Karnataka High Court

Chandrasen S/O Apparao Birajdar vs Nagmurti And Anr on 8 July, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                      MFA No. 202113 of 2019


                   HC-KAR




                               IN THE HIGH COURT OF KARNATAKA,

                                      KALABURAGI BENCH

                             DATED THIS THE 8TH DAY OF JULY, 2025

                                           BEFORE

                            THE HON'BLE MR. JUSTICE RAVI V HOSMANI

                        MISCL. FIRST APPEAL NO. 202113 OF 2019 (MV-I)

                   BETWEEN:

                        CHANDRASEN
                        S/O APPARAO BIRAJDAR,
                        AGE: 49 YEARS,
                        OCC: AGRICULTURE,
                        R/O: GANESH NAGAR,
                        VIJAYAPURA - 586 101.
                                                                 ...APPELLANT

                   (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)

                   AND:

                   1.   NAGMURTI
Digitally signed        S/O MAULAPPA KURANE,
by NIJAMUDDIN
JAMKHANDI               AGE: 44 YEARS,
Location: HIGH          OCC: BUSINESS,
COURT OF
KARNATAKA               R/O: KHAIRAT, TQ: AKKALKOT,
                        DIST: SOLAPUR - 413 001.
                        (MAHARASHTRA STATE).

                   2.   THE BRANCH MANAGER,
                        THE BAJAJ ALLIANZ
                        GENERAL INSURANCE COMPANY LTD.,
                        MADIWALE ARCADE, CLUB ROAD,
                        BELGAUM - 590 001.
                                                             ...RESPONDENTS
                   (BY SRI SUDARSHAN M., ADVOCATE FOR R2;
                       R1 IS SERVED)
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                                             NC: 2025:KHC-K:3719
                                      MFA No. 202113 of 2019


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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
03.07.2019 PASSED IN MVC NO.1034/2015 ON THE FILE OF
THE COURT OF THE III ADDL. SENIOR CIVIL JUDGE AND
MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XII,
VIJAYAPURA AND ALLOW THIS APPEAL AND TO GRANT THE
COMPENSATION OF RS.10,00,000/- ONLY AS CLAIMED BY THE
APPELLANT BEFORE THE TRIBUNAL, IN THE INTEREST OF
JUSTICE AND EQUITY.

     THIS MFA, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:     HON'BLE MR. JUSTICE RAVI V HOSMANI


                      ORAL JUDGMENT

Challenging judgment and award dated 03.07.2019

passed by III Addl. Senior Civil Judge and M.A.C.T.-XII,

Vijayapur (for short, 'tribunal'), in MVC No.1034/2015, this

appeal is filed.

2. Sri Bapugouda Siddappa, learned counsel submitted

appeal was by claimant against dismissal of claim petition. It

was submitted, on 04.01.2013 at about 6:30 p.m., when

claimant was travelling in Mahindra Tempo no.MH-13/AZ-2867,

near land of Dholasgaonkar on Waghadari-Gogaon road, driver

of said vehicle drove it in rash and negligent manner, which

resulted in accident. In accident, claimant sustained grievous

injuries and was taken to hospital. Despite treatment, he did

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not recover fully and sustained permanent physical disability

and loss of earning capacity. He filed claim petition under

Section 166 of Motor Vehicles Act for compensation.

3. On appearance, respondents no.1 and 2 appeared

and opposed claim petition, denying occurrence of accident

involving insured vehicle and claimant suffering injuries therein.

Even, issuance of insurance policy and coverage as on date of

accident and violation of policy conditions were also urged.

4. Based on pleadings, tribunal framed issues and

recorded evidence. Claimant examined himself and Dr.SV

Havinal as PWs.1 to 2 and got marked Exs.P-1 to 17. Insurer

examined its official as RW-1 and got marked Exs.R1 to R4.

5. On consideration, tribunal held claimant had failed

to establish that accident had occurred due to rash and

negligent driving of insured vehicle and dismissed claim

petition. Aggrieved, claimant was in appeal.

6. It was submitted vehicle involved in accident was a

light commercial vehicle. Due to illiteracy and local usage in

complaint, vehicle was mentioned as 'Tempo' no.MH-13/AG-

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2867. In Hospital admission card and MLC intimation it was

described as 'Tom-Tom' vehicle. Taking note of small

inconsistencies, insurer opposed claim denying involvement of

insured vehicle. However, prosecution had completed

investigation and implicated driver of insured vehicle for rash

and negligent driving and causing accident resulting in injuries

to claimant in Ex.P9-charge sheet. It was submitted neither

owner nor driver had challenged charge sheet. Therefore,

tribunal was not justified in dismissing claim petition.

