ERANAIKA vs RAVINDRA B G

Court
Karnataka High Court

- 1 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017





IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 29 DAY OF SEPTEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE RAVI V HOSMANI

MISCELLANEOUS FIRST APPEAL NO. 6801 OF 2017 (MV-I)

BETWEEN:

ERANAIKA
S/O SOMANAIK,
AGED ABOUT 63 YEARS
R/O 1ST MAIN, 5TH CROSS,
JALINAGAR, DAVANAGERE - 577 002.
…APPELLANT






(BY SRI. SREEHARSHA A.K, ADVOCATE)

AND:

1. RAVINDRA B.G.
S/O GIRIDHARA RAO,
AGED ABOUT 30 YEARS
RIDER CUM OWNER OF MOTOR CYCLE,
BEARING REG.NO.KA 27/V-1065,
R/O NO. 1029/1-2,
SAROJA NILAYA, JALINAGAR,
DAVANAGERE - 577 001.

2. NATIONAL INSURANCE CO. LTD.,
REP. BY ITS DIVISIONAL MANAGER,
DIVISIONAL OFFICE,
MELAGIRI PLAZA,
DENTAL COLLEGE ROAD,
DAVANAGERE - 577 002.




Digitally signed by
ASHWINI MAYAPPA
MAVARAKAR
Location: HIGH
COURT OF
KARNATAKA

- 2 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



3. DEVENDRA
S/O BASAVARAJAPPA,
AGED ABOUT 29 YEARS
RIDER OF MOTOR CYCLE
BEARING REG NO.KA 44/H-6814
R/O HUNASAGATTA VILLAGE,
HONNALI TALUK.

4.
MOHAMMED SADIQULLA
S/O UMAR SAB, MAJOR,
OWNER OF MOTOR CYCLE BEARING
REG NO.KA 44/H-6814
R/O HUNASAGATTA VILLAGE,
HONNALI TALUK.
…RESPONDENTS
(BY SRI. E.R. DIWAKAR, ADVOCATE FOR R2;
VIDE COURT ORDER DATED 21.11.2017, NOTICE TO R1
AND R3 IS DISPENSED WITH;
R4 - NOTICE SERVED AND UNREPRESENTED)

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 02.03.2017 PASSED IN MVC
NO.217/2016 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, & V ADDITIONAL MACT, DAVANAGERE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

- 3 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017




ORAL JUDGMENT
Challenging judgment and award dated 02.03.2017
passed by I Addl. Senior Civil Judge & V Addl. M.A.C.T.,
Davangere, ( Tribunal ) in M.V.C.no.217/2016, this appeal is
filed.

2. Sri A.K.Sreeharsha, learned counsel for appellant
submitted that appeal was by claimant for enhancement of
compensation as well as challenging finding on liability.

3. Brief facts leading to this appeal, as stated, are that
at about 4.00 p.m., on 25.08.2015 when claimant was pillion
rider, on motorcycle no.KA-27/V-1065, proceeding towards
Hanumanahalli, rider of another motorcycle no.KA-44/H-6814
rode it in a rash and negligent manner and it dashed against
claimant's motorcycle. In accident, claimant fell down and
sustained injuries and despite treatment at PHC Sasvehalli
village and later at Chigateri Hospital, Davangere, he did not
recover fully and sustained loss of earning capacity. Claiming
compensation, he filed claim petition against rider-cum-owner

- 4 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



and insurer of his motorcycle as well as rider and owner of
offending motorcycle.

4. Despite service of notice, rider and owners did not
appear and were placed ex parte. Only insurer filed objections
opposing claim petitions on all grounds.

5. Based on pleadings, tribunal framed following
issues:

i. Whether the petitioner proves that on 25.08.2015
at about 4.00 p.m., near Kulagatte Hosalli Cross of
Honalli Taluk when he was proceeding as a pillion
rider with the respondent no.1 motorcycle bearing
reg.no.KA-27/V-1065 the respondents no.1 and 3
being the riders of the motorcycle bearing
reg.no.KA-44/H-6814 and KA-27/V-1065 have
ridden the same in a rash and negligent manner
and caused the accident for which the petitioner
has sustained grievous injuries as alleged in the
claim petition?

ii. Whether the petitioner is entitled for the
compensation as prayed? If so, from whom and
what is the quantum?

iii. What order?

- 5 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017




6. Claimant examined himself as PW.1 and got marked
Exs.P1 to P14. Respondents did not lead any oral evidence, but
got marked copy of insurance policy, with consent, as Ex.R1.

7. On consideration, tribunal held accident had
occurred due to contributory negligence of riders of both
motorcycles, but as claimant had failed to establish disability
and loss of earning capacity by examining Doctor, it awarded
global compensation of Rs.40,000/- with interest at 8% p.a.
and held insurer liable to pay 50% of award amount and
remaining 50% to be recovered from respondents no.3 and 4.
Aggrieved thereby, this appeal is filed.

8. Learned counsel for appellant, at outset, submitted
that award of global compensation instead of under various
heads of compensation, as in a personal injury claim, was not
justified. It was admitted that as on date of accident, claimant
was 62 years of age, working as coolie and earning Rs.5,000/-
per month. He sustained fracture of lower pole of right patella,
and therefore, was entitled for compensation towards pain and
suffering.

- 6 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017




9. It was submitted that claimant took inpatient
treatment for a period of 16 days and produced medical bills for
a sum of Rs.1,238/-. Therefore, claimant was entitled for
compensation towards medical expenses, loss of income during
period of treatment and, food, nourishment and other
incidental expenses. Claimant would also be entitled for
compensation towards loss of amenities.

