Karnataka High Court

The Branch Manager vs Arjun And Anr on 21 March, 2025

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                                                            NC: 2025:KHC-K:1818
                                                        MFA No. 200684 of 2019
                                                    C/W MFA No. 201845 of 2019



                                 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.200684 OF 2019 (MV-I)
                                               C/W
                           MISCL. FIRST APPEAL NO.201845 OF 2019 (MV-I)

                      IN MFA NO.200684/2019:

                      BETWEEN:

                      SRI. ARJUN S/O SIDDAPPA CHALAWADI,
                      AGED ABOUT 38 YEARS, OCC: MASON,
                      R/O EARLIER AT RONIHAL,
                      NOW RESIDING AT VAZRA HANUMAN NAGAR,
                      BAGALKOT ROAD, VIJAYAPUR.

                                                                    ...APPELLANT
                      (BY SRI. S.S. MAMADAPUR, ADVOCATE)
                      AND:
Digitally signed by
SHIVALEELA
DATTATRAYA
UDAGI                 1.   SRI. VITHOBA S/O NEWARTI BHOSALE,
Location: HIGH
COURT OF
KARNATAKA
                           AGED ABOUT 34 YEARS, OCC: AGRICULTURE,
                           R/O RONIHAL, TQ. BASAVANA BAGEWADI,
                           DIST. VIJAYAPUR-586 101.

                      2.   THE BRANCH MANAGER,
                           NATIONAL INSURANCE CO. LTD.,
                           BEHIND SIDDESHWAR TEMPLE,
                           S.S. ROAD, VIJAYAPUR-586 101.

                                                                ...RESPONDENTS

                      (BY SMT. SANGEETA BHADRASHETTY, ADV. FOR R2;
                      V/O DTD. 28.05.2019, NOTICE TO R1 IS DISPENSED WITH)
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                                         NC: 2025:KHC-K:1818
                                     MFA No. 200684 of 2019
                                 C/W MFA No. 201845 of 2019



       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 04.01.2019 PASSED BY THE
LEARNED III ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT-
XII, VIJAYAPUR, IN MVC NO.1481/2014.


IN MFA NO. 201845/2019:

BETWEEN:

THE BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
BEHIND SIDDESHWAR TEMPLE, S.S. ROAD,
VIJAYAPUR, DIST. VIJAYAPUR,
NOW REPRESENTED BY ITS,
AUTHORIZED SIGNATORY, DIVISIONAL OFFICE,
BILGUNDI COMPLEX, STATION ROAD,
KALABURAGI-585 102.
                                                ...APPELLANT

(BY SMT. SANGEETA BHADRASHETTY, ADVOCATE)

AND:

1.   ARJUN S/O SIDDAPPA CHALAWADI,
     AGE: 39 YEARS, OCC: CENTERING WORK/MASON,
     R/O EARLIER AT RONIHAL,
     NOW RESIDING AT VAZRA HANUMAN NAGAR,
     BAGALKOT ROAD, VIJAYAPUR-586 101.

2.   VITHOBA S/O NEWARTI BHOSALE,
     AGE: 35 YEARS, OCC: AGRIL,
     R/O RONIHAL, TQ. B. BAGEWADI,
     DIST. VIJAYAPUR-586 210.
                                             ...RESPONDENTS

(BY SRI. S.S. MAMADAPUR, ADV. FOR R1;
R2-SERVED)
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                                                  NC: 2025:KHC-K:1818
                                           MFA No. 200684 of 2019
                                       C/W MFA No. 201845 of 2019



     THIS MFA IS FILED UNDER SECTION 173 (1) OF THE
MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL BY
SETTING ASIDE THE IMPUGNED JUDGMENT AND AWARD IN
MVC NO.1481/2014 DATED 04.01.2019, PASSED BY THE III
ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS
TRIBUNAL NO.XII AT VIJAYAPUR.



     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)

Heard the learned counsel appearing for the

appellant and learned counsel for respondent-insurance

company in both the appeals.

