SHRI. AKHANBASHA vs SHRI RAFIK
- Court
- Karnataka High Court
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HC-KAR
NC: 2026:KHC-D:16999
MFA No. 100803 of 2022
C/W MFA No. 101438 of 2021
CNR: KAHC020018002022
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
TH
DATED THIS THE 13 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MRS JUSTICE K.G.SHANTHI
MISCELLANEOUS FIRST APPEAL NO. 100803 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 101438 OF 2021 (MV-I)
IN MFA No. 100803/2022
BETWEEN:
SHRI. AKHANBASHA
S/O. RAJAKSAB DESAI,
AGE: 39 YEARS,
OCC: AGRICULTURE AND COOLIE,
NOW NIL,
R/O: BAILWAD, PIN. 591102
TQ: BAILHONGAL,
DIST: BELAGAVI.
…APPELLANT
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
1. SHRI. RAFIK
S/O. IBRAHIM MULLANAVAR
AGE: 38 YEARS,
OCC: SHAMIYAN BUSINESS,
R/O: #396A STREET,
MADANABHAVI VILLAGE,
TQ & DIST: DHARWAD
PIN. 580001.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD.,
CLUB ROAD
BELAGAVI-590001
TQ & DIST. BELAGAVI.
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3. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE COMPANY LTD,
CLUB ROAD, BELAGAVI - 590001
TQ & DIST. BELAGAVI.
…RESPONDENTS
(NOTICE TO R1 IS DISPENSED WITH;
BY SRI. S.V.YAJI, ADVOCATE FOR R2 AND R3)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE
JUDGMENT PASSED BY SENIOR CIVIL JUDGE AND AMACT,
BAILHONGAL, IN MVC NO.1283/2016 DATED 01.09.2021 AND FIX
ENTIRE NEGLIGENCE ON RESPONDENT 1 AND 2, IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA NO. 101438/2021
BETWEEN:
THE DIVISIONAL MANAGER
THE NEW INDIA ASSURANCE COMPANY LTD.
CLUB ROAD,
BELAGAVI-590001,
REP. BY, DULY CONSTITUTED ATTORNEY
...APPELLANT
(BY SRI. S. V. YAJI, ADVOCATE)
AND:
1. AKHANBASHA S/O. RAJAKSAB DESAI
AGE: 38 YEARS,
OCC: AGRICULTURE,
R/O. BAILWAD,
TALUK: BAILHONGAL,
DIST: BELAGAVI,
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MFA No. 100803 of 2022
C/W MFA No. 101438 of 2021
CNR: KAHC020018002022
PIN: 591102.
2. RAFIK S/O IBRAHIM MULLANNAVAR,
AGE: 37 YEARS,
OCC: SHAMIYAN BUSINESS,
R/O: 396A STREET,
MADANBHAVI VILLAGE,
TALUK AND DIST. DHARWAD,
PIN: 581105.
...RESPONDENTS
(BY SRI. HANAMANT R. LATUR, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT,
1988, PRAYING TO SET A SIDE THE JUDGMENT AND AWARD
DATED 01.09.2021 PASSED BY THE SENIOR CIVIL JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL-BAILHONGAL
IN MVC NO.1283/2016 SADDLING THE LIABILITY TO AN EXTENT
OF 50% ON THIS APPELLANT. CONSEQUENTLY, DISMISS THE
PETITION AGAINST THE APPELLANT OR TO MODIFY THE AWARD
AGAINST THE APPELLANT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
17.09.2026 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MRS. JUSTICE K.G.SHANTHI
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MFA No. 100803 of 2022
C/W MFA No. 101438 of 2021
CNR: KAHC020018002022
CAV JUDGMENT
Aggrieved by the common judgment and award dated
01.09.2021 passed by the Senior Civil Judge and Additional
1
MACT, Bailhongal , the petitioner before the Tribunal filed an
appeal in MFA No.100803/2022 seeking enhancement of
compensation and the respondent No.2/Insurance Company
before the Tribunal filed an appeal in MFA No.101438/2021
challenging the impugned judgment and award.
2. Parties are hereinafter referred to as per their ranks
before the Tribunal for the sake of convenience.