10. Insofar as liability, it was submitted that since
accident had occurred due to joint negligence of riders of both
motorcycles and claimant was pillion rider, as per Full Bench
decision of this Court in Karnataka State Road Transport
Corporation (KSRTC), represented by its Managing
Director v. Arun @ Aravind and Others reported in ILR
2004 KAR 26, claimant would be entitled to proceed against
either of joint tort-feasors for entire compensation and
restriction imposed thereon by tribunal was not justified. On
said ground sought for allowing appeal.

11. On other hand, Sri E.R.Diwakar, learned counsel for
respondent no.2-insurer would oppose appeal. It was submitted
that in instant case, there was no assertion by claimant that at

- 7 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



time of accident he had cautioned rider of his motorcycle
against rash and negligent driving, therefore, claimant also
ought to be held to have contributed in negligence to accident.

12. Relying on decision of Hon'ble Supreme Court in
T.O. Anthony v. Karvarnan and Others reported in (2008)
3 SCC 748, it was submitted that instant case was a case of
contributory negligence and not composite negligence, that
therefore, apportionment of negligence by tribunal and
restriction on compensation against insurer was justified and on
said ground sought for rejecting challenge on liability.

13. Insofar as quantum of compensation, it was
submitted that fracture of patella would not lead to loss of
earning capacity and global compensation awarded by tribunal
on overall consideration was just and proper. On said ground,
sought for dismissal of appeal.

14. Heard learned counsel and perused impugned
judgment and award and record.

- 8 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017




15. From above, since claimant is challenging finding of
tribunal on liability as well as seeking for enhancement of
compensation, points that arise for consideration are -

i. Whether tribunal was justified in restricting liability
of insurer qua claimant at 50%?

ii. Whether claimant was entitled for enhancement of
compensation?
REASONS
Point no.1 :

16. There is no dispute about occurrence of accident
due to collision between two motorcycles. To establish
actionable negligence, claimant relied on prosecution records,
which implicate riders of both motorcycles involved for causing
accident by rash and negligent riding. Tribunal apportioned
negligence between riders of motorcycles at 50%. Though
learned counsel for respondent-insurer has sought to contend
that failure on part of claimant-pillion rider to caution rider of
his motorcycle to ride it carefully amounted to negligence,
material on record would not support such view. Accident
occurred due to sudden collision of two vehicles and it is not
elicited from claimant that at time of accident, rider of his

- 9 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



motorcycle was riding it in rash and negligent manner and
claimant had acquiesced it. Therefore, instant case cannot be a
case of contributory negligence, but of composite negligence
and as held in Arun's as well as in T.O. Anthony's case
( supra ) itself, claimant would be entitled to proceed against any
of joint tortfeasors for entire compensation. Point no.1 is
answered in negative, and however, it is clarified that in case a
claimant proceeds against any of joint fortfeasors for recovery
of entire compensation, such joint tortfeasors would be entitled
to proceed against other for reimbursement to extent of
apportionment of negligence when need for separate
proceedings.
Point no.2 :

17. It is not in dispute that as on date of accident, in
year 2015, claimant was 62 years of age, working as coolie and
claiming to be earning Rs.5,000/- per month. But income is not
substantiated with any material. In absence, it would require
assessment notionally. Notional income for year 2015 is
Rs.9,000/- and same has to be considered. Claimant sustained
fracture of pole of right patella. Since fracture is to a structural

- 10 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



bone, claimant would be entitled to a compensation of
Rs.40,000/- towards pain and suffering. Claimant has
produced medical bills for a sum of Rs.1,238/-. Therefore, it is
found appropriate to award Rs.2,000/- towards medical
expenses. Claimant's treatment records would indicate that
claimant took inpatient treatment for a period of 16 days,
during which claimant would have spent money towards diet,
attendants, conveyance and other incidental expenses.
Therefore, it is found appropriate to award Rs.10,000/- under
said head. Normally fractures take about three months to heal.
Considering this period has lay off, claimant would be entitled
to Rs.27,000/- (Rs.9,000/- x 3 months) towards loss of
income during laid-up period.

18. Though claimant stated that due to injuries
sustained, he has lost earning capacity or sustained loss of
amenities, he did not examine any Doctor to establish
disability. In absence and taking note of fact that fracture of
patella normally does not lead to loss of earning capacity,
tribunal cannot be held to have erred in not awarding any
compensation towards future loss of income or towards

- 11 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



amenities. Thus, total compensation would be Rs.79,000/- .
Point no.2 is answered partly in affirmative.

19. Consequently, following -
ORDER

i. Appeal is allowed in part , judgment and award dated
02.03.2017 passed by I Addl. Senior Civil Judge & V
Addl. M.A.C.T., Davangere, in M.V.C.no.217/2016 is
modified and claimant is held entitled for re-assessed
compensation of Rs.79,000/- as against Rs.40,000/-
awarded by tribunal with interest at 8% p.a. from date
of claim petition till deposit.

ii. Claimant is held entitled to recover entire
compensation from any of tortfeasors to entire extent
with liberty to insurer to seek for reimbursement from
other tort feasors to extent of apportionment of
negligence at 50% against rider of each of vehicle.

iii. It is further observed that in case insurer has
deposited award amount and claimant has withdrawn

- 12 -
HC-KAR
NC: 2026:KHC:54010
MFA No. 6801 of 2017


CNR: KAHC010405992017



same, claimant would not be entitled for interest on
said amount from date of award till date of withdrawal
and said amount would require to be deducted from
total compensation.

iv. On deposit, entire compensation along with interest is
ordered to be released in favour of claimant by
electronic means.
SD/-
(RAVI V HOSMANI)
JUDGE


HNM
List No.: 1 Sl No.: 3