Karnataka High Court
Mohammed Fayaz vs Shaik Nazeer And Anr on 4 February, 2025
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NC: 2025:KHC-K:810
MFA No. 200489 of 2020
C/W MFA No. 200155 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200489 OF 2020 (MV-I)
C/W
MISCL. FIRST APPEAL NO.200155 OF 2021 (MV-I)
IN MFA NO.200489/2020:
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
BESIDE PARAS GARDEN,
NEAR GOVINDARAO PETROL BUNK, RAICHUR,
NOW THROUGH ITS AUTHORISED SIGNATORY,
THE NATIONAL INSURANCE COMPANY LIMITED,
1ST FLOOR, BILGUNDI COMPLEX,
OPP. MINI VIDHANA SOUDHA,
MAIN ROAD, KALABURAGI.
Digitally
signed by
LUCYGRACE
LUCYGRACE Date:
2025.02.07
11:01:49 -
...APPELLANT
0800
(BY SRI. SHARANABASAPPA M. PATIL, ADVOCATE)
AND:
1. SRI. MOHAMMED FAYAZ S/O MOHAMMED TAHER
PASHA @ MD TAHER PASHA,
AGE: 29 YEARS, OCC: LATHE MACHINE WORKER
& DRIVER (NOW NIL), R/O H.NO.6-4, 32,
G.D.TOTA, B.R.B. COLLEGE ROAD,
RAICHUR-584 103.
2. SRI. SHAIK NAZEER S/O SHAIK RAJAB ALI,
AGE: 48 YEARS,
OCC: REAL ESTATE BUSINESS & OWNER OF
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MFA No. 200489 of 2020
C/W MFA No. 200155 of 2021
THE MOTOR CYCLE BEARING NO.KA-36/EK-1254,
R/O H.NO.12-11-18/9, LAL PAHADI,
ARAB MOHALLA, RAICHUR-584 101.
...RESPONDENTS
(BY SRI. VEERANAGOUDA MALIPATIL, ADV. FOR R1;
V/O DTD. 03.02.2023, NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE ORDER OF
THE TRIBUNAL AND CALL FOR THE LOWER COURT RECORDS
AND HEAR THE PARTIES AND SET ASIDE THE JUDGMENT
DATED 24.01.2020 AND AWARD DATED 28.01.2020 IN MVC
NO.444/2017 IN THE COURT OF THE PRL. DISTRICT JUDGE
(MACT) AT RAICHUR.
IN MFA NO.200155/2021:
BETWEEN:
MOHAMMED FAYAZ
S/O MOHAMMED TAHER PASHA @ MD TAHER PASHA,
AGE: 29 YEARS, OCC: LATHE MACHINE WORKER
AND DRIVER (NOW NIL),
R/O H.NO.6-4-32, G.D.TOTA,
B.R.B COLLAGE ROAD, RAICHUR.
...APPELLANT
(BY SRI. VEERANAGOUDA MALIPATIL, ADVOCATE)
AND:
1. SHAIK NAZEER S/O SHAIK RAJAB ALI,
AGE: 48 YEARS,
OCC: REAL ESTATE BUSINESS & OWNER OF MOTOR
CYCLE BEARING REG.NO.KA-36/EK-1254,
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MFA No. 200489 of 2020
C/W MFA No. 200155 of 2021
R/O H NO.12-11-18/9, LAL PAHADI,
ARAB MOHALLA, RAICHUR-584 103.
2. THE BRANCH MANAGER,
NATIONAL INSURANCE CO. LTD.,
BESIDE PARAS GARDEN,
NEAR GOVINDARAO PETROL BUNK,
RAICHUR-584 102.
...RESPONDENTS
(BY SRI. SHARANABASAPPA M. PATIL, ADV. FOR R2;
V/O DTD. 30.03.2021, NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND
MODIFY THE JUDGMENT AND AWARD DATED 24.01.2020
PASSED IN MVC NO.444/2017 BY THE PRL. DIST. AND
SESSIONS JUDGE, RAICHUR BY ENHANCING THE
COMPENSATION AS CLAIMED IN THE CLAIM PETITION.
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 judgment and award dated
24.01.2020 in MVC No.444/2017 passed by the learned
Principal District Judge and Member, MACT, Raichur, the
petitioner as well as respondent No.2-Insurance Company
are before this Court in these appeals.
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2. For the sake of convenience, the parties are
referred to as per their ranking before the Tribunal.
