Mudlappa Vs Sunil. R

NC: 2025:KHC:9365 MFA No. 4639 of 2023 C/W MFA No. 2459 of 2019 MFA No. 3031 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3^RD DAY OF MARCH, 2025 BEFORE

THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.4639 OF 2023 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.2459 OF 2019 (MV-I) MISCELLANEOUS FIRST APPEAL NO.3031 OF 2024 (MV-I)

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IN MFA.No.4639/2023:

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BETWEEN:

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MUDLAPPA S/O.SANNERAPPA AGED ABOUT 46 YEARS AGRICULTURIST R/AT RUDARAKUNTE VILLAGE

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NOW R/AT JANATHA COLONY CHALLAKERE TOWN CHITRADURGA DISTRICT-577 598

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…APPELLANT

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(BY SRI SHIVAKUMARAPPA T.C., ADVOCATE)

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AND:

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Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH

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Location: HIGH COURT OF KARNATAKA

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SUNIL R. S/O.ANGASWAMY MAJOR OWNER OF THE MOTORCYCLE NO.KA-16-L-3778 R/AT HULIKUNTE VILLAGE CHALLAKERE TALUK CHITRADURGA DISTRICT-577 522

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THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE VIJAYASHREE B.D.ROAD CHITRADURGA-577 501

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…RESPONDENTS

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(BY SRI HARISH N.R., ADVOCATE FOR R-1; SMT.H.C.LOKESHWARI FOR SRI RAVISHANKAR A., ADVOCATES FOR R-2)

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NC: 2025:KHC:9365 MFA No. 4639 of 2023 C/W MFA No. 2459 of 2019 MFA No. 3031 of 2024

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED IN MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHALLAKERE AND ENHANCE THE COMPENSATION.

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IN MFA.NO.2459/2019:

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BETWEEN:

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THE BRANCH MANAGER THE NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE VIJAYASHREE B.D.ROAD CHITRADURGA POLICY NO.680502231150200007787 VALID FROM 20/01/16 TO 19/01/2017

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REP. BY THE MANAGER NEW INDIA ASSURANCE CO.LTD. MOTOR TP CLAIMS HUB 2^ND FLOOR, MAHALAKSHMI CHAMBERS 9/2, M.G.ROAD, BENGALURU-560 002

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...APPELLANT

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(BY SMT.H.C.LOKESHWARI FOR SRI RAVISHANKAR A., ADVOCATES)

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AND:

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SRI MUDLAPPA S/O.SANNEERAPPA AGED ABOUT 42 YEARS AGRICULTURIST R/AT RUDARAKUNTE VILLAGE

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NOW R/AT JANATHA COLONY CHALLAKERE TOWN-583 131

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SRI SUNIL R. S/O.RANGASWAMY MAJOR R/AT HULIKUNTE VILLAGE CHALLAKERE TALUK DAVANAGERE DISTRICT-583 125 (OWNER OF MOTOR CYCLE BEARING REG.NO.KA-16-L-3778)

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...RESPONDENTS

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(BY SRI SHIVAKUMARAPPA T.C., ADVOCATE FOR R-1; SRI HARISH N.R., ADVOCATE FOR R-2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED IN MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND ADDITIONAL MACT, CHALLAKERE.

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IN MFA.NO.3031/2024:

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BETWEEN:

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SRI SUNIL R. S/O.RANGASWAMY AGED ABOUT 29 YEARS OWNER OF MOTORCYCLE BEARING REGN. NO.KA-16-L-3778 HULIKUNTE VILLAGE CHALLAKERE TALUK-577 522

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...APPELLANT

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(BY SRI HARISH N.R., ADVOCATE)

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AND:

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THE BRANCH MANAGER NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE VIJAYASHREE B.D.ROAD CHITRADURGA-577 501 POLICY NO.680502231150200007787 VALID FROM 20/01/2016 TO 19/01/2017

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SRI MUDLAPPA S/O.SANNERAPPA AGED ABOUT 46 YEARS AGRICULTURIST RUDARAKUNTE VILLAGE NOW R/AT JANTHA COLONY CHALLAKERE TOWN-577 536

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...RESPONDENTS

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(BY SMT.H.C.LOKESHWARI FOR SRI RAVISHANKAR A., ADVOCATES FOR R-1;) SRI SHIVAKUMARAPPA T.C., ADVOCATE FOR R-2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO SET-ASIDE THE JUDGMENT AND AWARD DATED 08.01.2019 PASSED IN MVC.NO.1782/2017 BY THE SENIOR CIVIL JUDGE AND

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ADDITIONAL MACT, CHALLAKERE, INSOFAR AS SADDLING THE LIABILITY OF PAYMENT OF 25% COMPENSATION ON THE APPELLANT.

