M/S. BHARATHI AXA GENERAL INSURANCE COMPANY LTD vs T.V. RAJANNA @ RAJU @ RAJAPPA

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016





IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 29 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE RAVI V HOSMANI

MISCELLANEOUS FIRST APPEAL NO.4757 OF 2016(MV-I)

C/W

MISCELLANEOUS FIRST APPEAL NO.395 OF 2016(MV-I)

IN MFA No. 4757/2016
BETWEEN:


SRI T V RAJANNA @C RAJU
@ RAJAPPA
S/O VENKATASWAMY,
AGED ABOUT 38 YEARS,
R/A THARABAHALLI VILLAGE,
MALUR TALUK,
KOLAR DISTRICT - 563 130.

…APPELLANT






[BY SRI GOPAL KRISHNA N., ADVOCATE (PH)]

AND:

SIGN
1. SRI JITENDRA YADAV
@ JITENDRA KUMAR YADAV
S/O MOHAN YADAV,
MAJOR IN AGE
TH
R/A NO.10, 15 CROSS,
BANASHANKARI LAYOUT
BHATTARAHALLI,
VIRGO NAGAR POST,
BANGALORE - 560 049.

2. BHARATHI AXA GENERAL
INSURANCE CO. LTD.,
ST
1 FLOOR, FERMS ICON,
SURYA NO.28,
DODDA NEKKUNDI,

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



K R PURAM, HOBLI,
BANGALORE - 560 037,
REP BY ITS MANAGER.

…RESPONDENTS
[BY SRI B PRADEEP, ADVOCATE FOR R2 (PH);
V/O DATED 09.02.2017 NOTICE TO R1 IS D/W]
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 20.08.2015 PASSED IN MVC
NO.6703/2013 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE, & XXVII ACMM, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

IN MFA NO. 395/2016
BETWEEN:
M/s. BHARATHI AXA GENERAL INSURANCE
COMPANY LTD.,
ST
1 FLOOR, FERNS ICON,
SURVEY NO.28,
DODDA NEKKUNDI VILLAGE,
K.R PURAN HOBLI,
BENGALURU - 560 037,
REP BY ITS MANAGER.

...APPELLANT
[BY SRI B.PRADEEP, ADVOCATE (PH)]
AND:
1. T.V. RAJANNA @ RAJU @ RAJAPPA
S/O VENKATASWAMY,
NOW AGED ABOUT 37 YEARS,
R/AT THARABAHALLI VILLAGE,
MALUR TALUK,
KOLAR DISTRICT 563101.

2. SRI JITENDRA YADAV

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



@ JITENDRA KUMAR YADAV,
S/O MOHAN YADAV,
MAJOR BY AGE
TH
R/AT NO.10, 15 CROSS,
BANASHANKARI LAYOUT,
BHATTARAHALLI,
VIRGO NAGAR POST,
BANGALORE - 560 049.

...RESPONDENTS
[BY SRI N.GOPALA KRISHNA, ADVOCATE FOR R1 (PH);
NOTICE TO R2 - SERVED AND UNREPRESENTED]
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED20.08.2015 PASSED IN
MVC NO.6703/2013 ON THE FILE OF THE I ADDITIONAL
SMALL CAUSES JUDGE AND XXVIII ACMM, MACT,
BANGALORE, AWARDING COMPENSATION OF
RS.4,25,750/- WITH INTEREST @ 6% P.A FROM THE DATE
OF PETITION TILL REALIZATION.

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

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

ORAL JUDGMENT

Challenging judgment and award dated 20.08.2015
passed by I Additional Small Causes Judge and XXVIII ACMM,
MACT, Bangalore, in MVC no.6703/2013, these appeals are
filed. While MFA 395/2016 is filed by insurer challenging finding
of Tribunal on liability, MFA 4757/2016 is filed by claimant
seeking enhancement of compensation.

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016




2. Brief facts leading to these appeals as per claimant
were that at 4 am on 11.10.2013, when claimant was driving
tempo no. KA-07-A-1132 from Bengaluru towards Chennai, at
Yalachahalli gate, driver of trailer lorry no.NL-02-K-5354 had
parked it in middle of road without any indicators. In accident
claimant sustained grievous injuries and despite treatment at
RL Jalappa Hospital, Kolar district, he did not recover fully and
sustained permanent physical disability. Claiming compensation
for same, a claim petition was filed under Section 166 of Motor
Vehicle Act, 1988 ( MV Act ) against owner/insurer of trialer
lorry.


