Karnataka High Court

Mudlappa vs Sunil. R on 3 March, 2025

Author: Pradeep Singh Yerur

Bench: Pradeep Singh Yerur

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                                                               NC: 2025:KHC:9365
                                                           MFA No. 4639 of 2023
                                                       C/W MFA No. 2459 of 2019
                                                           MFA No. 3031 of 2024


                          IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 3RD DAY OF MARCH, 2025
                                             BEFORE
                           THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
                        MISCELLANEOUS FIRST APPEAL NO.4639 OF 2023 (MV-I)
                                              C/W
                        MISCELLANEOUS FIRST APPEAL NO.2459 OF 2019 (MV-I)
                        MISCELLANEOUS FIRST APPEAL NO.3031 OF 2024 (MV-I)

                   IN MFA.No.4639/2023:
                   BETWEEN:
                         MUDLAPPA
                         S/O.SANNERAPPA
                         AGED ABOUT 46 YEARS
                         AGRICULTURIST
                         R/AT RUDARAKUNTE VILLAGE
                         NOW R/AT JANATHA COLONY
                         CHALLAKERE TOWN
                         CHITRADURGA DISTRICT-577 598
                                                                     ...APPELLANT
                   (BY SRI SHIVAKUMARAPPA T.C., ADVOCATE)
                   AND:
                   1.    SUNIL R.
                         S/O.ANGASWAMY
                         MAJOR
                         OWNER OF THE MOTORCYCLE
Digitally signed
                         NO.KA-16-L-3778
by                       R/AT HULIKUNTE VILLAGE
GAVRIBIDANUR
SUBRAMANYA               CHALLAKERE TALUK
GUPTA                    CHITRADURGA DISTRICT-577 522
SREENATH
Location: High
Court of           2.    THE BRANCH MANAGER
Karnataka                NEW INDIA ASSURANCE CO.LTD.
                         BRANCH OFFICE
                         VIJAYASHREE B.D.ROAD
                         CHITRADURGA-577 501
                                                                  ...RESPONDENTS
                   (BY SRI HARISH N.R., ADVOCATE FOR R-1;
                       SMT.H.C.LOKESHWARI FOR
                       SRI RAVISHANKAR A., ADVOCATES FOR R-2)
                              -2-
                                           NC: 2025:KHC:9365
                                       MFA No. 4639 of 2023
                                   C/W MFA No. 2459 of 2019
                                       MFA No. 3031 of 2024


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED IN
MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL
MACT, CHALLAKERE AND ENHANCE THE COMPENSATION.
IN MFA.NO.2459/2019:
BETWEEN:
     THE BRANCH MANAGER
     THE NEW INDIA ASSURANCE CO.LTD.
     BRANCH OFFICE
     VIJAYASHREE B.D.ROAD
     CHITRADURGA
     POLICY NO.680502231150200007787
     VALID FROM 20/01/16 TO 19/01/2017

     REP. BY THE MANAGER
     NEW INDIA ASSURANCE CO.LTD.
     MOTOR TP CLAIMS HUB
     2ND FLOOR, MAHALAKSHMI CHAMBERS
     9/2, M.G.ROAD, BENGALURU-560 002
                                                 ...APPELLANT
(BY SMT.H.C.LOKESHWARI FOR SRI RAVISHANKAR A., ADVOCATES)
AND:
1.   SRI MUDLAPPA
     S/O.SANNEERAPPA
     AGED ABOUT 42 YEARS
     AGRICULTURIST
     R/AT RUDARAKUNTE VILLAGE
     NOW R/AT JANATHA COLONY
     CHALLAKERE TOWN-583 131
2.   SRI SUNIL R.
     S/O.RANGASWAMY
     MAJOR
     R/AT HULIKUNTE VILLAGE
     CHALLAKERE TALUK
     DAVANAGERE DISTRICT-583 125
     (OWNER OF MOTOR CYCLE BEARING
     REG.NO.KA-16-L-3778)
                                             ...RESPONDENTS
(BY SRI SHIVAKUMARAPPA T.C., ADVOCATE FOR R-1;
    SRI HARISH N.R., ADVOCATE FOR R-2)
                              -3-
                                           NC: 2025:KHC:9365
                                       MFA No. 4639 of 2023
                                   C/W MFA No. 2459 of 2019
                                       MFA No. 3031 of 2024


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED
IN MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND
ADDITIONAL MACT, CHALLAKERE.

