Karnataka High Court
Priyanka vs Sri.Dhanaji And Anr on 5 March, 2025
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NC: 2025:KHC-K:1460
MFA No. 201081 of 2019
C/W MFA No. 201080 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.201081 OF 2019 (MV-I)
C/W
MISCL. FIRST APPEAL NO.201080 OF 2019 (MV-I)
IN MFA NO.201081/2019:
BETWEEN:
PRIYANKA D/O SIDDU SHINDE,
AGED ABOUT 15 YEARS, OCC: STUDENT,
REP BY HER NATURAL FATHER
SIDDU S/O SAMBHAJI SHINDE,
R/O JUCHANDRA GAJANAN NAGAR,
VASAI EAST, THANE-401 208,
NOW RESIDING AT TIKOTA,
Digitally signed
by SHIVALEELA
DATTATRAYA
TQ & DIST. VIJAYAPUR-586 101.
UDAGI
Location: HIGH
COURT OF
KARNATAKA
...APPELLANT
(BY SRI. S.S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. DHANAJI S/O SHIVAJI MUDADE,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O LANDAGEWADI, TQ. KAWATE MAHANKAL,
DIST. SANGLI-416 416.
2. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
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MFA No. 201081 of 2019
C/W MFA No. 201080 of 2019
S.S. FRONT ROAD, BIDARI COMPLEX,
DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADV. FOR R2;
R1-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED-23.02.2019 PASSED BY THE
HON'BLE MEMBER MACT-IV AND III ADDL. DISTRICT JUDGE
VIJAYPUR, IN MVC NO.1875/2016.
IN MFA NO.201080/2019:
BETWEEN:
SRI. SIDDU S/O SAMBHAJI SHINDE,
AGED ABOUT 43 YEARS, OCC: NIL,
R/O JUCHANDRA GAJANAN NAGAR,
VASAI EAST, THANE-401 208,
NOW RESIDING AT TIKOTA,
TQ. & DIST. VIJAYAPUR-586 101.
...APPELLANT
(BY SRI. S.S. MAMADAPUR, ADVOCATE)
AND:
1. SRI. DHANAJI S/O SHIVAJI MUDADE,
AGED ABOUT 43 YEARS, OCC: BUSINESS,
R/O LANDAGEWADI, TQ. KAWATE MAHANKAL,
DIST. SANGLI- 416 416.
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MFA No. 201081 of 2019
C/W MFA No. 201080 of 2019
2. THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
S.S. FRONT ROAD, BIDARI COMPLEX,
DIST. VIJAYAPUR-586 101.
...RESPONDENTS
(BY SRI. SANJAY M. JOSHI, ADV. FOR R2
R1-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE
COMPENSATION AMOUNT BY SUITABLY MODIFYING THE
JUDGMENT AND AWARD DATED 23.02.2019 PASSED BY THE
HON'BLE MEMBER MACT-IV AND III ADDL. DISTRICT JUDGE
VIJAYAPUR, IN MVC NO.1874/2016.
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 common judgment in MVC
No.1874/2016 and 1875/2016 by learned III-Additional
District Judge & MACT, Vijayapura, the petitioners have
approached this Court in these appeals.
2. The factual matrix of the case that is relevant
for the purpose of these appeals is as below:
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The petitioner in MVC No.1874/2016 - Siddu is the
father of the petitioner in MVC No.1875/2016 - Priyanka.
The father and the daughter were going on a two
wheeler bearing No.MH-04/EA-4875 towards
Kavatemahakal. The Cruiser jeep bearing No.MH-45/A-
7025 was going at their front. A TATA Vista car bearing
No.MH-10/BM-7820 came from the opposite direction in
a rash and negligent manner and dashed to the right
side of the cruiser jeep and as a result, the cruiser jeep
turned turtle and fell down on the road. The two
wheeler of the petitioner - Siddu dashed against the said
Tata Vista car and they also fell down and sustained
injuries. A case was registered by the jurisdictional police
and after investigation, they have filed the charge-sheet
against the driver of the Tata vista car for negligent
driving. The owner and insurer of the Tata vista car are
arrayed as respondent Nos.1 and 2 in both the claim
petitions.
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3. The petitioner - Siddu in MVC No.1874/2016
contended that he was aged 40 years, working as a
fabricator and welder, having his own work shop and used
to earn `30,000/- per month and now he has lost his
earning capacity due to permanent disability and as such,
he is entitled for an adequate compensation from the
owner and insurer of the offending car.
4. The petitioner - Priyanka in MVC No.1875/2016
contended that she was aged about 12 years and having
suffered the fractures, she is entitled for adequate
compensation.
5. Respondent Nos.1 and 2 on being issued with
the notice, appeared before the Tribunal and filed their
written statement. The owner of the car contended that
his car was insured with respondent No.2 and the
insurance was inforce and if at all, any compensation is to
be paid, the same be fastened upon respondent No.2.