7. On other hand, owner of vehicle is served &

unrepresented. However, Sri M Sudarshan, learned counsel for

insurer opposed appeal. At outset it was submitted, there was

delay of 09 days in filing complaint. Apart from above, there

were various inconsistencies and discrepancies in description of

offending vehicle. It was submitted 'Tom-Tom' was normally

associated with a diesel three wheeler vehicle and could not be

confused with a 'Tempo' which would normally be a four

wheeler. It was submitted in Ex.P.5/Ex.P.6-spot panchanama

and Ex.P.3/P4-complaint, vehicle number was mentioned as

'Tempo' bearing no.MH-13/AG-2867, while in Ex.P.15-

admisison card in column for history of injuries, it was

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described as 'Tom-Tom' vehicle. Even in Ex.R2-MLC intimation

it was described as 'Tom-Tom' vehicle. Under such

circumstances, dismissal of claim petition was justified and

there was no merit in appeal.

8. Heard learned counsel, perused impugned judgment

and award.

9. This appeal is by claimant challenging dismissal of

claim petition. Therefore, point that would arise for

consideration is:

1) Whether tribunal was justified in dismissing claim petition?

2) Whether claimant is entitled for compensation, if so from whom?

10. Point no.1: From above, it is seen claimant had

filed claim petition against owner and insurer of vehicle no. MH-

13/AZ-2867 seeking for compensation on account of

injury/disability sustained in accident that occurred on

04.01.2013 due to rash and negligent driving of insured vehicle

by its driver. In order to establish actionable claim, claimant

relied on police investigation records namely FIR, complaint,

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spot panchanama, motor vehicle inspector's report and charge-

sheet marked as Exs.P1 to P7 and Ex.P9. Perusal of Ex.P2-

translated copy of complaint reveals that it was filed by

claimant herein on 13.01.2013 at 9.10 p.m. after apparent

delay of 09 days with explanation that delay was on account of

claimant being under treatment. Ex.R2 - MLC intimation by

hospital reveals that intimation was registered with no.95/2012

dated 05.01.2013, though Ex.P8 would disclose certificate

being issued on 13.02.2013. Ex.P15 hospital admission card

shows admission of claimant on 04.01.2013 with history of

injuries due to 'RTA' and bears MLC endorsement. Thus,

immediately on admission of claimant to hospital, there was

intimation to police. Same would amount to sufficient

explanation for delay in filing compliant.

11. Insofar as discrepancy about description of type of

vehicle and vehicle number, words 'Tom-Tom' is of colloquial

horizon and may not find support from any provision of law or

notification. Likewise, 'Tempo', may have originated in vehicle

manufacturer's parlance. Admittedly, accident occurred in

mofussil area. Thus, much cannot be attributed to description

of vehicle without specific evidence about same being malafide

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with intention to mislead. Moreover, there is no specific cross-

examination of claimant on this aspect.

12. Insofar as discrepancy in mentioning vehicle

number, though in Ex.P.5/Ex.P.6-spot panchanama and

Ex.P.3/P4-complaint, vehicle number mentioned is MH-13/AG-

2867, in accident spot sketch appended to spot panchanama

there is correct mentioning of vehicle number as MH-13/AZ-

2867. Discrepancy is confined to one alphabet only. However,

possibility of implicating insured vehicle for purposes of claim is

ruled out as vehicle involved in accident was noted to be lying

at the spot when Ex.P.5/Ex.P.6-spot panchanama was drawn

on 14.01.2013. Moreover, on completion of investigation, police

filed charge-sheet as per Ex.P.9/Ex.P.10.

13. While passing impugned award, only reason

assigned by tribunal is failure by Investigating Officer to assign

reasons about discrepancy in vehicle number, while filing

charge-sheet and no explanation by complainant for delay in

filing it. It is observed about that delay in filing complaint would

not be fatal due to forwardal of MLC intimation to police by

hospital. Likewise in case of discrepancy in description of

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vehicle and vehicle number. On overall consideration, material

on record would be sufficient to establish actionable claim

against insurer and conclusion by tribunal to contrary would be

hyper-technical, without taking note of circumstances in proper

perspective. Hence, point no.1 is answered in negative.

Point no.2 :

14. While passing award, tribunal proceeded to

dismiss claim petition in view of its conclusion on point no.1,

without assessing compensation. Hon'ble Supreme Court in

case of APMC, Bangalore v. State of Karnataka and Ors.,

reported in (2022) 7 SCC 796 has held:

"11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under subsection (2) of section 24 of the Act, 2013."

15. In case of Nusli Neville Wadia v. Ivory

Properties & Ors, reported in (2020) 6 SCC 557, it is held

that after amendment of Order 14 Rule 2(2) of CPC w.e.f.