2. Being aggrieved by the judgment and the

award in MVC No.1481/2014 by learned III-Additional

Senior Civil Judge and MACT, Vijayapur, the petitioner is

before this Court in MFA No.200684/2019 and the

Insurance company is before this Court in MFA

No.201845/2019.

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3. The parties will be referred to as per their ranks

before the Tribunal for the sake of convenience.

4. The factual matrix of the case is that on

03.07.2014 at about 12 noon, when the petitioner was

allegedly standing near the Milk diary on the road leading

to Ronihal cross from Ronihal village, a motorcycle bearing

No.KA-28/EA-8647 came from his hind side and dashed to

the petitioner resulting in he sustaining fracture of the

proximal tibia, intra-articular fractures on the right knee

and a few other minor injuries. Immediately, he was

shifted to Dr. Kundargi's Hospital at Vijayapur by his

brother and thereafter, on the next day he was shifted to

Dr.G.S.Kulkarni Hospital at Miraj and underwent surgeries.

The petitioner claims that he was aged 34 years and he

was working as centering labourer and was earning

Rs.9,000/- per month and due to the accidental injuries he

has suffered permanent disability and as such he is

entitled for adequate compensation. It was also stated

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that later he took treatment at Dr. Tanga's Hospital and

underwent knee replacement surgery.

5. On being served with the notice, the respondent

Nos.1 and 2 appeared before the Tribunal and filed their

written statements. Respondent No.1 in his written

statement denied the allegations made and it was denied

that accident occurred due to the negligence of the rider of

the motorcycle bearing No.KA-28/EA-8647. It was further

contented that his motorcycle was insured with the

respondent No.2 and if at all any compensation needs to

be paid, the same has to be fastened upon the respondent

No.2. The respondent No.2 took up similar contentions in

its written statement and contented that the compensation

claimed is highly exorbitant, imaginary and untenable and

the terms and conditions of the policy were violated. It

was further contended that no such accident had occurred

and there is a delay in filing the FIR for one day and

therefore, its liability to pay the compensation be

absolved.

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6. It also filed an additional written statement,

after the petition was got amended by the petitioner

stating that stating that the police papers show the time of

the accident as 2:30 PM on 03.07.2014 but the medical

records show the accident to be at 12:00 PM on 3/7/2014

and as such there being the discrepancy, the petition

deserves to be dismissed.

7. On the basis of the above contentions, the

Tribunal framed appropriate issues and additional issues

as below:

ISSUES

1) Whether the petitioner proves that, on 03.07.2014 at about 2-30 p.m., petitioner was standing near Milk dairy on the road leading from Ronihal cross to Ronihal villge at Ronihal, Tq:

B.Bagewadi by the left side of the road, by that time one motorcycle bearing No.KA-28/EA-8647 came from Ronihal cross side, being ridden b its rider in high speed, rash and negligent manner speed, unable to control over his

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motorcycle, ridden abruptly, dashed to the bicycle and caused accident, petitioner sustained fractural injuries?

      2)     Whether      petitioner     is      entitled   for
             compensation?           If so, how much and
             from whom?


      3)     What order or award?


                        ADDL. ISSUE
      1)     Whether the respondent No.2 proves
             that,    due      to    violation     of   policy

conditions, they are not liable to pay compensation?

8. The petitioner was examined as PW1 and the

Doctor who assessed the disability was examined as PW2,

and exhibit P1 to 19 were marked. The official of the

respondent No.2 was examined as RW1 and Ex.R1 and 2

were marked in evidence. After hearing both sides, the

Tribunal came to the conclusion that the accident had

occurred involving the motorcycle owned by respondent

No.1 and insured by respondent No.2 and awarded a

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compensation of Rs.3,58,600/- under different heads as

below:

Injury, Pain and sufferings Rs.20,000/-

 Medical expenses                          Rs.1,73,400/-
 Loss of income due to permanent           Rs.1,15,200/-
 physical disability
 Food and nourishment                      Rs.10,000/-
 Attendant charges                         Rs.10,000/-
 Conveyance charges                        Rs.10,000/-
 Loss    of   amenities    and future      Rs.20,000/-
 unhappiness.
                                Total      Rs.3,58,600/-

9. Being aggrieved by the same the insurance

company as well as the petitioner have approached this

Court in these appeals.