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THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR

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ORAL JUDGMENT

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These appeals are filed challenging the judgment and

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award dated 08.01.2019 passed in MVC.No.178/2017 by the Senior Civil Judge and Additional MACT, Challakere (for short, 'the tribunal').

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The appeal preferred by the claimant is for

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enhancement of compensation, being dissatisfied with the inadequate compensation awarded by the tribunal; the appeal preferred by the Insurance Company is for setting aside the impugned judgment and award, whereby the tribunal fixed 75% of liability on the Insurance Company and fastened the entire liability on the rider-cum-owner of

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the offending vehicle and the appeal preferred by the owner of the offending vehicle is for absolving him from fixing of 25% liability.

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Parties to the appeals shall be referred to as per their status before the tribunal.

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Brief facts of the case is as under:

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On 16.10.2016, the claimant, Mudlappa was

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travelling as a pillion rider on a motor cycle bearing registration No.KA-16-ED-6571 along with the rider namely, Girisha and another person namely, Dayananda. When they were proceeding in between JadekunteHulikunte Village, Challakere Taluk, the owner-cum-rider of the motor cycle bearing registration No.KA-16-L-3778 came from Jadekunte side towards Hulikunte Village in a rash and negligent manner with high speed and dashed against the motor cycle of the claimant, who was a pillion rider. Due to the said impact, the claimant fell down and sustained injuries. He was immediately taken to Government Hospital, Challakere, where he took first aid treatment and then, he was taken to City Central Hospital, Davanagere, where he was treated as an inpatient. He

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suffered trochanteric fracture to right femur and other injuries to his body.

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4.1 Due to the injuries sustained in the Road Traffic Accident and the expenditure meted out by the claimant for the treatment, he filed a claim petition seeking compensation against the respondents i.e. the owner-cumrider and Insurance Company of the offending vehicle.

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4.2 The respondents i.e. the owner-cum-rider and

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the Insurance Company of the offending vehicle appeared and filed their written statement. Respondent No.1 stated that the rider of the motor cycle was having a valid and effective Driving Licence and that if any compensation amount to be paid by him, the same will have to be indemnified by respondent No.2-Insurance Company, whereas respondent No.2-Insurance Company took up a

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plea that the accident occurred due to the negligent riding

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of the rider of the motor cycle i.e. the claimant's motor cycle and therefore, there was a contributory negligence on the part of the rider of the motor cycle, in which the

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claimant was a pillion rider. It also took up a plea that the rider of the motor cycle, in which the claimant was a pillion rider, was not having valid and effective Driving Licence as on the date of occurrence of accident and therefore, the Insurance Company is not liable to make good the compensation for fault and deliberate breach of terms and conditions of the policy. Hence, sought for dismissal of the claim petition.

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4.3 On the basis of the pleadings, the tribunal framed relevant issues for consideration.

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4.4 In order to establish the case and to prove the issues framed, the claimant got examined himself as PW.1

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and the Doctor as CW.1 and got marked documents as Exs.P1 to P112, whereas the respondents got examined two witnesses as RWs.1 and 2 and got marked document as Exs.R1 to 3.

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4.5 On the basis of pleadings and evidence on record

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and on hearing the learned counsel for both parties, the

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tribunal awarded total compensation of Rs.3,39,400/along with interest 9% p.a. from the date of petition till realisation and fastened the liability on both respondent Nos.1 and 2 and further directed respondent No.1 to deposit 25% and respondent No.2 to deposit 75% of the compensation amount.

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4.6 Aggrieved by the judgment and award passed by the tribunal, the claimant, the Insurance Company and the owner-cum-rider of the offending vehicle are before this Court challenging the same on several grounds urged in their respective appeals.

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It is the vehement contention of learned counsel

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for claimant that the judgment and award passed by the tribunal is erroneous as the tribunal has not taken into consideration the material evidence, both oral and documentary. He further contends that the tribunal has not taken any income for awarding compensation towards loss of future earning capacity, so also, on the other heads, the tribunal has committed a gross error in not

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awarding just and reasonable compensation. On these

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grounds, he seeks enhancement of compensation.