Inter alia, he denied the negligence of the driver of his car
and the age, income and occupation of the petitioners.
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6. Respondent No.2 contended that the petitioners
are not the residents of the Tikota Village and as such,
they disputed the jurisdiction of the Tribunal. They also
contended that bike owner, insurer and the car driver are
necessary parties. They also have taken similar
contentions as that of the owner of the car. Apart from
that, it was alleged that the driver of the car was not
having a valid driving licence, registration certificate,
fitness certificate etc. and therefore, the terms and
conditions of the policy were violated and sought for
dismissal of the petitions.
7. On the basis of the above contentions, the
Tribunal framed the appropriate issues in both the claim
petitions.
8. The petitioners examined four witnesses as
PW.1 to PW.4 and Ex.P.1 to Ex.P.25 were got marked and
respondent No.2 -Insurance Company examined its official
as RW.1 and the copy of policy was marked as Ex.R.1.
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9. After hearing both sides, the Tribunal held that
there was contributory negligence on the part of both the
petitioners to the extent of 30% and therefore, after
deducting 30%, awarded compensation under different
heads as below :-
Sl. In MVC In MVC
Heads
No. No.1874/2016 No.1875/2016
1. Transportation `5,000/- `5,000/-
Food, attendant and
2. `15,000/- `5,000/-
nourishment
3. Medical expenses `1,20,130/- `24,359/-
4. Pain and suffering `50,000/- `50,000/-
5. Loss of amenities `5,000/- `5,000/-
Total `1,95,130/- `89,359/-
Being aggrieved by the same, the petitioners are before
this Court.
10. Learned counsel appearing for petitioners
contended that the Tribunal failed to apply its mind to the
fact that there could not have been contributory
negligence on the part of the minor petitioner in MVC
No.1875/2016. The Tribunal having erred in fastening
contributory negligence on the part of the petitioner, its
conclusion about the contributory negligence is also not
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sustainable in law. The petitioner - Siddu in MVC
No.1874/2016 being the rider of the motorcycle was riding
the same from behind the cruiser jeep and after cruiser
jeep collided with Tata vista car, it turned turtle and later
the Tata Vista car had dashed against two wheeler of the
petitioner. This shows that the petitioner though was well
under the control of his two wheeler, despite there being
an abrupt collision between two vehicles in front of him,
the accident is solely due to the negligent on the part of
driver of Tata Vista car. Therefore, he submits that the
contributory negligence fastened upon the petitioner -
Siddu is not sustainable in law.
11. He further submits that the compensations
awarded by the Tribunal in both the claim petitions are
also on lower side and the same need to be enhanced.
12. Per contra, learned counsel appearing for
respondent - Insurance Company submits that, the
Tribunal has assessed the contributory negligence of the
petitioner on the basis of the fact that the accident had
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occurred at the center of the road. Therefore, the
negligence assessed by the Tribunal need not be interfered
with. He also submits that the quantum of compensation
assessed is proper and correct and as such, appeals be
dismissed.
13. The first aspect of the matter to be decided by
this Court is about the contributory negligence. As noted
supra, the petitioner in MVC No.1875/2016, is a girl, aged
about 12 years and she was a pillion rider. The Tribunal
while assessing the compensation deducted 30% on
account of contributory negligence. There is no logic or the
reason assigned by the Tribunal in this regard. At any
stretch of imagination, a pillion rider cannot be said to
have contributed any negligence in causing the accident.
Therefore, the said finding prima facie shows that the
Tribunal did not apply its mind to the facts and
circumstances of the case.
14. The police papers which are produced before
the Tribunal would indicate the manner in which the
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accident occurred. The FIR and the complaint which are at
Ex.P.4 and Ex.P.5 would show that two wheeler of the
petitioner - Siddu and the cruiser vehicle were going
towards Landgewadi and the Tata Vista car came from
Kavatemahakal. The complaint describes the manner in
which the accident occurred. It is clearly mentioned in the
complaint that the Tata Vista car bearing Reg.No.MH-
10/BM-7820 came on the wrong side and dashed to the
rear right tyres of the cruiser, resulting in the cruiser
turning turtle several times. Thereafter, it dashed against
the motorcycle ridden by petitioner - Siddu. Therefore, it
is evident that the negligence was on the part of the driver
of the Tata vista car and there being no collision between
two wheeler and the cruiser indicating thereby that the
rider was in full control of his vehicle, the Tribunal could
not have attributed any contributory negligence to the
petitioner - Siddu. It cannot be said that the petitioner -
Siddu was at the speed which was uncontrollable and he
himself had dashed to the Tata vista car. Therefore, it is
evident that the Tribunal failed to assess the manner in
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which the accident had occurred. If at all there was any
collision between the cruiser and the two wheeler, it could
have been said that the petitioner - Siddu was not in
controllable speed of his vehicle. In that view of the
matter, the Tribunal has clearly erred in fastening 30% of
contributory negligence on the petitioner - Siddu. The
impugned judgment to that extent is unsustainable and
liability has to be fastened fully upon the owner and
insurer of the Tata Vista car.
