Karnataka High Court
The Branch Manager vs Shekshavali And Ors on 21 March, 2025
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MFA No. 201587 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.201587 OF 2021 (MV-I)
BETWEEN:
THE BRANCH MANAGER,
NATIONAL INS. CO .LTD.,
NO. 12-10-97/57, S.S. TOWER,
1ST FLOOR, GANDI CHOWK,
NEAR PARAS GARDEN, RAICHUR,
(NOW REPRESENTED BY
AUTHORIZED SIGNATORY DIVISION OFFICE,
STATION ROAD, KALABURAGI).
...APPELLANT
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE)
AND:
Digitally signed 1. SHEKSHAVALI
by SHIVALEELA
DATTATRAYA S/O M. KASHEEM SAB,
UDAGI
AGE: 32 YEARS,
Location: HIGH
COURT OF OCC: ASST. TEACHER
KARNATAKA
IN PRIVATE SCHOOL,
R/O PWD CAMP, SINDHANUR,
TQ. SINDHANUR,
DIST. RAICHUR-586 101.
2. S. SHARAVANKUMAR GOUNDER
S/O S. SATHYAVELU,
AGE: MAJOR, OCC: DRIVER OF LORRY
BEARING NO. TN-52/J-6977,
R/O DEVARAPPAN PATTI,
POST: IYYAMPALAYAM-624 204,
BLOCK NAME ATHOOR, DIST. DINDIGUL,
TAMILNADU STATE, INDIA.
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MFA No. 201587 of 2021
3. RUKUMANI M. W/O MANI N.,
154 SANNIYASIPATTY AGRAHARAM BRANCH,
POST OFFICE, POST: SANKARI WEST,
TQ. SANKARI, DIST. SALEEM-637 303,
TAMIL NADU STATE.
...RESPONDENTS
(BY SRI. BASAVARAJ R. MATH, ADV. FOR R1;
R2 AND R3 ARE SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO SETTING ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 16.04.2021 IN MVC NO.261/2018
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC AND MACT AT
LINGASUGUR.
THIS APPEAL 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)
Heard learned counsel appearing for the appellant
and the learned counsel appearing for the respondent.
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2. Being aggrieved by the judgment and award in
MVC No.261/2018 dated 16.04.2021 by the learned Senior
Civil Judge & JMFC, Lingasugur (for short, 'the Tribunal'),
respondent No.3-Insurance Company is in appeal before
this Court.
3. The factual matrix of the case is that, on
09.05.2017 at about 9:00 p.m. the petitioner was moving
on his motorcycle for distribution of marriage card towards
M.G.Circle at Sindhanur. Near the government hospital, a
lorry bearing No.TN-52/K-6977 came from behind the
petitioner in rash and negligent manner and dashed to the
motorcycle resulting in the petitioner sustaining injuries.
He was immediately taken to the government hospital at
Sindhanur and thereafter to Vijayanagara Institute of
Medical Sciences and thereafter to Tirumal hospital. The
petitioner claimed that he was a teacher in a private
school and drawing monthly income of Rs.25,000/- and as
such, he is entitled for compensation of Rs.51,00,000/-
from the owner and insurer of the lorry.
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4. On service of notice, the respondent Nos.1 and
2 did not appear despite service of notice and as such
placed ex-parte. The respondent No.3-Insurance Company
appeared and resisted the petition contending that there
was no negligence on the part of the driver of the lorry
and the driver did not have a valid and effective driving
licence at the time of the accident; there were breach of
terms and conditions of the policy and that the
compensation claimed is highly exorbitant, imaginary and
untenable. Therefore, sought for dismissal of appeal.
5. The Tribunal framed appropriate issues and the
petitioner was examined as PW.1, the Doctor, who
assessed his disability was examined as PW.2 and Exs.P1
to P.105 were marked in evidence. The official of the
respondent No.3-Insurance Company was examined as
RW.1 and Exs.R1 to 5 were marked.
6. After hearing the arguments, the Tribunal
awarded compensation of Rs.7,74,494/- under the
following heads:
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Sl.No. Heads Amount
1. Loss of future income due to Rs.6,27,300/-
disability.
2. Loss of income during period of Rs.10,000/-
treatment.
3. Pain and suffering. Rs.50,000/-
4. Medical expenses. Rs.72,194/-
5. Attendant charges, rest and Rs.5,000/-
nourishment.
