Karnataka High Court
The Divisional Controller vs Sudeep @ Sudi @ Sudeer on 19 March, 2025
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NC: 2025:KHC-K:1722
MFA No. 200387 of 2022
C/W MFA No. 201723 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200387 OF 2022 (MV-I)
C/W
MISCL. FIRST APPEAL NO.201723 OF 2021 (MV-I)
IN MFA NO.200387/2022:
BETWEEN:
SUDEEP @ SUDI @ SUDEER S/O NANU RATHOD @
LAMANI, AGE: 21 YEARS, OCC: COOLIE,
R/O MANUR L.T., TQ. BASAVAN BAGEWADI,
DIST. VIJAYAPURA,
NOW RESIDING AT JALNAGAR,
VIJAYAPUR-586 101.
Digitally signed ...APPELLANT
by SHIVALEELA
DATTATRAYA
UDAGI
Location: HIGH
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
COURT OF
KARNATAKA
AND:
THE DIVISIONAL CONTROLLER,
NEKRTC DIVISIONAL OFFICE,
ATHANI ROAD, VIJAYAPUR-586 101.
...RESPONDENT
(BY SRI. SUDHIRSINGH R. VIJAPUR, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
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MFA No. 200387 of 2022
C/W MFA No. 201723 of 2021
AND AWARD PASSED BY THE I ADDITIONAL SENIOR CIVIL
JUDGE AND MACT-VI VIJAYAPURA AT VIJAYAPURA IN MVC NO.
868/2019 DATED 17.03.2021 AND BE PLEASED TO ALLOW THE
CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FOR BY
THE APPELLANT.
IN MFA NO.201723/2021:
BETWEEN:
THE DIVISIONAL CONTROLLER NEKRTC,
VIJAYAPUR DIVISION,
DIVISIONAL OFFICE, VIJAYAPUR,
THE APPELLANT IS REPRESENTED BY,
ITS CHIEF LAW OFFICER,
CENTRAL OFFICE, SARIGE SADANA,
KALABURAGI.
...APPELLANT
(BY SRI. SUDHIRSINGH R. VIJAPUR, ADVOCATE)
AND:
SUDEEP @ SUDI @ SUDEER S/O NANU RATHOD,
AGE: 21 YEARS, OCC: COOLIE,
NO.1 R/O MANUR L.T., TQ. B. BAGEWADI,
DIST. VIJAYAPUR-586 312.
...RESPONDENT
(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THE ABOVE
APPEAL AND CONSEQUENTLY BE PLEASED TO SET ASIDE THE
JUDGMENT AND AWARD DATED 17.03.2021 PASSED BY THE I-
ADDL. SENIOR CIVIL JUDGE AND MACT-VI AT VIJAYAPURA IN
MVC NO. 868/2019.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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MFA No. 200387 of 2022
C/W MFA No. 201723 of 2021
CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
Even though these matters are slated for admission,
the appeals are taken up for final disposal by consent of
both the parties.
2. Being aggrieved by the judgment and award in
MVC No.868/2019 dated 17.03.2021 by the learned
I-Addl. Senior Civil Judge & MACT-VI, Vijayapura (for
short, 'the Tribunal'), the petitioner as well as respondent-
NEKRTC (for short, 'the Corporation') are before this Court
in these appeals.
3. For the sake of convenience, the parties are
referred to as per their ranks before the Tribunal.
4. The factual matrix of the case is that, on
17.05.2019 at about 10:40 a.m. the petitioner was the
pillion rider on the motorcycle bearing No.KA-28/EL-7173,
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which was ridden by his father-in-law. The said motorcycle
while negotiating curve, was hit by the bus owned by the
Corporation, bearing No.KA-38/F-808, which came from
the opposite direction resulting in the petitioner falling
down and sustaining fracture of shaft of the right femur at
proximal 1/3rd and open type-II fracture of the right tibia.
The petitioner was immediately shifted to the hospital and
he was inpatient for 14 days. Claiming that the petitioner
was a coolie, aged about 19 years at the time of the
accident, sought adequate compensation from the
respondent-Corporation.
5. The petition was resisted by the respondent-
Corporation contending that the compensation claimed is
highly exorbitant, imaginary and untenable and there was
no such negligence on the part of its driver, but the
negligence was on part of the rider of the motorcycle.
Inter alia it also disputed the age, income and occupation
of the petitioner and termed the compensation as highly
exorbitant, imaginary and untenable. Inter alia it also took
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up the contention that the owner and insurer of the
motorcycle were also necessary parties to the petition.
6. After framing of issues, the petitioner was
examined as PW.1 and the doctor, who assessed the
disability was examined as PW.2 and Exs.P1 to 12 were
marked. The driver of the bus was examined as RW.1.
7. After hearing both the sides, the Tribunal has
awarded a compensation of Rs.4,12,000/- to the petitioner
under following heads:
Sl. Heads Compensation in
No (Rs.)
1. Pain and sufferings 20,000/-
2. Medical expenses incurred and
future medical expenses, 1,84,000/-
Attendant, Conveyance,
Nourishing food and other
incidental expenses
3. Loss of income during laid-up 4,200/-
period
4. Loss of future income on 1,94,400/-
account or permanent disability
5. Loss of amenities, life comforts 10,000/-
and expectancy of life
Total 4,12,600/-
8. Being aggrieved by the same, the petitioner is
before this Court seeking enhancement of compensation
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and the respondent-Corporation is before this Court
contending that there was contributory negligence on the
part of the rider of the motorcycle and the same has not
been properly appreciated by the Tribunal.