3. The factual matrix of the case is as below:
On 03.05.2017, the petitioner being a pillion rider of
motorcycle bearing No.KA-36/EK-1254 was proceeding
from Arabwada towards G.D.Tota. At about 7.30 p.m., the
rider of the motorcycle rode the motorcycle in rash and
negligent manner and he suddenly applied the brake,
resulting in the petitioner falling down from the motorcycle
and he sustained fracture of the shaft of femur with right
foot drop, swelling and tenderness at the left thigh,
fracture of left femur and other minor injuries. He was
immediately shifted to Navodaya Hospital, Raichur and
underwent surgery. The petitioner claimed that he was
aged 26 years and he has suffered partial disability and he
being a mechanic and lathe worker, is unable to perform
his duties as before and it has resulted in depleted income
and as such, he is entitled for compensation.
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4. On being served with the notice by the Tribunal,
respondent No.1-owner of the vehicle appeared through
his counsel and admitted that the petitioner was a pillion
rider, but he denied that the accident was due to his
negligence. He contended that the petitioner fell down on
his own and the compensation claimed is highly
exorbitant. He contended that in case compensation is to
be awarded, the same has to be fastened upon respondent
No.2-Insurance Company, as the insurance policy was in
force.
5. Respondent No.2-Insurance Company appeared
and filed its written statement contending that there is
collusion between the police, the petitioner and
respondent No.1; and the self inflicted accident by the
petitioner has been depicted as an accident occurred at
the negligence of the rider Mohammed Sameer. It was
contended that the petitioner was the rider of the
motorcycle and he fell down on his own fault and
therefore, the present petition is not maintainable.
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Interalia, it was also contended that the terms and
conditions of the policy were violated and the vehicle was
registered in the name of one Khajappa and therefore,
respondent No.2 is not liable to pay any compensation.
The age, income and occupation of the petitioner was also
denied.
6. On the basis of the above pleadings, the
Tribunal framed appropriate issues and the petitioner was
examined as PW.1 and the Medical Officer, who assessed
the disability was examined as PW.2. Exs.P1 to P124 were
marked in evidence. Respondent No.1 did not lead any
evidence, but the official of respondent No.2 was
examined as RW.1 and one witness was examined as
RW.2. Exs.R1 to R5 were marked in their evidence.
7. After hearing both the sides, the Tribunal
allowed the petition in part and directed respondent No.2-
Insurance Company to pay the compensation of
Rs.3,20,541/- under different heads as below:
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For pain and suffering Rs.35,000/-
For medical expenses Rs.25,941/-
For attendant charges Rs.9,000/-
For food & extra nourishment Rs.10,000/-
charges
For loss of earning during the Rs.27,000/-
treatment period for three months at
the rate of Rs.9,000/-
For loss of future earnings due to Rs.1,83,600/-
permanent partial disability caused at
the rate of 10% to whole body
For loss of amenities Rs.10,000/-
For future medical expenses Rs.20,000/-
Total Rs.3,20,541/-
8. Being aggrieved by the said judgment and
award, the Insurance Company is in appeal in MFA
No.200489/2020 and the petitioner is in appeal in MFA
No.200155/2021.
9. The Trial Court records have been secured and
the arguments by both the sides are heard.
10. Learned counsel appearing for respondent
No.2-Insurance Company contends that MLC register
extract/wound certificate produced at Ex.P2 shows that
while riding the bike, due to skid, the petitioner fell down
at about 7:30 p.m. at Zaheerabad road, Raichur.
NC: 2025:KHC-K:810
Therefore, the subsequent statement of the petitioner in
the form of the complaint is contrary to the information
given to the hospital at the time of the admission. Hence,
it is contended that the petitioner is trying to make
unlawful gain by implicating Mohammed Sameer as a rider
of the motorcycle and they are colluding with each other.
It is also submitted that on the basis of false information,
which was given as per Ex.P1, the Investigating Officer
went ahead with the investigation and has filed the charge
sheet. Such an investigation by the police is also vitiated
by collusion and therefore, fastening of the liability on
respondent No.2-Insurance Company is erroneous.
Further, it is contented that the disability assessed by
PW.2 to the extent of 20% has been considered by the
Tribunal, but a functional disability of 10% is taken, which
is on the higher side. According to him, the disability
should have been taken at 1/3rd of 20% and therefore, the
assessment of compensation is not proper.