3. Brief facts of the case are that on 22-05-2014 at
about 6.00 p.m., the petitioner and Charanaraj Barki were
proceeding towards Kittur from Tadakod village on a Bajaj
2
Pulsar motorcycle bearing registration No.KA-22/EN-8472 . The
said Charanaraj was the rider and the petitioner was the pillion
rider. When the said motorcycle came near Kempageri Lake, on
Tadakod-Kittur road, the rider of the Bajaj Discover motorcycle
3
bearing registration No.KA-22/TR-4785 came from Kittur side
1
For short, ‘the Tribunal’
2
For short, ‘the motorcycle’
3
For short, ‘the offending vehicle’
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in a high speed, rash and negligent manner so as to endanger
human life and lost his control over the vehicle and collided
with the motorcycle of the petitioner and caused an accident.
Due to said impact, the petitioner sustained grievous injuries
and was shifted to the hospital.
4. The petitioner contended that, prior to the accident,
he was hale and healthy and earning Rs.12,000/- per month by
doing agriculture coolie work and maintaining his family. But
due to the accidental injuries, he become permanently disabled
and unable to do any work as earlier and lost his earning
capacity. Further, the petitioner has been put into mental
agony and financial difficulty. The petitioner has spent huge
amount towards medical expenses. Accordingly, the petitioner
filed petition claiming compensation before the Tribunal.
5. After filing of the petition, notices have been issued
to the respondents. The respondents appeared and contested
the case. Respondents No.2 and 3 have filed objections.
6. Respondent No.2/Insurer of the offending vehicle
specifically contended that, the petition is bad for non joinder of
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necessary parties for non inclusion of the owner and insurer of
the motorcycle and also for non compliance of Sections 134(c)
and 158(6) of the M.V. Act by the owners. It was further
contended that, the claim petition filed by the petitioner is
false, frivolous and misleading. Respondent No.2 denied the
alleged accident, date and time of the accident, involvement of
the offending vehicle, age, occupation, income of the petitioner,
injuries sustained, treatment taken and amount spent towards
medical expenses.
It is specifically contended that the rider of the motorcycle
riding it in a high speed, without observing the traffic rules and
regulations in a zig zag manner and lost his control over the
vehicle and he himself was dashed against the oncoming
vehicle and sustained simple injuries and therefore, there is no
fault on rider of the offending vehicle.
It is further contended that the liability, if any, is subject
to the terms and conditions of the policy and M.V. Act and rules
and prays to dismiss the petition against the Insurance
Company of the offending vehicle.
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CNR: KAHC020018002022
7. Respondent No.3/Insurer of the motorcycle
contended that petition filed by the petitioner is false, frivolous,
baseless and untenable in the eye of law. It is further denied
the age, avocation and income of the petitioner, the treatment
taken and amount spent towards medical expenses. It is
further contended that the motorcycle involved in the alleged
accident belonged to the petitioner i.e. Akhanbasha Razaqsab
Desai, as such the petitioner is not a third party but, he is a
contractual party.
8. Before the Tribunal, the petitioner himself examined
as PW1 and one witness examined as PW2 and got marked the
documents as Exs.P.1 to P.102. On behalf of respondents, two
witnesses have been examined as RW1 and RW2 and got
marked Exs.R1 to R6.
9. On hearing the arguments, the Tribunal allowed the
claim petition of the petitioner in part with costs and awarded
compensation under the following heads:
Sl.
Heads Amount in Rs.
No.
1 Pain and suffering 50,000/-
2 Medical expenses 40,300/-
3 Future medical expenses Nil
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C/W MFA No. 101438 of 2021
CNR: KAHC020018002022
4 Towards diet, food,
nourishment, attendant and
conveyance charges
61,000/-
5 Loss of future earning capacity
on account of permanent
disability
3,36,000/-
6 Loss of income during laid up 28,000/-
period
7 Towards loss of amenities and 28,000/-
enjoyment in life
TOTAL 5,43,300/-
Further, the Tribunal held respondents No.1 and 2 are
jointly and severally liable to pay compensation to the
petitioner and directed the respondent No.2/Insurer to deposit
the compensation within 30 days from the date of order with
interest at the rate of 9% per annum from the date of petition
till realization.
10. Dissatisfied with the impugned judgment and
award, the petitioner as well as the respondent/Insurer of the
offending vehicle preferred these appeals.