9. Heard arguments of both sides.
10. The learned counsel appearing for the
respondent-Corporation, who is appellant in MFA
No.201723/2021 would submit that, the Corporation had
taken up the contention that the owner and insurer of the
motorcycle are also necessary parties and that there was
contributory negligence on the part of the rider of the
motorcycle. He submits that the said aspect was not
considered by the Tribunal in a proper manner. He defends
the impugned judgment regarding the quantum of
compensation is concerned, even though feeble attempt is
made to say that the compensation is on the higher side.
11. Per contra, learned counsel for the petitioner
would submit that the petitioner was a coolie and the
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Tribunal has not properly assessed the functional disability
of the petitioner. He contends that PW.2 has stated the
disability of 35% and the Tribunal assessed at 9% which
has no correlation with each other. He also submits that
the compensation awarded under the remaining heads is
also on the lower side and the same needs to be
reassessed by this Court.
12. A careful perusal of the records would reveal
that for the petitioner it was a case of composite
negligence, but not a contributory negligence. Evidently
the petitioner had no role to play in contributing any
negligence in the accident as he was riding pillion. The
Corporation though contended that the owner and insurer
of the motorcycle are necessary parties, did not opt to
invoke the provisions of Order I Rule 10 of CPC. If at all
Corporation was aggrieved by non-impleadment of the
owner and insurer of the motorcycle, nothing prevented it
to file an application under Order I Rule 10 of CPC.
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13. So far as a petitioner is concerned, it was a
case of composite negligence for him and he could have
proceeded with anyone of the tortfeasors, which he
chooses to be proper. Therefore, it cannot be said that the
petition suffered from non-joinder of necessary party so
far as the petitioner is concerned.
14. The judgment of the full bench of this Court in
the case of Ganesh vs. Syed Munned Ahmad and Others1,
which came to be reiterated by this Court in another full
bench decision in the case of KSRTC vs. Arun @ Aravind
and Others2, the law concerning the case of composite
negligence lays down the concept of composite negligence.
It is necessary to observe that both these decisions of the
full bench of this Court were affirmed by the Apex Court in
the case of Khenyei vs. New India Assurance Co. Ltd3.
Therefore, the appeal filed by the NEKRTC-Corporation is
bereft of any merits so far as this contention is concerned.
1998 SCC Online Kar 603
2003 SCC Online Kar 715
(2015) 9 SCC 273
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15. Coming to the quantum of the compensation
amount, it is relevant to note that the petitioner suffered
fracture of shaft of right femur at proximal 1/3rd and open
type-II of fracture of the right tibia. He was operated on
17.05.2019 and discharged on 01.06.2019. PW.2 stated
that there is a physical disability of 35%.
16. The physical disability stated by PW.2 has to be
borne in mind while assessing the functional disability. The
Tribunal considers functional disability at 9%, which
appears to be on the lower side. In the considered opinion
of this Court the functional disability of the petitioner is
held at 13%.
17. It is pertinent to note that the petitioner was a
coolie, aged about 19 years. The age and occupation of
the petitioner as evidenced from the records available are
not in dispute, but what is in dispute is only the income of
the petitioner.
18. The guidelines issued by the KSLSA for the
purpose of settlement of disputes before the Lok-Adalath
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prescribed notional income of Rs.13,250/- for the year
2019. In umpteen numbers of judgments this Court has
held that the guidelines issued by the KSLSA in general
conformity with the wages fixed under the Minimum
Wages Act. Therefore, the income of the petitioner, in the
absence of any other cogent evidence has to be construed
at Rs.13,250/- per month. Therefore, the loss of future
income is calculated as Rs.3,72,060/- (Rs.13,250/- x 12
x 18 x 13%).
19. Consequently holding that the petitioner was
unable to resume his work at least for a period of 3
months a sum of Rs.39,750/- (Rs.13,250/- x 3) is
awarded to the petitioner.
20. The Tribunal has awarded a sum of Rs.20,000/-
towards the pain and suffering to the fact that there were
two fractures it would be just and proper to award a sum
of Rs.40,000/- under this head.
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21. The petitioner was inpatient for 14 days and
therefore a sum of Rs.15,000/- is awarded to him under
the head of attendant, conveyance, food & nourishment,
etc.
22. Looking to the nature of injuries suffered, the
compensation of Rs.10,000/- awarded under the head of
loss of amenities is enhanced to Rs.30,000/-.
23. The compensation awarded under the head of
medical expenses does not require any enhancement.
24. Thus, the petitioner is entered for a total
compensation under following heads:
Sl. Heads Compensation in
No (Rs.)
1. Pain and sufferings 40,000/-
2. Medical expenses 1,84,000/-
3. Loss of income during laid-up 39,750/-
period
4. Loss of future income on Rs.3,72,060/-
account or permanent disability
5. Loss of amenities 30,000/-
6. Towards food, nourishment, 15,000/-
conveyance, etc., charges
Total 6,80,810/-
Less amount awarded by the 4,12,600/-
Tribunal
Enhancement 2,68,210/-
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25. In the result, the appeal filed by the
Corporation is liable to be dismissed and the appeal filed
by the petitioner deserves to be allowed in-part and
hence, the following:
ORDER
(i) The appeal filed by the Corporation in MFA
No.201723/2021 is dismissed;
(ii) The appeal filed by the appellant-claimant
in MFA No.200387/2022 is allowed in-part;
(iii) The appellant/petitioner is entitled for a
sum of Rs.2,68,210/- in addition to the
compensation awarded by the Tribunal,
along with interest at 6% p.a. from the
date of petition till its deposit;
(iv) The respondent-NEKRTC is directed to
deposit the compensation amount within a
period of six weeks from the date of this
order;
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(v) Rest of the order of the Tribunal stands
unaltered;
(vi) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
Sd/-
(C M JOSHI)
JUDGE
SDU
CT: AK