NC: 2025:KHC-K:810
11. Per contra, learned counsel appearing for the
petitioner contended that the compensation awarded by
the Tribunal is on the lower side. He submits that though
the petitioner had stated that he was earning Rs.18,000/-
per month, the Tribunal erred in assessing the notional
income at Rs.9,000/- per month. It is submitted that the
petitioner was a skilled mechanic working in lathe and
such skill has not been properly appreciated by the
Tribunal. Hence, he seeks indulgence of this Court in
reassessing the compensation.
12. The first aspect to be considered by this Court
is, whether the petitioner was the rider of the motorcycle
and he colluded with respondent No.1 to make unlawful
gain. A perusal of Ex.P1, which is the complaint in the
form of a statement made by the petitioner before the
police discloses that, he and the rider Mohammed Sameer
had left their mechanic shop after their work in the
evening of 03.05.2017. The complaint states that the
maternal uncle of the petitioner by name Mohammed
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Sameer was the rider and they left towards their home. It
is also stated that the motorcycle was ridden by
Mohammed Sameer and he abruptly applied the brake and
therefore, the petitioner fell down. The said complaint was
received by the Assistant Sub-Inspector of Traffic Police
Station, Raichur at about 12:10 a.m. It also states that
the police had received RTA MLC intimation from
Navodaya OP Check Post and therefore, the ASI went to
the Hospital at about 12:30 in the midnight and recorded
the statement of the petitioner and came back to the
Police Station and registered the case. This endorsement
on the complaint shows that soon after the petitioner was
taken to the hospital and he was given first aid, the
hospital authorities had intimated the police and the police
visited the hospital and recorded his statement.
13. A perusal of Ex.P2, the medico legal certificate
issued by the Navodaya Medical College Hospital show that
the petitioner was brought to the Hospital at 8:10 p.m. on
03.05.2017. He was accompanied by the none else than
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said Mohammed Sameer, the father-in-law of the
petitioner. In Ex.P2, it is written as "alleged H/O while
riding the bike due to skid fell down at about 7:30 p.m. at
Zaheerabad road, Raichur." This would show that, it is not
known whether he was riding pillion or as the main rider.
A room to interpret Ex.P2 to mean that the petitioner was
a pillion rider is kept open. Whereas, Ex.P1-the FIR, which
came into existence out of spontaneity, clearly establish
the manner in which the accident happened. It is also
relevant to note that note that during the investigation,
nothing which is suspicious was found by the Investigating
Officer. Obviously, there were none else to express any
suspicion and therefore, the Investigating Officer
ultimately investigated the matter and filed the charge
sheet.
14. A perusal of the cross-examination of PW.1
would show that though there is extensive cross-
examination by the learned counsel for respondent No.2-
Insurance company, there is nothing which would amount
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to an admission of the PW.1. The suggestion that he was
the rider has been denied by him. Therefore, the cross-
examination of the PW.1 would not help the respondent
No.2-Insurance Company in any way. In the above
conspectus of the things, it is evident that the FIR cannot
be doubted, as it is without much delay. Ex.P2 gives room
for an interpretation that the petitioner may also be riding
as a pillion. Moreover, the Medical Officer, who recorded
Ex.P2 was not bound to record the manner in which the
accident happened. What was relevant for the Medical
Officer was, as to in what manner the petitioner had
sustained the injury. In that view of the matter, Ex.P1
being of greater value and it was meant for identifying the
manner in which the accident occurred, will have a greater
importance. Under these circumstances, the contention of
the Insurance Company that the involvement of the
petitioner as a pillion rider is doubtful, cannot be accepted.
15. The next aspect to be considered is about the
quantum of compensation. Both the parties are disputing
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the compensation awarded by the Tribunal. The petitioner
claims that he was a lathe machine mechanic, aged 25
years and earning Rs.18,000/- per month. A lathe
machine mechanic, aged 25 years cannot be said to be a
skilled person. Moreover, admittedly, he was working
under his father-in-law, Mohammed Sameer. Therefore,
the contention of the petitioner that he was earning
Rs.18,000/- per month cannot be accepted.
16. The guidelines issued by the Karnataka State
Legal Services Authority in respect of the settlement of the
claims arising out of the motor vehicle accidents before
the Lok Adalath prescribes the notional income at
Rs.10,250/- per month for the year 2017. In umpteen
number of cases, this Court has held that the said
guidelines issued by the KSLSA are in general conformity
with the wages fixed under the Minimum Wages Act.
Therefore, the notional income of the petitioner is held to
be Rs.10,250/- per month.