11. Learned counsel for the petitioner argued that the
Tribunal has awarded compensation of Rs.3,36,000/- towards
loss of earning capacity by considering the income of the
petitioner at Rs.7,000/- per month and disability to the extent
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CNR: KAHC020018002022
of 25% even he has sustained segment fracture of tibia and
fibula with osteomyelitis with lizarov in situ and had amputation
below knee of right leg and sustained disability at 75% to the
right lower limb. It is further contended that the petitioner was
earning Rs.12,000/- per month from the agriculture work and
coolie work.
12. It is further argued that the compensation awarded
by the Tribunal under the heads of pain and suffering, towards
loss of amenities, towards medical expenses, towards loss of
income during laid up period and the compensation awarded
under the head of attendant charges and other incidental
charges are all on the lower side. It is further argued that the
Tribunal has not awarded any compensation towards future
medical expenses and also the interest awarded by the Tribunal
on compensation amount is on the lower side. Accordingly,
prays for enhancement of the compensation.
13. Learned counsel for the Insurance Company by
preferring separate appeal argued that the Tribunal passed an
order saddling the liability on the Insurer of the offending
vehicle to the extent of 50% with interest at the rate of 9% is
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CNR: KAHC020018002022
contrary to the law. It is further argued that the motorcycle
rider was not holding any driving license and violated the terms
and conditions of the policy. It is further argued that the
Tribunal erred in directing the Insurer of the offending vehicle
to deposit the compensation amount though the rider violated
the terms and conditions of the policy.
It is further argued that the owner of the motorcycle
having temporary registration No.KA-22/TR-4785 and ought to
have registered the same on or before 23.04.2014, but it was
registered on 26.11.2014 and thus, the vehicle was plying in
the absence of registration number. Further it is argued that
the interest at the rate of 9% awarded on the compensation
amount is exorbitant. It is argued that the petitioner not
produced sufficient material document to show that he has
undergone operation, and the Tribunal failed to consider the
fact that the petitioner has not undergone surgery and only the
plaster was applied to the left leg for the speedy recovery,
which indicates that the injury will be healed soon. It is further
argued that the income assessed by the Tribunal is also
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CNR: KAHC020018002022
excessive. Accordingly, prays for modification of the impugned
judgment and award.
14. Heard the arguments. Perused the materials
available on record. The points that would arise for
consideration by this Court are as follows:
(i) Whether the petitioner proves that the
compensation awarded by the Tribunal is
inadequate and it deserves to be modified?
(ii) Whether the Tribunal is justified in saddling
the liability on respondent No.2/Insurer of
the offending vehicle to pay the
compensation?
(iii) What order?
15. Points framed by this Court for consideration are
answered as follows:
Point No.(i) : Partly in the affirmative.
Point No.(ii) : In the negative.
Point No.(iii): As per the final order, for the
following:
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C/W MFA No. 101438 of 2021
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16. Regarding Point No.(i): It is an undisputed fact
that on 22.05.2014 at 06.00 p.m., the petitioner and his friend
by name Charanaraj Barki were proceeding towards Kittur from
Tadakod village in a Bajaj Pulsar motorcycle bearing
registration No.KA-22/EN-8472 and the petitioner was the
pillion rider in the said motorcycle and when the vehicle
reached near the Kempageri Lake, the rider of the Bajaj
Discover motorcycle bearing registration No.KA-22/TR-4785
came by riding the same in a rash and negligent manner in a
high speed and dashed to the motorcycle of the petitioner. Due
to the said impact, the petitioner sustained grievous injuries.