IN MFA.NO.3031/2024:
BETWEEN:
     SRI SUNIL R.
     S/O.RANGASWAMY
     AGED ABOUT 29 YEARS
     OWNER OF MOTORCYCLE
     BEARING REGN.
     NO.KA-16-L-3778
     HULIKUNTE VILLAGE
     CHALLAKERE TALUK-577 522
                                                 ...APPELLANT
(BY SRI HARISH N.R., ADVOCATE)

AND:
1.   THE BRANCH MANAGER
     NEW INDIA ASSURANCE CO.LTD.
     BRANCH OFFICE
     VIJAYASHREE B.D.ROAD
     CHITRADURGA-577 501
     POLICY NO.680502231150200007787
     VALID FROM 20/01/2016 TO 19/01/2017

2.   SRI MUDLAPPA
     S/O.SANNERAPPA
     AGED ABOUT 46 YEARS
     AGRICULTURIST
     RUDARAKUNTE VILLAGE
     NOW R/AT JANTHA COLONY
     CHALLAKERE TOWN-577 536
                                             ...RESPONDENTS
(BY SMT.H.C.LOKESHWARI FOR
    SRI RAVISHANKAR A., ADVOCATES FOR R-1;)
    SRI SHIVAKUMARAPPA T.C., ADVOCATE FOR R-2)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO
SET-ASIDE THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED
IN MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND
                                -4-
                                             NC: 2025:KHC:9365
                                         MFA No. 4639 of 2023
                                     C/W MFA No. 2459 of 2019
                                         MFA No. 3031 of 2024


ADDITIONAL MACT, CHALLAKERE, INSOFAR AS SADDLING THE
LIABILITY OF PAYMENT OF 25% COMPENSATION ON THE
APPELLANT.

      THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

                      ORAL JUDGMENT

These appeals are filed challenging the judgment and

award dated 08.01.2019 passed in MVC.No.178/2017 by

the Senior Civil Judge and Additional MACT, Challakere

(for short, 'the tribunal').

2. The appeal preferred by the claimant is for

enhancement of compensation, being dissatisfied with the

inadequate compensation awarded by the tribunal; the

appeal preferred by the Insurance Company is for setting

aside the impugned judgment and award, whereby the

tribunal fixed 75% of liability on the Insurance Company

and fastened the entire liability on the rider-cum-owner of

the offending vehicle and the appeal preferred by the

owner of the offending vehicle is for absolving him from

fixing of 25% liability.

NC: 2025:KHC:9365

3. Parties to the appeals shall be referred to as per

their status before the tribunal.

4. Brief facts of the case is as under:

On 16.10.2016, the claimant, Mudlappa was

travelling as a pillion rider on a motor cycle bearing

registration No.KA-16-ED-6571 along with the rider

namely, Girisha and another person namely, Dayananda.

When they were proceeding in between Jadekunte-

Hulikunte Village, Challakere Taluk, the owner-cum-rider

of the motor cycle bearing registration No.KA-16-L-3778

came from Jadekunte side towards Hulikunte Village in a

rash and negligent manner with high speed and dashed

against the motor cycle of the claimant, who was a pillion

rider. Due to the said impact, the claimant fell down and

sustained injuries. He was immediately taken to

Government Hospital, Challakere, where he took first aid

treatment and then, he was taken to City Central Hospital,

Davanagere, where he was treated as an inpatient. He

NC: 2025:KHC:9365

suffered trochanteric fracture to right femur and other

injuries to his body.

4.1 Due to the injuries sustained in the Road Traffic

Accident and the expenditure meted out by the claimant

for the treatment, he filed a claim petition seeking

compensation against the respondents i.e. the owner-cum-

rider and Insurance Company of the offending vehicle.

4.2 The respondents i.e. the owner-cum-rider and

the Insurance Company of the offending vehicle appeared

and filed their written statement. Respondent No.1 stated

that the rider of the motor cycle was having a valid and

effective Driving Licence and that if any compensation

amount to be paid by him, the same will have to be

indemnified by respondent No.2-Insurance Company,

whereas respondent No.2-Insurance Company took up a

plea that the accident occurred due to the negligent riding

of the rider of the motor cycle i.e. the claimant's motor

cycle and therefore, there was a contributory negligence

on the part of the rider of the motor cycle, in which the

NC: 2025:KHC:9365

claimant was a pillion rider. It also took up a plea that the

rider of the motor cycle, in which the claimant was a pillion

rider, was not having valid and effective Driving Licence as

on the date of occurrence of accident and therefore, the

Insurance Company is not liable to make good the

compensation for fault and deliberate breach of terms and

conditions of the policy. Hence, sought for dismissal of the

claim petition.

4.3 On the basis of the pleadings, the tribunal

framed relevant issues for consideration.

4.4 In order to establish the case and to prove the

issues framed, the claimant got examined himself as PW.1

and the Doctor as CW.1 and got marked documents as

Exs.P1 to P112, whereas the respondents got examined

two witnesses as RWs.1 and 2 and got marked document

as Exs.R1 to 3.