6. Transportation charges during the Rs.10,000/-
period of treatment.
Total Rs.7,74,494/-
7. Being aggrieved by the same, the respondent
No.3-Insurance Company is in appeal before this Court.
8. The learned counsel appearing for the
appellant-Insurance Company submits that the cross-
examination of PW.1 shows that the lorry had come from
the opposite direction, but in fact the entire police papers
show that the lorry had come from behind the motorcycle
of the petitioner. Therefore, it is contended that there is a
diagonally contra view elicited in the cross-examination of
the PW.1 casting a doubt about the accident itself. It is
further pointed out that the MVI report at Ex.P4 shows
that there were no damages at the back of the motorcycle
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of the petitioner and the three damages were noted to the
front of the motorcycle. It is also pointed out that no
damages were found on lorry. Therefore, it is contended
that very involvement of the lorry in the said accident is
doubtful. Added to this, it is pointed out that there is a
delay of 1 day in filing the complaint.
9. Regarding the quantum of compensation
amount, the learned counsel appearing for the petitioner
would submit that the physical disability stated by PW.2 at
30% has been accepted by the Tribunal as the functional
disability in calculating the compensation amount. The
Tribunal has not bestowed its attention on the functional
disability of the petitioner. It is pointed out that the
petitioner contends that he was a Teacher in a private
school, but no satisfactory evidence was led by him in this
regard. It is submitted that the quantum of the
compensation is also on the higher side and therefore,
there is need for indulgence by this Court.
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10. Per contra, learned counsel appearing for
respondent No.1-petitioner submitted that the accident
was witnessed by the bystanders near the spot and it is
they, who had admitted the petitioner to the hospital.
Later, the brother of the petitioner was informed and he
came to the hospital and then on the next day he lodged
the complaint. It is contended that the complainant was
not an eyewitness to the accident and therefore, it is the
investigation, which shows that the lorry had come from
behind and dashed to the motorcycle of the petitioner. He
contends that the absence of any damage to the back of
the motorcycle is ofcourse is not explained by the
petitioner, but that would not negate the involvement of
the lorry in the accident. He submits that despite there
being certain discrepancies in the cross-examination of the
PW.1 and the motor vehicle inspector's report, the
involvement of the lorry in the said accident cannot be
denied by the appellant. It is pointed out that any
incorrect investigation cannot be a ground to non-suit the
petitioner since the injuries suffered by him in the accident
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involving the lorry owned by the respondent No.1 and
insured by respondent No.2 has been established.
11. So far as the quantum is concerned, he defends
the improved judgment stating that the functional
disability assessed by the Tribunal at 30% is proper and
though the petitioner had not produced any proof of his
income since he was working in a private school and giving
tuitions, he was unable to fetch any material to show his
income. It is submitted that the nature of injuries suffered
by the petitioner show that his right elbow has suffered
severe damage resulting in the disability and as such he
cannot use his right hand for his avocation. Under these
circumstances, he seek the dismissal of the appeal.
12. The first aspect to be noticed by this Court is
that, the FIR at Ex.P2 was lodged by the brother of the
petitioner. The FIR discloses that when the petitioner was
riding his motorcycle on the left side towards M.G.Circle, a
lorry driver drove the same from behind and caused the
accident.
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13. It is pertinent to note that the complaint was
lodged by the one Shashavali, brother of the petitioner-
Shekshavali. He got the information about the accident
from one Syed Gilani Pasha. The complaint mention that
immediately after the accident, the injured was taken to
Government Hospital, Sindhagi and thereafter, to VIMS
Hospital, Ballari, in an ambulance. Obviously, there was no
time for him to lodge the complaint as he only visited
Ballari and thereafter, on the next day he lodged the
complaint.
14. The Spot Mahazar at Ex.P3 would show the
sketch of the spot of the accident. Evidently, it is on the
left side of the road while going towards M.G.Circle. The
IMV report at Ex.P4 shows that there were no damages to
the Lorry, but the motorcycle of the petitioner had
damages to the front only.