10. The learned counsel appearing for the

appellant-insurance company would submit that the

discrepancy regarding the time of the accident in the

medical records vis-a vis the police records go to the root

of the case. It is pointed out that the delay in filing the

complaint by one day also adds to the contention of the

appellant-insurance company that the motorcycle owned

by the respondent No.1 has been falsely implicated in the

NC: 2025:KHC-K:1818

case with an intention of making unlawful gain. It is

submitted that PW1 in the cross examination admits that

the complaint has been filed after deliberations with

others, with a view to obtain the compensation and the

medical records show that the petitioner had fallen from a

motorcycle after it was dashed by another motorcycle and

as such the testimony of the PW1 is not believable. It is

pointed out that the false implication of the motorcycle

was to be inferred by the Tribunal and the failure in this

regard has resulted in an erroneous award being passed

against insurance company. So far as the quantum of the

compensation amount is concerned, she defends the

impugned judgment saying that there is no need for

enhancement.

11. Per contra, the learned counsel appearing for

the petitioner, who is also an appellant seeking

enhancement of the compensation, submits that the

Tribunal erred in assessing the notional income of the

petitioner at Rs.6,000/- and that the Ex.P14 medical bill

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was not at all considered by the Tribunal. It is pointed out

that only Ex.P13 has been considered by the Tribunal and

the entire bill of Tanga Hospital was not considered.

Regarding the involvement of the motorcycle, he submits

that the complaint was lodged by the brother of the

injured on the next day of the accident as the petitioner

was admitted to Hospital at G.S. Kulkarni Hospital, Miraj.

He submits that though in the cross examination the

petitioner admitted that there was consultation and

deliberation before filing the complaint, that should not be

used to the disadvantage of the petitioner. He submit that

the social status of the petitioner that he was a manual

labourer working in the field of building construction

should be considered while dealing with his testimony. He

points out that though the testimony of the PW1 to some

extent show the discrepancy about the time when the

accident took place, the hospital records would speak the

truth. He submits that the hospital records of Kundargi

Hospital show that petitioner reached the hospital at 2:10

PM and he was brought by his brother Raju in a 108

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Ambulance driven by one Chandrashekhar. Therefore, the

record at Ex.P12 would show that the accident had

occurred at around 11:00 AM and the subsequent part of

Ex.P12 would show that the accident was at about 12

noon. Obviously Ex.P12 do not mention as to who gave

such information to the hospital authorities. During the

cross examination of the PW1, it is elicited that PW1 gave

such information to the hospital authorities. In his

submission, the hospital records show that when petitioner

was taken to the hospital, there may be a mention that

there was a motorcycle over which the petitioner was

sitting or standing and it was hit by another motorcycle,

but that does not take away the involvement of the

motorcycle owned by the respondent No.1 which caused

the accident. The discrepancies may point out that the

manner in which the accident occurred is different, but

that would not absolve the involvement of the vehicle

owned by the respondent No1. Therefore, he contends

that the impugned judgment do not require any

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NC: 2025:KHC-K:1818

indulgence by this Court in respect of the question of

liability.

12. The first aspect to be decided by this Court is

whether there is a false implication of the vehicle owned

by the respondent No1 and insured by the respondent

No.2. The first record about the accident is the Ex.P12. It

is the first page of the case sheet of Kundargi Hospital,

which states that the injuries were suffered due to

accidental fall from motorcycle after dashed by another

motorcycle at 11:00 AM on 3.7.2014. It is evident that

the petitioner was hit by a motorcycle. The 3rd page of the

hospital records of Ex.P12 would show that, the patient

had reported with history of accident at Ronihal village at

about 12 noon on 03.07.2014. He was found to have

suffered grazed abrasion over the right forearm and

swollen tenderness on the right knee with painful

restricted moments. On the next day, he was advised

surgery, but it appears that he was discharged. The

discharge summary shows that he was discharged on

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04.07.2014. The hospital had also issued an intimation to

the police reporting that the petitioner was admitted to the

Hospital with history of RTA on 03.07.2014 at 11:00 AM

near Ronihal of Basavan Bagewadi taluka. Such intimation

was received by the SHO of APMC police station of Bijapur

at 18.40 hours on 03.07.2014.

