The Divisional Manager, Vs Gurushiddappa Siddappa Payannavar

THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE CO. D.O. KHADE BAZAAR, BELGUAM, NOW REP BY THE ASSISTANT MANAGER NEW INDIA ASSURANCE CO. LTD., SRINATH COMPLEX, IIND FLOOR, NEW COTTON MARKET, HUBLI.

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…APPELLANT

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(BY SRI. M.Y. KATAGI, ADV)

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AND:

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GURUSHIDDAPPA SIDDAPPA PAYANNAVAR AGE: 32 YEARS, OCC: AGRICULTURE, R/O. KARAGUPPI, HUKKERI, DIST: BELGAUM.

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MOHANKUMAR B SHELAR

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Location: HIGH COURT OF KARNATAKA

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SHRI. RAMESH S/O. FAKIRA CHOUGULE AGE: MAJOR, OCC: BUSINESS, R/O. CHANDGAD, PO: KHANGON, TQ & DIST: BELGAUM.

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(OWNER OF MOTOR CYCLE KA-22/EB-181)

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…RESPONDENTS (BY SRI. HARISH S. MAIGUR, ADV FOR R1, NOTICE TO R2 IS SERVED)

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, 1988, AGAINST THE JUDGMENT AND AWARD DTD:21.09.2011 PASSED IN MVC. NO.3148/2008 ON THE FILE OF THE PRESIDING OFFICER, FTC-IV, BELGAUM, AWARDING COMPENSATION OF RS.74,000/-

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NC: 2025:KHC-D:12026 MFA No. 20407 of 2012 C/W MFA.CROB No. 874 of 2012

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HC-KAR

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WITH INTEREST AT THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL THE DATE OF ACTUAL DEPOSIT.

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THIS APPEAL, COMING ON FOR HEARING,

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IN MFA CROSS OBJ NO. 874 OF 2012

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BETWEEN:

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SRI. GURUSHIDDAPPA S/O. SIDDAPPA PAYANNAVAR, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. KARAGUPPI, TQ: HUKKERI, DIST: BELGAUM

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…CROSS OBJECTOR

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(BY SRI. HARISH S MAIGUR, ADV)

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AND:

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RAMESH S/O. FAKIRA CHOUGULE AGE: MAJOR, OCC: BUSINESS R/O. CHANDGAD, POST: KHANAGAON TQ & DIST: BELGAUM.

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THE DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., D.O. KHADE BAZAAR, BELGAUM

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…RESPONDENTS

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(BY SRI. M.Y. KATAGI, ADV FOR R2, NOTICE TO R1 IS DISPENSED WITH)

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THIS MFA.CROB. IN MFA NO.20407/2012 IS FILED U/O.41 RULE 22 R/W. SEC.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DTD:21-09-2011 PASSED IN MVC.NO.3148/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-IV, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THE APPEAL AND THE CROSS OBJECTION, COMING ON FOR ADMISSION, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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NC: 2025:KHC-D:12026 MFA No. 20407 of 2012 C/W MFA.CROB No. 874 of 2012

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HC-KAR

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI)

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This Appeal and the cross objection arise out of

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the judgment and award dated 21.09.2011 passed in MVC No.3148/2008 by the learned Presiding Officer, Fast Track Court-IV, Belgaum.

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Brief facts leading rise to the filing of the appeal and the cross-objection are as follows:

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On 01.12.2008, at about 20:00 hours, the petitioner

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and another were proceeding on a motorcycle bearing registration number KA.22/EB-181 from Kakati to his village, in a rash and negligent manner and when he came near Muktimath temple, on service road, within the limits of Bhutramatti village, the rider lost control over the motorcycle and dashed to the ahead motorcycle bearing registration number KA.49/E.5803 and caused the accident. The petitioner sustained grievous injuries in a road traffic accident. The petitioner filed a claim petition

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for the injuries sustained in the road traffic accident and accordingly prays to allow the claim petition. The another person also filed a claim petition in MVC No.3149 of 2008 for the injuries sustained.

