Karnataka High Court
Muttamma W/O Saibanna vs Khaja Miyan S/O Shalisab on 20 March, 2025
-1-
NC: 2025:KHC-K:1776
MFA No. 200250 of 2017
C/W MFA No. 200585 of 2017
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C.M. JOSHI
MISCL. FIRST APPEAL NO.200250/2017(MV-D)
C/W
MISCL. FIRST APPEAL NO. 200585/2017(MV-I)
IN MFA NO.200250/2017:
BETWEEN:
MUTTAMMA W/O SAIBANNA,
AGED ABOUT 31 YEARS, OCC: COOLIE,
R/O BELKHERA, TQ. HUMNABAD,
DIST. BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
Digitally signed
by SHIVALEELA
DATTATRAYA
UDAGI AND:
Location: HIGH
COURT OF
KARNATAKA 1. KHAJA MIYAN S/O SHALISAB,
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO.3-3-151, ANDOOR,
BIDAR DIST-584 101,
(OWNER OF THE LORRY BEARING
NO.AP-28/U-3485).
2. UNITED INDIA INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
2-24/5 MAIN ROAD,
NEAR AMBEDKAR CIRCLE,
BIDAR-584 101.
...RESPONDENTS
-2-
NC: 2025:KHC-K:1776
MFA No. 200250 of 2017
C/W MFA No. 200585 of 2017
(BY SRI S.S. ASPALLI, ADVOCATE, FOR R2;
R1-SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 29.09.2016 PASSED BY THE MOTOR VEHICLE ACCIDENT
CLAIMS TRIBUNAL, HUMNABAD, IN M.V.C.NO.411/2014, BY
ENHANCING THE COMPENSATION AND FIX THE ENTIRE LIABILITY
ON RESPONDENT NO.2 TO PAY THE COMPENSATION.
IN MFA NO.200585/2017:
BETWEEN:
SHANTAMMA W/O SHIVRAJ DASHAGOND,
AGED ABOUT 48 YEARS, OCC: COOLIE,
R/O BELKHERA, TQ. HUMNABAD,
DIST. BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. KHAJA MIYAN S/O SHALISAB,
AGE: MAJOR, OCC: BUSINESS,
R/O H.NO.3-3-151, ANDOOR,
BIDAR DIST-584 101.
(OWNER OF THE LORRY BARING
NO.AP-28/U-3485).
2. UNITED INDIA INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
2-24/5 MAIN ROAD, NEAR AMBEDKER CIRCLE,
BIDAR-584 101.
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE, FOR R2;
R1-NOTICE DISPENSED WITH)
-3-
NC: 2025:KHC-K:1776
MFA No. 200250 of 2017
C/W MFA No. 200585 of 2017
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 28.09.2016 PASSED BY THE MOTOR VEHICLE ACCIDENT
CLAIMS TRIBUNAL, HUMNABAD, IN MVC NO.412/2014, BY
ENHANCING THE COMPENSATION AND TO FIX THE ENTIRE LIABILITY
ON RESPONDENT NO.2 TO PAY THE COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, 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)
1. Though these appeals are slated for admission,
with the consent of the parties, they are taken up for final
disposal.
2. Heard learned counsel appearing for the
appellants-petitioners and learned counsel appearing for
respondent No.2 - Insurance Company, in both the
appeals.
NC: 2025:KHC-K:1776
3. These two appeals arise out of the common
judgment dated 28.09.2016 passed in MVC No.411/2014
and 412/2014 by the Member, Motor Vehicle Accident
Claims Tribunal, Humnabad, (for short 'the Tribunal'),
seeking enhancement of the compensation awarded by the
Tribunal.
4. The factual matrix of the case is as below:
a) The appellants in both these appeals were
traveling as pillion riders on the motorcycle bearing
No.KA-39/J-8409, while they were traveling on Bidar-
Humnabad Road, a lorry bearing Reg. No.AP-28/U-3485
came in high speed and negligent manner from back side
and dashed to their motorcycle, resulting in, both these
petitioners and the rider falling down and sustaining
injuries. They were shifted to Government General
Hospital at Hallikhed(B) and thereafter to Prayavi Hospital,
Bidar, for further treatment.