15. Coming to the assessment of compensation, the
petitioner contends that he is aged about 40 years,
working as a fabricator and welder and he has suffered
permanent disability. Though there is no proof of his
income, the notional income has to be considered.
16. The guidelines issued by the KSLSA for the
purpose of settlement of disputes before Lok-Adalat
prescribes a notional income of `8,750/- for the year
2016. In umpteen number of judgments, this Court has
held that the guidelines in KSLSA are in a general
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conformity with the wages fixed under the Minimum
Wages Act.
17. The Tribunal has discarded the testimony of
PW.3 - Dr.S.S.Nagathan on the ground that he was not a
treated Doctor. In umpteen number of judgment, this
Court has held that if the treated Doctors are not
examined and the Doctor examined is only for the purpose
of assessment of disability, his evidence has to be
appreciated with utmost care and caution. The reason
being that the testimony of a treated Doctor would be
more reliable, for, he knows the manner in which the
treatment was done and whether his treatment has
resulted in the disability or not. If the disability is more, it
reflects on his own efficiency. Therefore the Tribunal erred
in discarding the testimony of PW.3 out-rightly. The
petitioner had suffered fracture of tibial plateau and
therefore PW.3 states that there is disability of 25% to
30%. Evidently, the fracture of tibial plateau is going to
affect the efficiency of the petitioner since he is a
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fabricator, which involves lifting of the fabricated grills and
other materials and therefore, the functional disability of
the petitioner is considered by this Court is 10%. Hence,
the loss of future income on account of disability is
calculated as `8,750x12x10%x15=1,57,500/- by adopting
multiplier of '15'.
18. Consequently, the compensation under the
head of loss of income during laid up period is assessed for
three months and it would be a sum of
`8,750/-x3=26,250/-.
19. The Tribunal has awarded a sum of `5,000/-
towards loss of amenities in life. When the Tribunal had
not awarded any compensation under the head loss of
future income, it was incumbent upon the Tribunal to
award adequate compensation towards loss of amenities.
The said compensation of `5,000/- being on lower side,
the same is enhanced to `40,000/-. Hence, the petitioner
- Siddu is entitled for total compensation under the
following heads :
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Sl.No. Heads Compensation
1. Transportation `5,000/-
2. Food, attendant and nourishment `15,000/-
3. Medical expenses `1,20,130/-
4. Pain and suffering `50,000/-
5. Loss of amenities `40,000/-
6. Loss of future income `1,57,500/-
Loss of income during laid up
7. `26,250/-
period
Total `4,13,880/-
Less : Awarded by the Tribunal (-) `1,95,130/-
Enhancement `2,18,750/-
Thus, the appellant in MFA No.201080/2019 (MVC
No.1874/2016) is entitled for enhanced compensation of
`2,18,750/- with interest.
20. Coming to the quantum of compensation
amount awarded in MVC No.1875/2016, the petitioner is a
girl, aged about 12 years and the judgment of the Apex
Court in the case of Master Mallikarjun vs. Divisional
Manager, National Insurance Company Limited and
another1 prescribes the compensation to be awarded for
various disabilities. PW.3 in his testimony has stated that
(2014) 14 SCC 396
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the petitioner- Priyanka has suffered the disability of about
15% to 20% and therefore, the functional disability having
been considered at 10%, she is entitled for a sum of
`1,00,000/- which is inclusive of all non pecuniary heads.
A sum of `24,359/- has been spent towards medical
expenses and same has been granted. Thus, the
petitioner - Priyanka is entitled for total compensation
under the following heads :
Sl.No. Heads Compensation
1. Non pecuniary heads `1,00,000/-
2. Medical expenses `25,000/-/-
Total `1,25,000/-
`1,25,000/-
She is entitled for total compensation of `1,25,000/- with
interest.
21. Hence, the following:
ORDER
(i) Both the appeals are allowed in part.
(ii) The impugned judgment and award passed
by the Tribunal is modified.
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(iii) The petitioner in M.V.C.No.1874/2016 is
entitled for a sum of `2,18,750/- 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.
(iv) The petitioner in MVC No.1875/2016 is
entitled for a total compensation of
`1,25,000/- 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
amount within a period of six weeks from the
date of this order.
(vi) Rest of the order passed by the Tribunal
remains unaltered.
Sd/-
(C M JOSHI)
JUDGE
SMP/SN
CT: AK
