- 1 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201504 OF 2023 (MV-I) BETWEEN: THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., OPP: MINI VIDHAN SOUDHA, MAIN ROAD, KALBURGI-585 102. …APPELLANT (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: 1. UMESH S/O MANOHAR TIPPANKAR, AGE: 43 YEARS, OCC: COOLIE, R/O PLOT NO. 45, SHAIK ROZA ROAD, NEAR BANASHANKARI SCHOOL, MAHADEV NAGAR, KALABURGI-585 105. 2. RAHUL S/O MAHADEV, AGE: MAJOR, OCC: BUSINESS AND OWNER OF BAJAJ PLATINA MOTOR CYCLE BEARING NO. KA-32/ES-8420, CHASIS NO. MD2A76AY9JWA30195, ENGINE NO. PFYWJA04013, R/O TRITANDA SEVA NAGAR, DEVER TEGANOOR, TQ. CHITTAPUR, DIST. KALABURGI-585 105. …RESPONDENTS (BY SRI. SANJEEV PATIL, ADV. FOR R1; V/O DATED 07.04.2025, THE NOTICE TO R2 IS DISPENSED WITH) Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 01.02.2023 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND MACT KALABURAGI IN MVC NO.166/2020 BY ALLOWING THE APPEAL AS PRAYED FOR. THIS APPEAL COMING ON FOR ORDERS, 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) Heard the learned counsel for the appellant and learned counsel for respondent No.2. 2. Being aggrieved by the quantum of the compensation awarded in MVC No.166/2020 by the learned I Addl. Senior Civil Judge & MACT, Kalaburagi, the respondent No.2-insurance company is before this Court seeking reduction of the compensation on account of contributory negligence. - 3 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 3. The factual matrix of the case is that on that on 25.02.2019, the petitioner was the rider of motorcycle bearing No.K-32/EQ-8649 and while he was going towards Awaralli village on Kalaburagi-Afzalpur road, the motorcycle owned by respondent No.1 and insured by respondent No.2 came from the opposite direction and dashed to the motorcycle of the petitioner resulting in an accident where the petitioner sustained injuries. He was admitted to Government Hospital, Kalaburagi and took treatment as inpatient from 25.02.2019 to 21.03.2019. A case was registered by Ferahatabad P.S. in Crime No.58/2019 and chargesheet was filed against the rider of the motorcycle owned by respondent No.1. The petitioner claimed adequate compensation for the injuries sustained by him. 4. Petition was opposed by the respondent No.2 on the ground that there was contributory negligence on the part of the petitioner and that the terms and conditions of the policy were where violated. It was also - 4 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 contended that they there is a delay of two months 16 days in lodging the complaint and the rider of the offending motorcycle was not having a valid driving licence. Alleging that the compensation claimed is highly exorbitant, the insurance company sought for dismissal of the petition. 5. The Tribunal framed appropriate issues and the petitioner was examined as PW1 and Ex.P1 to 19 were marked. The doctor who assessed the disability was examined as PW2. The respondent No.2 examined it's official as RW1 and Ex.R1 & 2 were marked. After hearing both sides, the Tribunal awarded compensation of Rs.2,31,700/- under following heads: Sl.No. Heads Amount 1 Pain and suffering Rs.10,000/- 2 Attendant charges, food and conveyance charges Rs.10,000/- 3 Loss of future income Rs.1,74,900/- 4 Medical expenditure Rs.1,800/- 5 Future medical expenses Rs.10,000/- 6 Loss of income during treatment Rs.15,000/- 7 Loss of amenities and nutrition food Rs.10,000/- Total Rs.2,31,700/- - 5 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 6. It fastened the liability upon the respondent No.2-insurance company on the ground that the alleged contributory negligence on the part of the petitioner was not established. 7. Being aggrieved by the said the judgment, the insurance company is before this Court in appeal. 8. Learned counsel for the appellant would submit that Tribunal erred in holding that there is no contributory negligence on the part of the petitioner. It being a collision between the two vehicles, the Tribunal should have held that there is contributory negligence on the part of the petitioner. His second prong of the argument is that the compensation awarded by the Tribunal is on higher side since a disability stated by PW2 could not have been relied by the Tribunal since he is not a treated doctor. 9. Per contra, learned counsel for the petitioner /respondent No.1 submit that the compensation awarded by the Tribunal is just proper and reasonable and the - 6 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 Tribunal is justified in assessing the quantum of the compensation by taking 1/3 of the physical disability stated by PW2 as the functional disability. He further submit that the chargesheet being filed against the rider of the respondent No.1, there was no reason to hold that there was any contributory negligence on the part of the petitioner also. Therefore, he defends the impugned judgment and seek dismissal of the appeal. 10. A careful perusal of the available records would reveal that the Ferahatabad police had investigated the matter and ultimately filed a chargesheet against the rider of the vehicle of the respondent No.1. This aspect has been considered by the Tribunal in para 11 and 12 of the judgment. It also comes to the conclusion that there is no evidence on record to show that there was any contributory negligence on the part of the petitioner. Therefore, the finding of the Tribunal that there was no such contributory negligence, being based on the evidence available on record cannot be interfered with simply - 7 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 because the vehicle of the petitioner was also involved. The negligence on the part of the petitioner has not been established and as such the Tribunal has rightly come to the conclusion that there was no negligence on the part of the petitioner. 11. So far as the quantum is concerned, the petitioner had sustained fracture of the left patella and he was inpatient for nearly 27 days. The Tribunal observers that there was fracture of the left patella and the suspicious fracture of the first metatarsal. The Tribunal also appreciates the evidence of the PW2, who states that there is a disability of 30% to the left lower limb. It holds that the said disability would amount to functional disability of 10%. Going to the fact that the petitioner was working as a coolie and aged 40 years. Therefore, the assessment of the Tribunal that there is 10% functional disability is also based on the evidence available on record. It is settled principle of law that simply because the doctor who assessed the disability is not a treated - 8 - NC: 2025:KHC-K:2209 MFA No. 201504 of 2023 doctor, his evidence cannot be discarded. However, such evidence has to be appreciated with caution. In other words, the testimony of a doctor who treated the injured would be on the higher footing than the testimony of the doctor who had not treated an injured. Under these circumstances, this Court do not find any merit in the in the appeal. 12. Consequently, appeal is dismissed at the stage of orders itself. Amount in deposit is ordered to be transmitted to the Tribunal. Sd/- (C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 13 CT: AK