NC: 2025:KHC-K:1776
b) Before the Tribunal, the petitioner - Muttamma
in MVC No.411/2014 claims that she was aged 28 years at
the time of accident, earning a sum of Rs.9,000/- per
month by doing coolie work and after the accident she has
suffered disability and she has lost memory powers etc.,
and as such, prayed that appropriate compensation be
awarded to her.
c) The petitioner - Shantamma in MVC
No.412/2014 claims that she was aged 48 years at the
time of accident; doing coolie work and was earning
Rs.9,000/- per month. Due to accidental injuries she has
suffered permanent disability resulting in decrease in her
income. Both these petitioners claimed compensation
from respondent Nos.1 and 2 on the ground that the
charge-sheet has been filed against the lorry driver by the
police after due investigation.
d) On being served with the notice, respondent
Nos.1 and 2 appeared before the Tribunal and filed their
NC: 2025:KHC-K:1776
written statements. Respondent No.1, apart from denying
the petition averments contended that the accident
occurred due to negligence on the part of the rider of the
motorcycle and if the Tribunal holds that there is
negligence on the part of respondent No.1, the liability
may be fastened upon respondent No.2.
e) The respondent No.2 - Insurance Company
contended that negligence was on the part of the rider of
the motorcycle, since, he had allowed two pillion riders on
his motorcycle and that the terms and conditions of the
policy were violated by respondent No.1. It also
contended that the motorcycle was being driven without
any regard to law, therefore, contributory negligence has
to be attributed to the rider of the motorcycle and to the
petitioners.
f) The Tribunal on the basis of the above
contentions, framed appropriate issues in both the
petitions. The petitioners were examined as PWs.1 and 2
NC: 2025:KHC-K:1776
and the doctor who assessed disability was examined as
PWs.3 and 4, Exs.P1 to P.94 were marked in evidence. No
evidence was lead on behalf of the respondents.
g) After hearing the arguments, the Tribunal came
to the conclusion that the rider of the motorcycle had
allowed both the petitioners to travel as pillion riders and
therefore there was contributory negligence on his part.
The Tribunal attributed 25% of the negligence to the
petitioners herein and deducted such amount from the
compensation payable to them. The Tribunal also held that
these petitioners are entitled for compensation under
different heads as below:
Sl.No. Heads Amount in
(Rs.)
1. Towards loss of future income 1,22,400/-
2. Towards pain and suffering 10,000/-
3. Medical Expenses 46,500/-
4. Towards attendant charges, food 10,000/-
and conveyance
5. Loss of amenities 10,000/-
6. Loss of income during laid up 6,000/-
period
Total 2,09,900/-
NC: 2025:KHC-K:1776
5. Being aggrieved by the same, the petitioner-
Muttamma in MVC No.411/2014 is before this Court in
MFA No.200250/2017 and petitioner-Shantamma in MVC
No.412/2014 is in appeal before this Court in MFA
No.200585/2017.
6. The learned counsel appearing for the
petitioners contended that, the petitioners herein could not
have been attributed with any contributory negligence
since they were the pillion riders. He contended that,
absolutely there is no contribution of any negligence by
these petitioners in commission of the accident, moreover
the lorry had come from behind the motorcycle and
therefore the negligence was solely on the part of the
driver of the lorry. It is submitted that the petitioners
cannot be punished even under any of the criminal law,
which contemplates a culpable negligence. Therefore, in
this regard he relied on the judgment of the Apex Court in
NC: 2025:KHC-K:1776
the case of Mohammed Siddique & Anr. vs National
Insurance Company Ltd., & Ors.1.
7. So far as the quantum is concerned, he submits
that the petitioner-Muttamma was said to have the
disability of about 19.27% towards left upper limb and
40% to the brain. He submits that the Tribunal has taken
the functional disability at 6% and 4%, which has no
correlation to the functional disability of the petitioner. He
also submits that there is need for reassessment of the
compensation.
8. So far as petition in MVC No.412/2014 filed by
the petitioner-Shantamma is concerned he submits that,
the petitioner had sustained only minor injuries and the
Tribunal erred in awarding only Rs.18,500/-.
9. Per contra, learned counsel appearing for the
respondent No.2-Insurance Company would submit that
the petitioners had boarded the motorcycle as pillion riders
2020 SAR (Civ) 348
- 10 -
NC: 2025:KHC-K:1776
and therefore they were also parties to the negligence. He
contends that riding the motorcycle with two pillion riders
itself has to be held as negligence and therefore the
petitioners cannot be separated from such negligence. On
this ground, he defends the impugned judgment
contending that attribution of 25% negligence to the
petitioners is proper and correct. He also submits that the
Tribunal has come to the conclusion that the rider had no
driving licence and as such, its finding is correct.
Regarding quantum he defends the impugned judgment
stating that there is no need for any enhancement.
10. The first aspect is to be decided by this Court is
whether there is any contributory negligence on the part
of the petitioners. Admittedly the petitioners were the
pillion riders. Therefore, under any provisions of law they
could not be held to have committed culpable negligence
and they could not have been punished. When there is no
law, which would punish their negligence while travelling
- 11 -
NC: 2025:KHC-K:1776
as pillion riders, the question of attributing actionable
negligence to them is remote.
