monthly income of `8,000/-, the said income claimed by the petitioner being in consonance with the wages fixed under the minimum wages act for the year 2016, the Tribunal erred in holding that the notional income of the petitioner is Rs.6,000/-. Therefore the - 14 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 loss of future earning is calculated as `8,000/- x 12 x 5 x 70% = `3,36,000/-. 19. The Tribunal has not awarded any compensation under the head of loss of amenities in life. Therefore, it would be just and proper to award sum of `75,000/- under this head. 20. The tribunal has not awarded any compensation under the head of loss of income during laid up period. Looking to the nature of injuries it can safely be held that the petitioner was unable to come out of his dependency on others at least for a period of 6 months. Therefore, `8,000 x 6 = `24,000/- is awarded. 21. The compensation under the remaining heads do not require any enhancement. Hence, the petitioner is entitled for a total compensation of `12,60,000/- under the following heads. - 15 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 1. Pain and suffering `50,000/- 2. Loss of future earning `3,36,000/- 3. Artificial Limb `25,000/- 4. Medical expenses, attendant charges, nourishment `7,50,000/- 5. Loss of income during laid up period `24,000/- 6. Loss of amenities `75,000/- Total ````12,60,000/- 22. Hence, the following: ORDER i) The petition is allowed in part. ii) The petitioner is entitled for a sum of `12,60,000/- instead of `10,03,800/- awrded by the Tribunal along with interest at the rate of 6% per annum, from the date of petition till its realization. iii) The order fastening 40% of contributory negligence on the petitioner in set aside. iv) The respondent No.2 - Insurance Company is directed to deposit the compensation amount with interest within 04 months from the date of this judgment. v) Rest of the order passed by the Tribunal remain unaltered. - 16 - NC: 2025:KHC-K:1459 MFA No. 200236 of 2019 vi) The Registry to send back the Trial Court Records to the concerned Court. Sd/- (C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 38 CT: AK