13. Despite such intimation given to the concerned

police, it appears that on the next day the Kolhar police

station of Bijapur District registered a case on the basis of

the complaint filed by one Bhimasi, who was the brother of

the petitioner. In the said complaint he had mentioned

that he is an eye witness to the accident and on

03.07.2014 afternoon while he was speaking to one

Chidanand, the petitioner was standing by the side of the

road and the respondent No1 came on his motorcycle and

dashed to the petitioner resulting in the accident and

thereafter, he saw the number of the motorcycle and then

the injured he was shifted to the Kundargi Hospital. It is

stated that the accident took place at about 2:30 PM, the

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complaint was received by the concerned police on

04.07.2014 at 11.30 hrs and investigation was launched.

Thereafter, all the police papers show that the accident

had occurred at 2:30 PM. Accordingly, the petitioner had

also mentioned in his petition that it had occurred at 2:30

PM and only after the hospital records at Ex.P12 were

summoned, the petition was amended to show that the

accident was at about 12 Noon.

14. It is to be observed that, there is discrepancy

regarding the time of the accident as per the complaint

filed by Bhimasi and the subsequent investigation

conducted by the police vis-a-vis in hospital records.

There is no reason to disbelieve the hospital records which

speak of the accident occurring either at about 11:00 AM

or 12 Noon. The hospital records of Kundargi Hospital

inevitably established that the accident had occurred at

either 11:00 AM or 12 Noon and the petitioner was treated

at 2:10 PM.

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15. Having decided that, the next aspect would be

whether the involvement of the motorcycle owned by

respondent No.1 is established. Whether it is the police

papers or the hospital records, the involvement of the

motorcycle is established. The complaint pinpoints the

motorcycle owned by the respondent No1 and the

investigation proceeded on the same and ultimately

chargesheet was filed against the respondent No1.

Hospital records do not mention the number of the

motorcycle. However, it refers to "another" motorcycle

over which the petitioner was either sitting or standing.

The cross examination of the PW1 on this aspect shows

that nothing is elicited about the involvement of the

another motorcycle, which was used by the petitioner. It

is only elicited that the complaint was filed on the

motorcycle owned by the respondent No.1 with an

intention to get the compensation.

16. Be that as it may, involvement of the

motorcycle as per the hospital records is not ruled out.

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Hospital authorities need not record the vehicle numbers.

Even they are not bound to record the particulars of the

accident as per the provisions of the Motor Vehicles Act.

Under these circumstances, except the hospital records,

there is nothing else, which shows that petitioner also had

a motorcycle and he had fallen from the said motorcycle.

In that view of the matter, except the discrepancy

regarding the hospital records of Kundargi Hospital at

Ex.P12, there is absolutely no material on record to show

that another motorcycle owned by the petitioner was

involved. The police had received intimation about the

accident that occurred through APMC police station

Bijapur, but that was never considered or used by the

investigating officer of Kolhar Police Station when he

started the investigation.

17. Under these circumstances, the discrepancy in

the hospital records about the existence of another

motorcycle is not going to affect the claim of the petitioner

in any way. Moreover, the testimony of the PW1 cannot

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overrule the involvement of the motorcycle owned by the

respondent No.1. Though a doubt is created by the

admission of the PW1, that cannot be sufficient enough to

overcome the police papers which indict the rider of the

vehicle. It is necessary to note that the rule of

preponderance of probability makes this Court to lean in

favour of the petitioner and creating a dent by way of an

admission by PW1 in the cross-examination would not be

sufficient enough to unsettle the overwhelming evidence

which is available in favour of the petitioner. In that view

of the matter, interference is not required in the

conclusions reached by the Tribunal that the petitioner has

proved the involvement of the motorcycle owned by the

respondent No.1.