17. The evidence on record reflects that there is a
head-on collusion between the motorcycle and the offending
vehicle. The police have investigated the matter and filed a
charge sheet against the rider of both the vehicles for the
offence punishable under Sections 279, 337 and 338 of the
Indian Penal Code, 1860. The copy of the complaint, FIR, spot
panchanama, crime details, MVI reports of both the vehicles
and wound certificate has been marked as Ex.P1 to P7. “A” and
“B” charge sheets filed by the police against the petitioner as
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well as the rider of the offending vehicle, which have not been
challenged by both the parties. Ex.P7 is the wound certificate
of the petitioner. It indicates that, immediately after the
accident, the petitioner was shifted to the District Hospital,
Dharwad, wherein he has treated and then he was shifted to
District Hospital, Belagavi (BIMS). Ex.P7 the wound certificate
issued by the District Hospital, Dharwad reflects that the
petitioner has sustained fracture injuries to his right leg bone
with lacerated wound and it is treated by the doctor. The
doctor, who examined as PW2 had issued the disability
certificate, which marked as Ex.P13 before the Tribunal. The
petitioner was treated as an inpatient from 16.12.2014 to
05.01.2015 and undergone operation. Implant removal with
sequestrectomy with ilizarov ring fixation with lectomy, and for
the infected wound he was taken treatment from 05.03.2015
and 06.03.2015. Further, the petitioner was taken treatment
from 23.03.2015 to 05.04.2015 for infected segmental fracture
nonunion right tibia and fibula with osteomyelitis with ilizarov in
situ. The doctor assessed the physical disability to the extent
of 75% towards the right lower limb and deposed that, at the
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time of assessing the disability he has noticed that the
petitioner had amputation below the knee, the amputation
stump appears bulky, tenderness present over the stump and
no discharging sinus or wound but ROM of proximal joint (knee)
is restricted. The Tribunal has assessed the disability to the
extent of 25%. On perusal of the documents available on
record, this Court is of the opinion that there is 40% disability.
18. The petitioner stated that he was working as a
coolie prior to the accident. But, he has not produced any
documents to prove his income. So, as per the guidelines
issued by the Karnataka Legal Services Authority, for the
accident occurred in the year 2014, the income should be taken
at Rs.8,000/- per month. But, the Tribunal has taken the
income at Rs.7,000/- per month which is modified.
19. The petitioner was aged 34 years at the time of
accident. In view of the decision of the Hon’ble Apex Court in
Sarla Verma and others V. Delhi Transport Corporation
4
and another , the applicable multiplier would be “16”.
4
2009 ACJ 1298
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20. Further, in view of the law laid down by the Hon’ble
Apex Court in National Insurance Company Limited v.
5
Pranay Sethi , towards future prospects, 40% of the income
of the petitioner should be added.
Rs.8,000/- + 40% = Rs.11,200/-
Rs.11,200/- X 12 X 16 X 40% = Rs.8,60,160/-
21. Thus, the petitioner is entitled for compensation of
Rs.8,60,160/- under the head of “loss of future income”.
22. By looking into the injuries sustained by the
petitioner and the sufferings, the compensation under the head
of “pain and suffering” is enhanced to Rs.75,000/-.
23. The petitioner had produced the medical bills to the
extent of 40,299/-. The Tribunal has rightly awarded
compensation of Rs.40,300/- under the head of “medical
expenses”, which does not call for interference.
24. The compensation under the head of “diet, food,
nourishment, attendant and conveyance charges” is enhanced
to Rs.75,000/- .
5
(2017) 16 SCC 680
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25. By looking into the prolonged treatment, this Court
is of the opinion that it is reasonable to enhance the
compensation from Rs.28,000/- to Rs.50,000/- under the
head of “loss of income during laid up period”.
26. The petitioner sustained grievous injuries and
underwent repeated surgeries and there was an amputation.
The petitioner was doing coolie work and amputation suffered
by him definitely deprived him from the comforts and
enjoyment in his life. Therefore, this Court is of the opinion that
it is reasonable to award compensation of Rs.75,000/- under
the head of “loss of amenities”.
27. The learned counsel for the petitioner vehemently
argued that the Tribunal has not awarded any compensation
under the head of “future medical expenses”.
28. During the course of his arguments, he relied upon
the judgments of Hon’ble Apex Court in Prahlad Sahai v.
6
Haryana Roadways and Another and in Chandra Mogera
7
v. Santhosh A. Ganachari and Another , wherein the
6
2026 ACJ 997
7
2026 ACJ 977
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Hon'ble Apex Court awarded a compensation for prosthetic limb
and its maintenance charges applying assumed lifespan of 70
years and also for replacement of prosthetic limbs for a period
of 5 years.
29. The Hon’ble Apex Court further observed that
without one limb it is not possible for the petitioner to carry out
his profession as a driver and held that there is a 100% loss of
functional disability and also awarded compensation under the
head of marriage prospects and other medical expenses by
enhancing the compensation awarded by the Tribunal and the
High Court.