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The owner of the motorcycle filed a statement of objections admitting the petition averments and denying the age, income, and occupation of the petitioner. It is contended that the rider of the motorcycle possessed a valid and effective driving license as of the date of the accident. The owner of the motorcycle is not liable to pay compensation. Hence, on these grounds, he prays to dismiss the claim petition against the owner of the motorcycle.

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The insurance company filed a statement of objections denying the averments made in the claim petition and contended that the rider of the motorcycle did not possess a valid and effective driving license as of the date of the accident. It is contended that two vehicles were involved in the accident. Hence, the claim petition is

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not maintainable for non-joinder of necessary parties i.e., the owner of the insurer of motorcycle bearing registration No.KA.49E.5803. Hence, on these grounds prays to dismiss the claim petitions.

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The Tribunal clubbed both the claim petitions

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and framed the separate issues.

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The petitioners to prove their case, petitioner No.1 in MVC No.3148 of 2008 examined as PW1, petitioner in MVC No.3149 of 2008 was examined as PW2, the doctor was examined as PW3 and 22 documents were marked as Exhibits P1 to P22. In rebuttal, the respondents before the tribunal, have neither led any evidence nor produced any documentary evidence.

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The Tribunal, on assessing the verbal and documentary evidence, allowed the claim petition in part vide judgment dated 21.09.2011. The Tribunal awarded a compensation of ₹74,000, holding the owner and the insurance company jointly and severally liable to pay the

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compensation to the petitioner and directed the insurance company to deposit the compensation amount.

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The insurance company aggrieved by the fastening of the liability by the Tribunal, filed the appeal in MFA No. 20407/2012, and the petitioner, being dissatisfied with the quantum of compensation, filed the crossobjection in MFA CROB No. 874/2012 seeking enhancement of the compensation.

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Heard the learned counsel for the insurance company, and the learned counsel for the petitioner.

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Learned counsel for the insurance company submits that the petitioner himself was riding the motorcycle, and he will step into the shoes of the owner. Hence, the claim petition filed under Section 163A of the Motor Vehicles Act is not maintainable. To buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of Ramkhiladi and another

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v. United India Insurance Co. Ltd. and another reported

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in 2020 ACJ 627 . He also submits that the petitioner

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claims that he used to earn ₹3,200/ - per month. Income of the petitioner is more than ₹ 40,000/-, therefore, the claim petition is not maintainable under Section 163A of the Motor Vehicles Act. He also submits that the disability assessed by the Tribunal is on the higher side. Hence, on these grounds, he prays to dismiss the appeal filed by the insurance company and to dismiss the cross objection.

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petitioner submits that the claim petition filed under Section 163A of the Act does not require any proof of negligence for seeking compensation. To buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of The New India

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Assurance Company Limited v. Usha Devi and others in Special Leave Petition (Civil) No.15191/2020 disposed of on 14.07.2025. He submits that if there are two judgments on the same point, the Court should consider the latest decision as per Article 141 of the Constitution of India. He also submits that the Tribunal has taken the

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notional income, which is on the lower side. He also submits that the petitioner has examined the doctor as PW3, who opined that the petitioner has suffered a disability to the extent of 75% to the whole body. Whereas the Tribunal has taken the permanent disability at 10% which is on the lower side. Hence, on these grounds, he prays to dismiss the appeal filed by the insurance company and to allow the cross objections.

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Perused the records, and considered the submissions of the learned counsel for the parties.

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The point that would arise for consideration are regarding the liability and the quantum of compensation.

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There is no dispute regarding the occurrence

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of the accident and the injuries sustained by the petitioner in a road traffic accident. The accident occurred due to the rash and negligent riding of the rider of the motorcycle bearing registration number KA.22/EB 5181. To prove that the accident occurred due to the rash and negligent riding of the rider of the motorcycle, the petitioner has produced

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a copy of a charge sheet marked as Exhibit P8, which discloses that the accident occurred due to the rash and negligent riding of the rider of the motorcycle bearing registration number KA.22/EB -811.