3. Despite service of notice owner did not appear and
was placed ex-parte. Only insurer opposed claim petition on all
grounds.


4. Based on pleadings, Tribunal framed issues and
recorded evidence.

5. To establish contentions, claimant along with
Dr.Imran Hussain deposed as PWs.1 and 2 and got marked
Exs.P1 to P16. Insurer examined its official as RW.1 and got
marked Exs.R1 to R9.

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016




6. On consideration, Tribunal held accident had
occurred due to negligence of trailer lorry, claimant had
sustained permanent physical disability and loss of earning
capacity and was entitled for compensation of Rs.4,25,750/-
with interest at 6% from insurer. Aggrieved thereby appeals
were filed.


7. Sri B Pradeep, learned counsel for appellant in MFA
395/2016 submitted that appeal was by insurer challenging
finding of Tribunal on liability. It was submitted that owner of
offending vehicle had obtained insurance policy paying
premium by way of cheque, which on presentation had
returned dishonored. It was submitted that Section 64-VB(4) of
Insurance Act would provide that on dishonor of premium
cheque, contract of insurance would stand void ab initio .
Besides same, insurer had issued notice of cancellation of policy
to insured as well as sent intimation to jurisdictional RTO and
produced same as Exs.R1 to R9. Without proper appreciation of
said aspect, Tribunal had erroneously fastened liability on
insurer. On said ground sought for allowing appeal.

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016




8. On other hand, Sri N Gopal Krishna, learned counsel
for claimant while opposing insurer's appeal by relying on
decision of Hon'ble Supreme Court in United India Insurance
Co. Ltd., v. Laxmamma and Ors. reported in (2012) 5 SCC
234 submitted that unless insurer had not only established
issuance of notice of cancellation of insurance policy, but also
due service of said notice on insured, insurer would continue to
be liable to pay compensation to third party claimants. It was
submitted that said ratio would squarely apply to instant case
as insurer had merely produced notices of cancellation of policy
and receipt of dispatch of notice, but failed to produce
acknowledgement of service of said notices. Therefore, Tribunal
was justified in fastening liability on insurer. On said ground
sought for dismissal of appeal.


9. On quantum it was submitted that as on date of
accident claimant was 32 years of age, working as driver of a
heavy goods vehicle, was stated to be earning Rs.15,000/- per
month. Tribunal however erroneously considered monthly
income notionally at only Rs.8,000/- and awarded inadequate
compensation. Apart from above, it was submitted that

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



compensation awarded towards food and incidental expenses,
loss of income during laid up period, loss of amenities, pain and
suffering as well as future medical expenses was grossly
inadequate and sought for enhancement. It was submitted that
Tribunal had also erred in not adding future prospects while
assessing compensation towards future loss of income. On said
ground sought for enhancement.


10. Heard learned counsel, perused impugned award
and record.


11. From above and since insurer as well as claimant
are in appeal, points that would arise for consideration are:
i. Whether Tribunal was justified in
fastening liability on insurer?

ii. Whether claimant is entitled for
enhancement of compensation as
prayed?


Point no.1:


12. Sole ground for challenge of finding of Tribunal on
liability is that cheque issued to cover insurance premium had
returned dishonored and owner had failed to pay premium
amount within time even after issuance of dishonor notice as
well as failed to respond to cancellation of policy notice. As

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



rightly pointed out by learned counsel for claimant, insurer
seeks to substantiate its contention by relying upon Exs.R1 to
R9 which are insurance premium cheque, dishonor intimation,
acknowledgement notice of cancellation of policy sent to
insured as well as marking copy to jurisdictional RTO and
dispatch ledger extracts and correspondence with department
of posts. A careful perusal of said documents however would
show that though notice of cancellation of policy on account of
dishonor of premium paid were stated to have been issued. But
there is no material to establish due service of notice on
insured. In absence of same, ratio in Lakshmamma's case
(supra) would come into play. While passing impugned award
Tribunal also had referred to said decision. Therefore, no
exception can be taken to finding of Tribunal insofar as holding
insurer liable to pay compensation to claimant. At same time
however it is seen that in Lakshmamma's case Hon'ble
Supreme Court has made following observation:
"However, insurer shall be at liberty to
prosecute its remedy to recover
amount paid to claimants from
insured."