30. In this case, the petitioner not led any evidence
before the Tribunal to show that he required so much amounts
for the future medical expenses.
31. But in this case, the petitioner is a coolie and the
monthly income is also not proved and he has no permanent
source of income. But by looking into the injuries sustained by
the petitioner, this Court is of the opinion that it is reasonable
to award compensation of Rs.25,000/- under the head of
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“future medical expenses”. Thus, the petitioner is entitled for
compensation under the following heads:
Sl. Amount in
Heads
No. Rs.
1 Future loss of income 8,60,160/-
2 Pain and suffering 75,000/-
3 Medical expenses 40,300/-
4 Diet, food, nourishment,
attendant and conveyance
charges
75,000/-
5 Loss of income during laid up 50,000/-
period
6 Loss of amenities 75,000/-
7 Future medical expenses 25,000/-
TOTAL 12,00,460/-
32. Accordingly, point No.(i) is answered partly in the
affirmative.
33. Regarding point No.(ii): The petitioner is a third
party who claims compensation. But, the petitioner himself is
the owner of the motorcycle. In the claim petition, the
petitioner arrayed the Insurer of the motorcycle as respondent
No.3. The petitioner was proceeding in a motorcycle as a pillion
rider and one Charanaraj Barki was riding the motorcycle. The
liability of the Insurance Company only towards the third party
not against the owner of the motorcycle. The claim petition also
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filed against the owner and insurer of the offending vehicle,
who are liable to pay the compensation to the petitioner.
34. According to the Insurer of the offending vehicle,
the RC of the offending vehicle was valid till 23.04.2014 only,
and as on the date of accident, the temporary registration was
expired and was not having valid permit to ply on the public
road. In this regard, the insurer had issued a notice to the
owner of the offending vehicle to produce the valid RC, FC and
other documents. The respondent No.1, though served with the
notice, has not bothered to produce the documents.
35. This Court is of the opinion that whether the
offending vehicle was plying on the road without valid
registration or not is not an issue. It is a separate proceeding.
On investigation, the police have filed “A” and “B” charges
sheet against the riders of both the motorcycles as they equally
contributed their negligence to the accident. Merely because
there is no valid permit, the Insurance Company cannot be
exonerated in paying compensation to the petitioner. As the
accident occurred due to the negligence of the rider of both
motorcycles, they have contributed their negligence to the
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extent of 50% each. The charge sheets filed against them have
not been challenged. Such being the circumstances, as they are
equally contributed their negligence to the accident, so the
petitioner being the owner of the motorcycle, though he was
proceeding as a pillion rider, he cannot claim compensation
against insurer. Further by looking into the evidence and
material available on record, this Court is of the opinion that, it
is just and proper to attribute the negligence to the extent of
50-50. The Tribunal has rightly passed an award directing the
respondents No.1 and 2 i.e, the owner and insurer of the
offending vehicle bearing registration No.KA-22/TR-4785.
36. Accordingly, point No.(ii) is answered in the
negative.
37. Regarding point No.(iii): In view of the findings
on points No.(i) and (ii), this Court proceeds to pass the
following:
ORDER
(i) The appeal filed by the petitioner in MFA
No.100803/2022 is allowed in part.
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(ii) The appeal filed by the Insurance
Company MFA No.101438/2021 is
dismissed.
(iii) The impugned judgment and award
passed by the Tribunal is modified. The
petitioner is entitled to receive
compensation of Rs.12,00,460/- as
against Rs.5,43,300/- awarded by the
Tribunal.
(iv) The enhanced compensation amount shall
carry interest at the rate of 6% per
annum from the date of petition till the
date of payment.
(v) Respondents No.1 and 2 are jointly and
severally liable to pay compensation to
the petitioner to the extent of 50% of
their negligence i.e., Rs.6,00,230/- with
accrued interest before the Tribunal within
a period of four weeks from the date of
receipt of certified copy of this judgment.
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(vi) Draw modified award accordingly.
(vii) Registry to transmit the Trial Court
Records forthwith.
(viii) In view of disposal of this appeal, pending
applications, if any, do not survive for
consideration and the same are
accordingly disposed of.
(K.G.SHANTHI)
JUDGE
SMM
List No.: 1 Sl No.: 59
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