18. So far as the quantum of the compensation is

concerned, it is evident that the Ex.P14-Medical Bills was

not considered when the Tribunal dealt with Ex.P8-Hospital

Bills in Para 22 of its judgment. Ex.P14 accounts for a

sum of Rs.2,25,000/- towards the bill of Dr. Tanga

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Hospital, where the petitioner underwent knee

replacement surgeries. Therefore, the medical expenses

of Rs.2,25,000/- has to be awarded to the petitioner in

addition to the sum of Rs.1,73,400/-. In total

Rs.3,98,400/-.

19. The Tribunal based on the testimony of the PW2

has assessed the functional disability of the petitioner at

10%. The PW2 had stated that there is disability of 25%

to 30% to the right lower limb. The said conclusion is

proper and no interference is required.

20. So far as the notional income is concerned, the

guidelines issued by the Karnataka State Legal Services

Authority (KSLSA) for settlement of the disputes before

the Lok Adalat prescribe the notional income of Rs.7,500/-

for the year 2014. In umpteen number of decisions, this

Court has held that the guidelines issued by KSLSA are

held to be acceptable on the ground that they are in

general conformity with the minimum wages fixed under

the Minimum Wages Act. Therefore, the notional income

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of the petitioner is accepted as Rs.7,500/- per month.

Hence, the loss of future income is calculated as

Rs.7,500/- x 12 x 16 x 10% = Rs.1,44,000/-.

21. Consequently, the petitioner is entitled for

compensation of Rs.30,000/- towards the loss of income

during 04 months of laid up period.

22. Having noticed fracture of upper end of the

right tibia, fibula and knee surgery which had to be

undergone, the compensation under the head of pain and

sufferings is a enhanced Rs.40,000/-.

23. Similarly, the compensation under the head of

loss of amenities is also enhanced to Rs.45,000/-.

24. The compensation awarded by the Tribunal

under the remaining heads does not require any

enhancement. Accordingly, the appellant-petitioner is

entitled for compensation of Rs.6,87,400/- as against

Rs.3,58,600/- awarded by the Tribunal, as below:

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     Sl.               Heads           Award by the   Award by this
     No.                                 Tribunal        Court

     1      Injury,    pain    and    Rs.20,000/-   Rs.40,000/-
            sufferings
     2      Medical expenses        Rs.1,73,400/- Rs.3,98,400/-
     3      Loss of income due to Rs.1,15,200/- Rs.1,44,000/-
            permanent      physical
            disability
     4      Food               and    Rs.10,000/-   Rs.10,000/-
            nourishment
     5      Attendant's charges       Rs.10,000/-   Rs.10,000/-
     6      Conveyance charges        Rs.10,000/-   Rs.10,000/-
     7      Loss of amenities and     Rs.20,000/-   Rs.45,000/-
            future unhappiness
     8      Loss of income during              --   Rs.30,000/-
            laid up period

Total Rs.3,58,600/- Rs.6,87,400/-

Less: Award by the Tribunal Rs.3,58,600/-

Total enhancement Rs.3,28,800/-

25. There being no justification for awarding 9%

interest on the compensation, the same requires to be

reduced to 6% per annum in view of the judgment of the

Division Bench of this Court in the case of Shriram

General Insurance Company Ltd., vs. Smt. Laxmi and

Others1 rendered in MFA No.103557/2016 dated 20-03-

2018 (4) AKR 808

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2018. Hence, the rate of interest is reduced to 6% per

annum.

26. In the result, both the appeals deserve to

be allowed in part and hence, the following:

ORDER

(i) Both the appeals are allowed in part.

(ii) The impugned judgment and award

passed by the Tribunal is hereby modified.

(iii) The appellant is entitled for a sum of

Rs.3,28,800/- in addition to what has been

awarded by the Tribunal.

(iv) The Insurance Company is liable to pay

interest at 6% per annum on the entire

compensation of Rs.6,87,400/- at rate of

6% per annum from the date of petition

till realization on entire compensation.