Therefore, point no.1 is answered in affirmative to said extent.

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



Point no.2:

13. Though claimant stated that he was 32 years of
age, working as driver of heavy goods vehicle and earning
Rs.15,000/-, same was not substantiated with any material. In
absence Tribunal has rightly resorted to assess it notionally.
But notional income prescribed for year 2013 is Rs.8,000/-.
Considering fact that claimant in instant case is a driver of
heavy goods vehicle and as noted by Tribunal Hon'ble Supreme
Court in Kala Devi and Ors. v. Bhagwan Das Chauhan and
Ors. reported in 2014 ACJ 2875 had considered income of
driver of heavy goods vehicle at Rs.9,000/- and as claimant in
instant case is holding driving license for heavy goods vehicle,
Tribunal was not justified in taking notional income at
Rs.8,000/-. Monthly income has to be taken at Rs.9,000/- as
per Kala Devi's case (supra). Claimant has sustained
segmental fracture of shaft of right femur apart from fracture of
tibia and fibula of right leg. He has also sustained fracture of
left fibula. There is amputation of distal phalanx of right foot.
PW.2 who examined claimant stated that claimant sustained
physical disability of 35% to right lower limb and 25% to whole

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



body. Considering nature of disability sustained, assessment of
functional disability by Tribunal at 25% cannot be stated be
grossly inadequate to warrant interference. Same is sustained.
As per decision in Erudhaya Priya v. State Express
Transport Corporation Ltd., reported in (2020) SCC OnLine
SC 601 Tribunal ought to have added future prospects to
monthly income. Since claimant was below 40 years and self
employed, future prospects at 40% has to be added to monthly
income. Multiplier corresponding to age of claimant would be
'16'. Thus, compensation towards future loss of income would
be:
(Rs.9,000/- + 40%) = Rs.12,600/- x 25% x 12 x 16 =
Rs.6,04,800/- .


14. Tribunal has awarded Rs.60,750/- in complete
reimbursement of medical bills produced, leaving no scope for
enhancement. For inpatient treatment period of 32 days,
Tribunal has awarded Rs.30,000/- towards food and other
incidental expenses, which would appear just and proper, no
enhancement. Tribunal has awarded Rs.25,000/- towards loss
of income during laid up period. Since claimant sustained

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



multiple fractures of right lower limb apart from left lower limb,
period of layoff is considered at four months. Consequently,
claimant would be entitled to Rs.36,000/- towards loss of
income during period of treatment. Considering fact that
claimant has sustained permanent physical disability of 25% to
whole body, award of Rs.20,000/- only towards loss of
amenities would be grossly inadequate and found fit to be
enhanced to Rs.50,000/- . Considering multiple fractures to
structural bones award of only Rs.30,000/- towards pain and
suffering would be grossly inadequate and stands enhanced to
Rs.1,25,000/- . Tribunal has awarded Rs.20,000/- towards
future medical expenses which is just and proper, no
enhancement. Thus, claimant would be entitled to total re-
assessed compensation at Rs.9,26,560/- . Point no.2 is
answered partly in affirmative as above.


15. Consequently, following:
ORDER

i. MFA 395/2016 as well as MFA 4757/2016
are allowed in part .



ii. Judgment and award dated 20.08.2015
passed by I Additional Small Causes

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HC-KAR
NC: 2026:KHC:60626
MFA No. 4757 of 2016
C/W MFA No. 395 of 2016


CNR: KAHC010532632016



Judge and XXVIII ACMM, MACT,
Bangalore, in MVC no.6703/2013, stands
modified.


iii. Claimant is held entitled for reassessed
compensation at Rs.9,26,560/- with
interest at 6% p.a. excluding 228 days
being period of delay.


iv. It is clarified that insurer would be liable
to pay said compensation to claimant in
first place with liberty to recover it from
insured as per observations in
Lakshmamma's case (supra).


v. Amount in deposit in insurer's appeal is
ordered to be transmitted to Tribunal for
payment.


vi. Balance to be deposited within six weeks.


vii. On deposit entire compensation with
interest is ordered to be released in
favour of claimant.

Sd/-
(RAVI V HOSMANI)
JUDGE


YKL
List No.: 1 Sl No.: 29