15. The entire investigation papers or the
chargesheet which is at Ex.P2 would show that the
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Investigating Officer has gone under the premise that the
accident occurred when the lorry hit the motorcycle from
behind. The same line of contention is also available in
the petition as well as in the affidavit of the petitioner. In
the cross- examination of the petitioner, it is elicited by
the learned counsel for the Insurance Company that lorry
came from front side suddenly and therefore, he fell down
and sustained injury. The portion of the tyre of the lorry
had run on the hand of the petitioner. He says that he was
severely injured and he is unable to write on the
blackboard due to the injury to the hand. Except this,
there is nothing else which shows that the lorry had come
from the front side. If the lorry had come from the front
side of the petitioner, obviously, the lorry driver was at
fault since it was a wrong side for him. This aspect would
also show that the lorry driver was at fault.
16. It is pertinent to note that, the testimony of
PW1 in the cross- examination and the IMV report are the
only two circumstances which go in favour of the appellant
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herein. On the other hand, the entire investigation
conducted by the Investigating Officer, including the FIR
show that the lorry had come from behind the motorcycle
of the petitioner. Even if we accept that the lorry had
come from front of the petitioner, the negligence was on
the part of the lorry driver since it was a wrong side for
him. It is also worth to note that both of the versions, i.e.,
whether the lorry came from front of the motorcycle or
from the back of the motorcycle, its involvement cannot
be denied. A discrepancy in the manner in which the
accident occurred cannot be a ground to discard the
testimony of the petitioner and the investigation papers.
17. It must be observed by this Court that a case
for compensation is to be assessed on the principles of
preponderance of probability. It is not enough for the
Insurance Company to bring forth a discrepancy in the
testimony of PW1 and the version in the investigation.
Such discrepancy has to be supported by a valid argument
which is acceptable. In a criminal case, it would have been
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sufficient to create a doubt about the incident by citing the
discrepancies or the two versions that was possible in an
event. But that cannot be a case in a civil matter where
the principles of preponderance of probability is applicable.
The overwhelming evidence which is available on record
albeit, the discrepancies regarding the manner of the
accident had happened, point to a single fact that the lorry
insured by the appellant was involved in the accident. In
that view of the matter, the contention that the lorry was
not involved in the accident cannot be accepted.
18. Coming to the quantum of the compensation, it
is worth to note that the petitioner did not produce any
document to show his income and therefore, the Tribunal
accepted the notional income at Rs.10,250/- per month.
The notional income is assessed on the basis of the
guidelines issued by the KSLSA which cannot be said to be
erroneous since it is in general conformity with the wages
fixed under the Minimum Wages Act, for a skilled worker.
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19. So far as the disability is concerned, evidently,
PW2 in his opinion has assessed the physical disability but
not the functional disability. The functional disability has to
be assessed by the Tribunal. Though the Tribunal has not
in express words made an effort to translate the physical
disability into functional disability, it accepts the physical
disability of 30% as the functional disability of the
petitioner.
20. Now this aspect has to be appreciated by this
Court in the light of the avocation of the petitioner. In the
cross- examination of PW1, it is elicited that the petitioner
is unable to lift his right hand and to write on the
blackboard. His avocation as a Teacher or the Tuition Giver
is not denied. Therefore, accepting the avocation of the
petitioner as a Teacher, the functional disability to his right
hand needs to be reassessed. When the Tribunal has
assessed the functional disability at 30%, though without
much discussion on it, this Court feels that there is no
need for any interference in the same. The petitioner is
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aged 30 years and therefore, the assessment of the
functional disability at 30% cannot be interfered with.
Under these circumstances, the quantum of the
compensation arrived at by the Tribunal is also proper and
no interference is required in the same.
21. However, the Tribunal has awarded the interest
at the rate of 9% per annum from the date of petition till
its realization and the same requires to be reduced to 6%
per annum in view of the judgment of the Coordinate
Bench of this Court in the case of Sriram General
Insurance Company Limited Vs. Smt. Lakshmi and
another rendered in MFA No.103557/2016 DD
20-03-2018.
22. In the result, the appeal deserves to be partly
allowed and hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award passed
by the Tribunal is modified. The rate of interest is
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reduced from of 9% p.a., to 6% p.a. from the date of
the petition till its realization.
(iii) The amount in deposit, if any, be transmitted
to the concerned Tribunal forthwith.
(iv) Rest of the judgment of the Tribunal remain
unaltered.
Sd/-
(C M JOSHI)
JUDGE
SDU.tsn*
CT: AK