11. Further, even if we hold that the petitioners had
insisted to ride as pillion riders it was lookout of the rider-
Raghavendra either to allow them or to refuse to take
them as pillion riders. Therefore, as argued when the main
contributor is not arrayed as party, it cannot be held that
the petitioners herein have contributed any negligence in
commission of the accident.
12. The respondent No.2 if at all wanted to
attribute any contributory negligence to the rider, it should
have impleaded the rider, the owner and insurer of the
motorcycle. When the petitioners were the pillion riders, it
is a case of composite negligence for them and therefore,
the arguments that the attribution of the contributory
negligence to the petitioners is proper cannot be accepted
under any canons of law.
- 12 -
NC: 2025:KHC-K:1776
13. The judgment of the Apex Court in the case of
Mohammed Siddique (supra) in paragraph No.13 holds
as below:
"13. But the above reason, in our view, is
flawed. The fact that the deceased was riding on a
motor cycle along with the driver and another, may
not, by itself, without anything more, make him
guilty of contributory negligence. At the most it
would make him guilty of being a party to the
violation of the law. Section 128 of the Motor
Vehicles Act, 1988, imposes a restriction on the
driver of a two wheeled motor cycle, not to carry
more than one person on the motor cycle. Section
194C inserted by the Amendment Act 32 of 2019,
prescribes a penalty for violation of safety measures
for motor cycle drivers and pillion riders. Therefore,
the fact that a person was a pillion rider on a motor
cycle along with the driver and one more person on
the pillion, may be a violation of the law. But such
violation by itself, without anything more, cannot
lead to a finding of contributory negligence, unless it
is established that his very act of riding along with
two others, contributed either to the accident or to
the impact of the accident upon the victim. There
must either be a causal connection between the
violation and the accident or a causal connection
- 13 -
NC: 2025:KHC-K:1776
between the violation and the impact of the accident
upon the victim. It may so happen at times, that the
accident could have been averted or the injuries
sustained could have been of a lesser degree, if
there had been no violation of the law by the victim.
What could otherwise have resulted in a simple
injury, might have resulted in a grievous injury or
even death due to the violation of the law by the
victim. It is in such cases, where, but for the
violation of the law, either the accident could have
been averted or the impact could have been
minimized, that the principle of contributory
negligence could be invoked. It is not the case of the
insurer that the accident itself occurred as a result of
three persons riding on a motor cycle. It is not even
the case of the insurer that the accident would have
been averted, if three persons were not riding on the
motor cycle. The fact that the motor cycle was hit by
the car from behind, is admitted. Interestingly, the
finding recorded by the Tribunal that the deceased
was wearing a helmet and that the deceased was
knocked down after the car hit the motor cycle from
behind, are all not assailed. Therefore, the finding of
the High Court that 2 persons on the pillion of the
motor cycle, could have added to the imbalance, is
nothing but presumptuous and is not based either
upon pleading or upon the evidence on record.
- 14 -
NC: 2025:KHC-K:1776
Nothing was extracted from PW3 to the effect that 2
persons on the pillion added to the imbalance."
14. It was a case where, in an identical situation
there were two pillion riders on a motorcycle and it was hit
from behind a car. Therefore, even on factual aspects, the
ratio laid down in the above decision is applicable. Under
these circumstances, the finding of the Tribunal that there
is 25% contributory negligence on the part of the
petitioners, who are the pillion riders is totally flawed and
it deserves to be set aside.
15. Coming to the quantum, the petitioner-
Muttamma (petitioner in MVC No.411/2014) had sustained
fracture of left temporal bone in the region of mastoid and
fracture of left clavicle as stated in the wound certificate at
Ex.P94. The disability certificate issued by PW.3-Dr.Abdul
Haqq Baogi, which is at Ex.P87 shows that, she had
suffered the head injury as well as the fracture of clavicle.
He opines that, the disability due to the injuries of the
right ulna bone and left clavicle is 19.27%. He states that
- 15 -
NC: 2025:KHC-K:1776
in case of orthopedic physical disability, body is divided in
three parts upper limb, lower limb and trunk and after
assessing the restrictions of movement, mobility she has
sustained the disability at 19.27%.
16. The PW.4-Rajendra Kothari states that in his
disability certificate issued at Ex.P89 that the petitioner
had suffered fracture of left temporal bone in mastoid
region with diffuse cerebral edema and she was treated
conservatively for head and brain injury and she
discharged from the Hospital. He states that the petitioner
complains of giddiness on and off and fallen number of
times, pain and deafness in left ear, abnormal sounds in
left ear, sleeplessness in the night, unable to carry weight
on hand, neck pain and movements of neck are painful,
lethargic, sense of weakness in arms, heaviness and
confusion in head, forgetfulness etc., Therefore, he
assessed the total disability at 40%. The Tribunal holds
that orthopedic disability resulting in functional disability is
about 6% and that of the brain injury is to the extent of
- 16 -
NC: 2025:KHC-K:1776
4%. While coming to such conclusion it also relies on
judgment of this Court which says that ordinarily 1/3rd of
the physical disability is to be considered as functional
disability.