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17. The PW.2 - Dr. Vijay Mahantha Prasad in his
testimony states that, he examined the petitioner and he
found that there is pain and tenderness over the left leg.
the petitioner is not able to squat, unable to lift heavy
weight and he is not able to bend forwards. There is
minimal quadriceps lag seen and there is flexion deformity
of around 20 degrees. He also opines that there is limp
seen with antalgic gait. Therefore, he opines that there is
a disability of 20% to the whole body. Obviously, PW.2
could not have stated about the disability to the whole
body, but he can only opine about the physical disability to
the particular limb. The assessment of the functional
disability, which obviously is impairing the functional
capability of the petitioner, is the job of the Tribunal. This
is because the Medical Officer, like PW.2 cannot have any
information or the knowledge about the avocation of the
petitioner. Assessing the avocation, functional
requirements and correlating the same to the physical
disability is the job of the Tribunal. As held by the Apex
Court in the case of Raj Kumar vs. Ajay Kumar and
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Another1, the Medical Officer can only opine about the
physical disability. Therefore, considering the nature of the
disability stated by PW.2 and assessed by him at 20%, the
functional disability assessed by the Tribunal at 10%
appears to be proper. The contention of the learned
counsel for the Insurance Company that it should have
been taken at 1/3rd do not have any logical background. If
there is any difficulty in Co-relating the physical disability
to the functional disability, then the normal practice of
taking 1/3rd of the physical disability as a functional
disability would have been adopted. In the case on hand,
the petitioner being a lathe machine worker, fracture of
the femur and restriction of the movement of the knee
joint definitely affect his functionality and therefore, the
disability of 10% assessed by the Tribunal need not be
interfered with.
(2011) 1 SCC 343
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18. Hence, the compensation under the head of loss
of future earning is calculated as Rs.10,250 x 12 x 10% x
17 = Rs.2,09,100/-.
19. Consequently, the compensation under the
head of loss of income during laid up period is calculated
as: Rs.10,250 x 3 = Rs.30,750/-.
20. The compensation awarded by the Tribunal
under the head of pain and suffering to the tune of
Rs.35,000/- appears to be on the lower side and the same
is enhanced to Rs.40,000/-.
21. The petitioner was an inpatient for a little more
than a month. Therefore, the compensation awarded by
the Tribunal under the head of attendant charges to the
tune of Rs.9,000/- is enhanced to Rs.15,000/-.
22. The second discharge summary at Ex.P7 shows
that the petitioner is suffering from foot drop. This is a
complication that may be arising out of an injury to the
tendon, but there is no medical reports in respect of the
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same. Therefore, the compensation awarded by the
Tribunal under the head of loss of amenities to the tune of
Rs.10,000/- is enhanced to Rs.50,000/-.
23. The compensation awarded by the Tribunal
under the remaining heads i.e., medical expenses, food
and extra nourishment charges and future medical
expenses does not call for any interference by this Court.
24. Hence, the appellant is entitled for the modified
compensation under different heads as below:
Pain and suffering Rs.40,000/-
Medical expenses Rs.25,941/-
Attendant charges Rs.15,000/-
Food & extra nourishment charges Rs.10,000/-
Loss of income during laid up period Rs.30,750/-
Loss of future earnings Rs.2,09,100/-
Loss of amenities Rs.50,000/-
Future medical expenses Rs.20,000/-
Total Rs.4,00,791/-
Less: awarded by Tribunal Rs.3,20,541/-
Enhancement Rs.80,250/-
Thus, the appellant is entitled for enhanced
compensation of Rs.80,250/- with interest.
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25. For the aforesaid reasons, the appeal filed by
the Insurance Company deserves to be dismissed and the
appeal filed by the petitioner deserves to be allowed in
part. Hence, the following:
ORDER
(i) MFA No.200489/2020 filed by the Insurance
Company is dismissed.
(ii) MFA No.200155/2021 filed by the petitioner
is allowed in part.
(iii) The impugned judgment and award passed
by the Tribunal is modified.
(iv) The petitioner is entitled for a sum of
Rs.80,250/- 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.
(v) Respondent No.2 - Insurance Company is
directed to deposit the entire compensation
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amount within a period of six weeks from the
date of this order.
(vi) The amount in deposit before this Court is
ordered to be transmitted to the Tribunal.
(vii) Rest of the order passed by the Tribunal
remains unaltered.
Sd/-
(C M JOSHI)
JUDGE
LG