4.5 On the basis of pleadings and evidence on record

and on hearing the learned counsel for both parties, the

NC: 2025:KHC:9365

tribunal awarded total compensation of Rs.3,39,400/-

along with interest 9% p.a. from the date of petition till

realisation and fastened the liability on both respondent

Nos.1 and 2 and further directed respondent No.1 to

deposit 25% and respondent No.2 to deposit 75% of the

compensation amount.

4.6 Aggrieved by the judgment and award passed by

the tribunal, the claimant, the Insurance Company and the

owner-cum-rider of the offending vehicle are before this

Court challenging the same on several grounds urged in

their respective appeals.

5. It is the vehement contention of learned counsel

for claimant that the judgment and award passed by the

tribunal is erroneous as the tribunal has not taken into

consideration the material evidence, both oral and

documentary. He further contends that the tribunal has

not taken any income for awarding compensation towards

loss of future earning capacity, so also, on the other

heads, the tribunal has committed a gross error in not

NC: 2025:KHC:9365

awarding just and reasonable compensation. On these

grounds, he seeks enhancement of compensation.

6. Learned counsel for Insurance Company

vehemently contends that the tribunal has erred in fixing

the liability of only 25% as against the owner-cum-rider of

the offending vehicle instead of fixing the entire liability on

him, which is not sustainable for the reason that the FIR

and chargesheet have been laid against the owner-cum-

rider of the offending vehicle. Admittedly, he was not

having a valid and effective Driving Licence as on the date

of occurrence of accident. Therefore, the entire liability

requires to be fastened on the owner-cum-rider of the

offending vehicle. It is further contended that out of the

documents produced at Exs.P1 to P112, the Police records

clearly depict filing of FIR, chargehseet and complaint are

against the owner-cum-rider of the offending vehicle,

which has not been controverted or challenged by the

owner-cum-rider of the offending vehicle in any

proceedings before the Court and no proceedings are

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NC: 2025:KHC:9365

produced before the Court to disbelieve the same. Under

the circumstance, when the policy being in force and there

is fundamental breach of the same, it is a pre condition for

the Insurance Company to pay the compensation.

However, if there is violation of any terms and conditions

of the policy, it would be liability of the insured to make

good the compensation rather than the Insurance

Company.

7. Learned counsel for owner-cum-rider of the

offending vehicle vehemently contends that the tribunal

has committed an error in fixing the liability as against the

owner-cum-rider of the offending vehicle and the

Insurance Company, whereas the tribunal has given a

total goby discrediting the materials on record including

the chargesheet which clearly depict that the claimant,

was the pillion rider of the motor cycle, which was involved

in the accident; the rider was triple riding the motor cycle,

so also, the rider namely, Girisha was not possessing a

valid and effective Driving Licence as on the date of

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NC: 2025:KHC:9365

occurrence of accident and thereby the tribunal ought to

have fastened and imputed the contributory negligence as

against the rider of the motor cycle, which was involved in

the accident in which the claimant was a pillion rider. It is

also contended that these aspects are forthcoming in the

Police records so also he has stated the same in his

evidence, which is not controverted by the claimant.

Therefore, he contends that the contributory negligence

and liability ought to have been fastened on the rider of

the motor cycle, in which the claimant was a pillion rider.

On these grounds, he seeks to set-aside the impugned

judgment and award and absolve him of all liabilities.

8. I have heard learned counsels for claimant,

Insurance Company and owner-cum-rider of the offending

vehicle.

9. The fact that on 16.10.2016, the claimant, who

was a pillion rider on the motor cycle ridden by one Girisha

met with an accident with another motor cycle ridden by

the owner-cum-rider of the offending vehicle, has been

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NC: 2025:KHC:9365

proved and established by production of documents as per

Exs.P1 to P112 including the medical records, which

establishes the injuries sustained by the claimant. It is

also clearly apparent and evidenced by production of

Police records namely, FIR, complaint, spot mahazar, IMV

report and chargesheet that a criminal case has been

registered against the owner-cum-rider of the offending

vehicle, which has not been questioned or challenged by

him. Therefore, negligence is rightly attributed as against

the owner-cum-rider of the offending vehicle.

10. Though it is seen that the owner-cum-rider of the

offending vehicle has pleaded that he also sustained

injuries in the road traffic accident, he has not made any

effort to file a complaint or private complaint against the

vehicle involved in the accident, in which the claimant was

a pillion rider or against the rider namely, Girisha in any

Court of law apart from merely stating that the negligence

is to be attributed against the claimant and the rider of the

motor cycle. Therefore, in the absence of any such

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NC: 2025:KHC:9365

material before the Court, the tribunal and this Court, is

left with material that is available on record, to decide the

compensation to be awarded.