17. It is pertinent to note that there is no such fixed
rule which says that 1/3rd of the physical disability shall be
taken as functional disability. The judgment of the Apex
Court in the case of Raj Kumar vs. Ajay Kumar and
Another2, and also the recent judgment of the Apex Court
in the case of Sidram v. United India Insurance Co. Ltd.,3
holds that the functional disability is a matter, which needs
to be assessed by the Tribunal, but not by the Medical
Officers. The reason is that the Medical Officer, who
assessed the disability would not be in the knowledge of
the avocation of the person of whom the disability is
assessed. Therefore, the functionality of a person with
reference to his age and avocation would play a vital role
when there is a physical disability to him.
(2011) 1 SCC 343
(2023) 3 SCC 439
- 17 -
NC: 2025:KHC-K:1776
18. Under these circumstances, it appears that the
Tribunal erred in holding that there is 6% and 4%
disability totally 10% to the petitioner-Muttamma.
Considering the fact that she is aged about the 28 years
and had suffered the head injury as well as the fracture of
ulna and clavicle, it would be proper to assess the
cumulative functional disability at 16%.
19. The guidelines issued by the KSLSA for the
purpose of settlement of disputes before the Lok-Adalath
and prescribed notional income of Rs.7,500/- for year
2014, there being no documentary evidence to show that
the income of the petitioner has to be considered. In
umpteen numbers of judgments this Court has held that
the guidelines issued by the KSLSA are in general
conformity with the wages fixed under the Minimum
Wages Act. Therefore, the loss of future income on
account of the disability is calculated as Rs.2,44,800/-
(7500 x 12 x 16% x 17) by adopting the multiplier of '17'
for the age of 28 years.
- 18 -
NC: 2025:KHC-K:1776
20. The loss of income during laid up is calculated
as Rs.22,500/- (7500 x 3) as against Rs.6,000/-
awarded by the Tribunal.
21. The Tribunal has awarded a sum of Rs.10,000/-
towards pain and suffering and the same needs to be
enhanced to Rs.30,000/-.
22. The Tribunal has awarded a sum of Rs.10,000/-
towards loss of amenities in life and considering the age of
the petitioner, the same is assessed to Rs.25,000/-.
23. Thus, the compensation awarded by the
Tribunal under the remaining heads does not require any
enhancement.
24. Thus, the petitioner-Muttamma (in MVC
No.411/2014) is entitled for enhanced compensation as
under:
- 19 -
NC: 2025:KHC-K:1776
Sl.No. Heads Amount in
(Rs.)
1. Towards loss of future income 2,44,800/-
2. Towards pain and suffering 30,000/-
3. Medical Expenses 46,500/-
4. Towards attendant charges, food 10,000/-
and conveyance
5. Loss of amenities 25,000/-
6. Loss of income during laid up 22,500/-
period
Total 3,78,800/-
Less amount awarded by the Tribunal 2,09,900/-
enhancement 1,68,900/-
25. So far as the petitioner-Shantamma in MVC
No.412/2024 is concerned, she had suffered two minor
injuries and she has been awarded a sum of Rs.18,500/-.
26. Considering the fact that she was in hospital for
four days, she is entitled for an additional sum of
Rs.15,000/- as global compensation in addition to what
has been awarded by the Tribunal.
27. In the result, both appeals deserve to be
allowed in-part and pass the following:
ORDER
(i) Both appeals are allowed in-part.
- 20 -
NC: 2025:KHC-K:1776
(ii) The finding of the Tribunal that the
petitioners had contributed 25% towards
negligence is hereby set aside.
(iii) The appellant/petitioner-Muttamma (in MVC
No.411/2014) is entitled for a sum of
Rs.1,68,900/- 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 appellant/petitioner-Shantamma (in
MVC No.412/2014) is entitled for a sum of
Rs.15,000/- in addition to the
compensation awarded by the Tribunal,
along with interest at 6% p.a. from the
date of petition till its deposit (excluding
the delay of 273 days (i.e. 70 days in filing
the appeal, vide order dated 20.03.2025;
- 21 -
NC: 2025:KHC-K:1776
and 203 days in filing the recalling
application, vide order dated 14.11.2024).
(v) The respondent No.2-Insurance company is
directed to deposit the compensation
amount within a period of six weeks from
the date of this order.
(vi) Rest of the order of the Tribunal stands
unaltered.
(vii) Registry to send back the records to the
concerned Court.
Sd/-
(C M JOSHI)
JUDGE
SBS,SDU
CT:AK