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Learned counsel for Insurance Company

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vehemently contends that the tribunal has erred in fixing the liability of only 25% as against the owner-cum-rider of the offending vehicle instead of fixing the entire liability on him, which is not sustainable for the reason that the FIR and chargesheet have been laid against the owner-cumrider of the offending vehicle. Admittedly, he was not having a valid and effective Driving Licence as on the date of occurrence of accident. Therefore, the entire liability requires to be fastened on the owner-cum-rider of the offending vehicle. It is further contended that out of the documents produced at Exs.P1 to P112, the Police records clearly depict filing of FIR, chargehseet and complaint are against the owner-cum-rider of the offending vehicle, which has not been controverted or challenged by the owner-cum-rider of the offending vehicle in any proceedings before the Court and no proceedings are

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produced before the Court to disbelieve the same. Under the circumstance, when the policy being in force and there is fundamental breach of the same, it is a pre condition for the Insurance Company to pay the compensation. However, if there is violation of any terms and conditions of the policy, it would be liability of the insured to make good the compensation rather than the Insurance Company.

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Learned counsel for owner-cum-rider of the offending vehicle vehemently contends that the tribunal has committed an error in fixing the liability as against the owner-cum-rider of the offending vehicle and the Insurance Company, whereas the tribunal has given a total goby discrediting the materials on record including the chargesheet which clearly depict that the claimant, was the pillion rider of the motor cycle, which was involved in the accident; the rider was triple riding the motor cycle,

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so also, the rider namely, Girisha was not possessing a valid and effective Driving Licence as on the date of

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occurrence of accident and thereby the tribunal ought to have fastened and imputed the contributory negligence as against the rider of the motor cycle, which was involved in the accident in which the claimant was a pillion rider. It is also contended that these aspects are forthcoming in the Police records so also he has stated the same in his evidence, which is not controverted by the claimant. Therefore, he contends that the contributory negligence and liability ought to have been fastened on the rider of the motor cycle, in which the claimant was a pillion rider.

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On these grounds, he seeks to set-aside the impugned judgment and award and absolve him of all liabilities.

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I have heard learned counsels for claimant, Insurance Company and owner-cum-rider of the offending vehicle.

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The fact that on 16.10.2016, the claimant, who was a pillion rider on the motor cycle ridden by one Girisha met with an accident with another motor cycle ridden by the owner-cum-rider of the offending vehicle, has been

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NC: 2025:KHC:9365 MFA No. 4639 of 2023 C/W MFA No. 2459 of 2019 MFA No. 3031 of 2024

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proved and established by production of documents as per Exs.P1 to P112 including the medical records, which establishes the injuries sustained by the claimant. It is also clearly apparent and evidenced by production of Police records namely, FIR, complaint, spot mahazar, IMV report and chargesheet that a criminal case has been registered against the owner-cum-rider of the offending vehicle, which has not been questioned or challenged by him. Therefore, negligence is rightly attributed as against the owner-cum-rider of the offending vehicle.

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Though it is seen that the owner-cum-rider of the offending vehicle has pleaded that he also sustained injuries in the road traffic accident, he has not made any effort to file a complaint or private complaint against the vehicle involved in the accident, in which the claimant was a pillion rider or against the rider namely, Girisha in any Court of law apart from merely stating that the negligence is to be attributed against the claimant and the rider of the motor cycle. Therefore, in the absence of any such

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material before the Court, the tribunal and this Court, is left with material that is available on record, to decide the compensation to be awarded.

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Now coming to the aspect of age, avocation, income, multiplier and the compensation to be awarded, though the claimant has stated different age at several place, but the age is shown as 46 years in the wound certificate. Therefore, the age of the claimant is taken as 46 years. Hence, the appropriate multiplier applicable would be '13' in the present case. The claimant has got examined by the Doctor-CW.1, who was opined that the claimant has suffered disability of 55% to the right lower limb. However, the Doctor has not stated the whole body disability. Therefore, this Court deems it appropriate to assess the whole body disability by dividing 55% from 1/3^rd , which would come to 18%. Hence, the whole body disability is assessed at 18%. There are no documents produced by the claimant to show his income. However, in the absence of any proof of income, this Court will have to

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rely upon the notional income chart of the Legal Services Authority, which prescribes the income of Rs.9,500/- for the accident of the year 2016.

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Under the circumstances, the claimant is entitled

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to a sum of Rs.2,66,760/- (Rs.9,500/- x 12 x 13 x 18%) towards loss of earning capacity due to permanent disability.

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The tribunal awarded a sum of Rs.2,29,400/-

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towards medical expenses, which is on the actual bills produced by the claimant, as the claimant was inpatient for a period of 16 days in the Hospital and he has incurred financial expenditure. Therefore, the same does not call for interference and is retained.