11. Now coming to the aspect of age, avocation,

income, multiplier and the compensation to be awarded,

though the claimant has stated different age at several

place, but the age is shown as 46 years in the wound

certificate. Therefore, the age of the claimant is taken as

46 years. Hence, the appropriate multiplier applicable

would be '13' in the present case. The claimant has got

examined by the Doctor-CW.1, who was opined that the

claimant has suffered disability of 55% to the right lower

limb. However, the Doctor has not stated the whole body

disability. Therefore, this Court deems it appropriate to

assess the whole body disability by dividing 55% from

1/3rd, which would come to 18%. Hence, the whole body

disability is assessed at 18%. There are no documents

produced by the claimant to show his income. However, in

the absence of any proof of income, this Court will have to

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NC: 2025:KHC:9365

rely upon the notional income chart of the Legal Services

Authority, which prescribes the income of Rs.9,500/- for

the accident of the year 2016.

12. Under the circumstances, the claimant is entitled

to a sum of Rs.2,66,760/- (Rs.9,500/- x 12 x 13 x 18%)

towards loss of earning capacity due to permanent

disability.

13. The tribunal awarded a sum of Rs.2,29,400/-

towards medical expenses, which is on the actual bills

produced by the claimant, as the claimant was inpatient

for a period of 16 days in the Hospital and he has incurred

financial expenditure. Therefore, the same does not call

for interference and is retained.

14. The tribunal awarded a sum of Rs.1,00,000/-

towards pain and suffering and inconvenience caused to

him and Rs.10,000/- towards attendant charges.

However, taking into consideration that the claimant

sustained two fractures and was inpatient for 16 days, a

sum of Rs.50,000/- is awarded towards pain and

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NC: 2025:KHC:9365

suffering, Rs.25,000/- is awarded towards loss of

amenities and Rs.10,000/- is awarded towards food,

conveyance, attendant and nourishment charges.

15. In view of this Court taking the income of

Rs.9,500/- per month and considering the magnitude of

injuries sustained by the claimant, atleast three months is

required to recuperate and get back to normal day to day

activities, this Court deems it appropriate to award

Rs.28,500/- (Rs.9,500/- x 3) towards loss of income

during laid up period.

16. In view of the above, the claimant would be

entitled to a total compensation of Rs.6,09,660/- as

against Rs.3,39,400/- as mentioned in the table below:

                Heads                      Amount in Rs.
Loss of earning capacity due to               2,66,760-00
permanent disability
Medical expenses                                2,29,400-00
Pain and suffering                                50,000-00
Loss of amenities                                 25,000-00
Food, conveyance, attendant and                   10,000-00
nourishment charges
Loss of income during laid-up period              28,500-00
               TOTAL                           6,09,660-00
                                - 16 -
                                                NC: 2025:KHC:9365

17. The tribunal though has stated at para-30 in its

judgment that the claimant would be entitled to the

compensation amount along with interest @ 9% p.a.,

nothing is stated with regard to the same in the operative

portion of the order. However, I am in agreement with

learned counsel for Insurance Company that the interest

component is on the higher side. Considering the facts and

circumstances of the case, the interest component @ 6%

p.a. would be reasonable. Hence, the interest is awarded

@ 6% p.a.

18. Coming to the aspect of fixing the liability,

apparently, it is seen that owner-cum-rider of the

offending vehicle was not possessing a valid and effective

Driving Licence as on the date of occurrence of accident.

The FIR and chargesheet are filed against him. Therefore,

despite policy being in force, in view of violation of terms

and conditions of the policy, the liability is fixed as against

the owner-cum-rider of the offending vehicle in its

entirety. Under the circumstance, this Court is not inclined

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to accept the submission of learned counsel for owner-

cum-rider of the offending vehicle regarding contributory

negligence of the rider of the vehicle, in which the

claimant was travelling as pillion rider and the same is

negatived.

19. In the present case on hand, the owner-cum-

rider of the offending vehicle has participated in the

proceedings before the tribunal. However, he is before this

Court challenging the judgment and award of the tribunal.

Therefore, he cannot escape from his liability and seek for

absolving him of the liability on the ground of pay and

recovery. The principle of pay and recovery enunciated by

the Hon'ble Apex Court by way of precedent is to see that

the benefit is given to the claimant in the absence of the

owner-cum-rider of the offending vehicle and it is not for

the benefit of the owner of the offending vehicle to take

advantage of his own wrong, when he is represented and

present before the Court. Under the circumstance, since

the owner-cum-rider of the offending is before this Court

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in an appeal, he is saddled with the entire liability and he

shall pay the compensation.

20. Accordingly, I pass the following:

ORDER

i) The appeals are disposed of;

ii) The judgment and award dated 05.09.2019

passed in MVC.No.5911/2018 by XV Additional

Small Causes Judge and XXIII ACMM, Member,

MACT, Benglauru, is modified;