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Regarding liability : The learned counsel for the insurance company has contended that the petitioner himself was the rider of the motorcycle. Hence, he will step into the shoes of the owner. Therefore, he is not liable to claim compensation under Section 163A of the Motor Vehicles Act. To buttress his argument, he placed reliance on the decision of the Hon'ble Apex Court in the case of Ramkhiladi (supra). Similar argument was placed before the Hon'ble Apex Court in the case of Usha Devi

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(supra). The Hon'ble Apex Court, considering the submissions of the learned counsel appearing for the insurance company, at paragraph 13 it h as held as follows:

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“13. In the light of aforesaid exposition of law enunciated by this Court which we are also in agreement, and as such we are of the considered view that compensation cannot be determined as prescribed under

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Section 166 of the MV Act as sought for by the claimant, but on the other hand it requires to be determined under Section 163A read with Second Schedule of the Act, particularly when claim petition is filed under the said provision.”

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In the case referred to, above, the driver himself was driving the vehicle. The Supreme Court did not accepted the contentions raised by the learned counsel for the insurance company. In the said case, it is held that the claim petition filed under Section 163A of the Act is maintainable and dismissed the appeal filed by the insurance company. The issue involved in the present case is squarely covered by the judgment of the Hon'ble Apex Court in the case of Usha Devi (supra). In view of the proposition laid down in the case of Usha Devi , the Tribunal was justified in fastening the liability on the insurance company.

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17. Insofar as quantum of compensation : The

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learned counsel for the petitioner submits that the Tribunal has taken the income of the petitioner at ₹3,000/-per month which is on the lower side. He submits that as per

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the Second Schedule of the Act, the Tribunal should have taken income at ₹3,200/- per month. He submits that the income may be taken at ₹3,200/- per month. The petitioner, to prove the disability, examined the doctor as PW3, who has issued the disability certificate marked as Exhibit P.10, which discloses that the petitioner has suffered a permanent physical disability fracture of the skull bone to the extent of a 10%, 30% permanent physical disability to the left shoulder and 35% permanent physical disability to the left lower limb. Admittedly, PW3 is not the treated doctor. The Tribunal could have taken one-third of the disability as assessed by PW3. The disability assessed by the Tribunal at 10% is on the lower side. This Court reassesses the disability of the petitioner at 25%. Considering the evidence of PW3 and the medical records, this Court takes the notional income at ₹3,200 per month. The petitioner was about 38 years old as of the date of the accident, and the multiplier applicable to the age group of the petitioner is ‘15’. Thus, considering the nature of injuries and the evidence of the doctor PW3,

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this Court reassesses the compensation under the

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following heads.

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Sl. No.	Heads	Compensatio n awarded by the Tribunal Rs.	Compensation re-assessed by this Court Rs.
1	Painand suffering	5,000/-	5,000/-
2	Medicalexpenses	15,000/-	15,000/-
3	Loss of earning capacity (3,200x12x15x25%)	54,000/-	1,44,000/-
4	Loss of income during laid up period (3,200x3)	-	9,600/-
	TOTAL	74,000/-	1,73,600/-
	Enhanced compensation is 99,600/-(1,73,600– 74,000)

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Thus, the petitioner is entitled to total compensation of ₹ 1,73,600/- i.e., to an enhanced compensation of ₹99,600/- with interest at the rate of 9% per annum from the date of petition till realisation.

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In view of the above discussion, I proceed to pass the following:

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ORDER

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i. The Appeal in MFA No. 20407/2012 filed by the insurance company is dismissed.

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ii. The cross objections in MFA Crob. No 874/2012 filed by the petitioner is allowed.

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iii. The judgment and award passed by the Tribunal is modified. The petitioner is entitled to total compensation of ₹1,73,600/i.e, to an enhanced compensation of ₹99,600/- with interest at the rate of 9% per annum from the date of petition till realization.

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