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The tribunal awarded a sum of Rs.1,00,000/towards pain and suffering and inconvenience caused to him and Rs.10,000/towards attendant charges. However, taking into consideration that the claimant sustained two fractures and was inpatient for 16 days, a sum of Rs.50,000/- is awarded towards pain and

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suffering, Rs.25,000/- is awarded towards loss of amenities and Rs.10,000/- is awarded towards food, conveyance, attendant and nourishment charges.

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In view of this Court taking the income of Rs.9,500/- per month and considering the magnitude of injuries sustained by the claimant, atleast three months is required to recuperate and get back to normal day to day activities, this Court deems it appropriate to award Rs.28,500/- (Rs.9,500/- x 3) towards loss of income during laid up period.

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In view of the above, the claimant would be entitled to a total compensation of Rs.6,09,660/- as

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against Rs.3,39,400/- as mentioned in the table below:

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Heads	Amount in Rs.
Loss of earning capacity due to permanent disability	2,66,760-00
Medical expenses	2,29,400-00
Pain and suffering	50,000-00
Loss of amenities	25,000-00
Food, conveyance, attendant and	10,000-00
nourishment charges
Loss of income duringlaid-up period	28,500-00
TOTAL	6,09,660-00

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The tribunal though has stated at para-30 in its judgment that the claimant would be entitled to the compensation amount along with interest @ 9% p.a., nothing is stated with regard to the same in the operative portion of the order. However, I am in agreement with learned counsel for Insurance Company that the interest component is on the higher side. Considering the facts and circumstances of the case, the interest component @ 6% p.a. would be reasonable. Hence, the interest is awarded @ 6% p.a.

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Coming to the aspect of fixing the liability, apparently, it is seen that owner-cum-rider of the offending vehicle was not possessing a valid and effective Driving Licence as on the date of occurrence of accident. The FIR and chargesheet are filed against him. Therefore, despite policy being in force, in view of violation of terms and conditions of the policy, the liability is fixed as against the owner-cum-rider of the offending vehicle in its entirety. Under the circumstance, this Court is not inclined

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to accept the submission of learned counsel for ownercum-rider of the offending vehicle regarding contributory negligence of the rider of the vehicle, in which the claimant was travelling as pillion rider and the same is negatived.

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In the present case on hand, the owner-cum-

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rider of the offending vehicle has participated in the proceedings before the tribunal. However, he is before this Court challenging the judgment and award of the tribunal. Therefore, he cannot escape from his liability and seek for absolving him of the liability on the ground of pay and recovery. The principle of pay and recovery enunciated by the Hon'ble Apex Court by way of precedent is to see that

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the benefit is given to the claimant in the absence of the owner-cum-rider of the offending vehicle and it is not for the benefit of the owner of the offending vehicle to take advantage of his own wrong, when he is represented and present before the Court. Under the circumstance, since the owner-cum-rider of the offending is before this Court

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in an appeal, he is saddled with the entire liability and he

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shall pay the compensation.

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Accordingly, I pass the following:

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ORDER

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i) The appeals are disposed of;

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ii) The judgment and award dated * 08.01.2019 passed in * MVC.No.178/2017 by * Senior Civil Judge & Additional MACT, Challakere, is modified;

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iii) The claimant is entitled to a total compensation of Rs.6,09,660/- as against Rs.3,39,400/-;

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iv) The interest component is reduced to 6% p.a. as against 9% p.a. awarded by the tribunal from the date of petition till its realisation;

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v) The liability is fixed as against the owner-cumrider of the offending vehicle, who shall pay the entire compensation amount within a period of four weeks from the date of receipt of a copy of this order;

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Corrected vide Chambers Order dated 05.08.2025

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vi) The amount deposited by the Insurance Company shall be returned/released in favour of the Insurance Company forthwith;

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vii) The compensation amount shall be deposited in favour of the claimant by the owner of the offending vehicle within four weeks from the date of receipt of a copy of this order;

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viii) The compensation amount shall be released in favour of the claimant, on deposit, as per the terms of the tribunal by Electronic transfer to the claimant upon furnishing the required bank details/upon proper identification;

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ix) All other terms and conditions stipulated by the tribunal with regard to deposit and release of the compensation amount shall stand intact;

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x) Registry is directed to transmit the original records to the jurisdictional tribunal forthwith.

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In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and the same pale into insignificance.

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Sd/(PRADEEP SINGH YERUR) JUDGE

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LB List No.: 1 Sl No.: 57

Mudlappa v. Sunil. R

Case brief

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Mudlappa v. Sunil. R

Case brief

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