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01.02.1977, despite enabling Court to decide issues of law as

preliminary in case it relates to (i) jurisdiction of court or (ii) a

bar to suit created by any law for time being in force, it was

mandatory for Court to pronounce judgment on all issues.

16. Failure to adhere to same requires a remand back

to tribunal, heaping further delay and misery on injured

claimant. To avoid same, counsel for parties was heard for

purposes of determination of quantum of compensation. This is

a personal injury claim wherein claimant alleged were suffered

not only pain and suffering but also loss of earning capacity. He

is seeking compensation towards pain and suffering, medical

expenses, loss of income during treatment, future loss of

income, future medical expenses as well as compensation

towards loss of amenities.

17. Normally, this Court would award `25,000/- towards

major fractures and `15,000/- to minor fracture. Ex.P.8

discloses claimant sustaining compound fracture of lower end of

right humerus treated with ORIF fixation of inter condylor shaft

dual plate fixation by olecranon osteotomy, apart from other

injuries. Ex.P15 - discharge summary would indicate treatment

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for degloving. In Ex.P.16 - disability certificate also there is

mention of communited fracture of lower end of right humerus.

Under circumstances, it would be appropriate to award

`35,000/- towards pain and suffering.

18. Claimant has produced 18 bills marked as Ex.P11

for total amount of `92,158/- (which includes Hospital Bill with

receipt for `65,000/- and remaining being towards purchase of

medicines). Except eliciting that OPD number and date of

admission/discharge were not mentioned in hospital bill,

nothing material to discredit bills is elicited. Hospital bill

mentions registration number as '1187' which tallies with

registration number in Exs.P.13 and P.15 where particulars of

date of mention and discharge are mentioned. In view of

above, it would be appropriate to award `92,158/- towards

medical expenses.

19. In claim petition and deposition, claimant stated

that he was 45 years of age and earning `10,000/- per month

from agriculture. However, there is no other material placed on

record to corroborate same. In absence, it is wont to assess

income notionally. Notional income for year 2013 is `7,000/- as

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adopted by KSLSA for settlement of cases before Lok Adalath.

Same has to be considered as monthly income. And as

fractures normally take three months to heal, claimant would

be entitled for `21,000/- towards loss of income during laid-up

period.

20. Dr.SV Havinal issued Ex.P16 assessing permanent

physical disability to extent of 22-24%. He also deposed as

PW.2 giving particulars of observation in clinical examination

after referring to treatment records noting restriction to

movements of right elbow and shoulder as follows :

i. Loss of Flexion of Right Elbow by 40%.

ii. Loss of Flexion of Right shoulder by 15%.

iii. Loss of abduction-adduction of Right shoulder by 7.6%.

iv. Restriction of rotation arc of right shoulder by 23%.

21. However, he has assessed disability due to

restriction of movements by 6.5%, due to loss of grip strength

by 3%, inability/difficulty in normal activities of right upper limb

by 8%, wasting of Right Elbow/forearm at 3% and Fixed flexion

of Right Elbow at 3% totalling to 22 to 24%. However,

assessment is of affected limb and there appears some extent

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of overlapping. Considering same and taking note of occupation

of claimant as agriculturist, it would be appropriate to consider

loss of earning capacity at 8%. As per Police investigation

records as well as Treatment records, age of claimant is

mentioned as 45 years, which is determined as his age. Thus

multiplier applicable would be 14. Thus computation of

compensation towards future loss of income would be :

`7,000/- X 8% X 12 X 14 =`94,080/-.

Same is awarded to claimant.

22. Ex.P.13 - discharge card reveals implants in situ.

Even PW.2 has stated about implants. Claimant would be

entitled for compensation towards surgery for removal of

implants. It would be appropriate to award `25,000/- future

medical expenses.

23. As per treatment records, disability certificate and

deposition of PW.2, claimant sustained permanent physical

disability with restriction movement of right upper limb.

Therefore he would be entitled for compensation towards loss

of amenities assessed at `30,000/-.

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24. Thus claimant is held entitled for total compensation

as follows:

1. Pain and suffering `35,000/-

2. Medical expenses `92,158/-

3. Loss of income during laid-up `21,000/- period

4. Future loss of income `94,080/-

5. Future medical expenses `25,000/-

6. Loss of amenities `30,000/-

Total `2,97,238/-

25. Since, there is no dispute about vehicle being

insured, insurer would be liable to pay same. Point no.2 is

answered in affirmative. Consequently, following :

ORDER

i. Appeal is allowed in part, judgment and award dated 03.07.2019 passed in MVC no.1034/2015 by Court of III Additional Senior Civil Judge and MACT-XII, Vijayapur is set-aside, claimant is held entitled for total compensation of `2,97,238/- with interest at rate of 6% per annum from date of claim petition till realization.