MITHUN. V vs THE NEW INDIA ASSURANCE CO. LTD.,
- Court
- Karnataka High Court
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MFA No. 1895 of 2017
C/W MFA No. 1894 of 2017
R
CNR: KAHC010240792017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCELLANEOUS FIRST APPEAL NO.1895 OF 2017(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.1894 OF 2017(MV-I)
IN MFA No. 1895/2017:
BETWEEN:
M/S NEW INDIA ASSURANCE
COMPANY LIMITED
BOMMASANDRA BRANCH,
ST
KIADB COMPLEX, 1 FLOOR,
HOSUR MAIN ROAD,
BOMMASANDRA,
BENGALURU - 562 158.
NOW REP BY ITS,
APPEALS HUB,
ND
DIVISIONAL OFFICE-III, 2 FLOOR,
MAHALAKSHMI CHAMBERS,
M.G.ROAD, BENGALURU - 560 001
REPRESENTED BY ITS DULY
CONSTITUTED ATTORNEY
…APPELLANT
Digitally signed
by ANUSHA V
Location: High
Court of
Karnataka
(BY SRI A M VENKATESH, ADVOCATE)
AND:
1. MITHUN V
S/O VASU V,
AGED ABOUT 23 YEARS,
R/AT NO.13/3,
MOODALAPPA CROSS,
DODDAMAVALLI,
BENGALURU - 560 004.
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2. T SATHYANANDA
NO.33, SHIVAJI CIRCLE,
ANEKAL TALUK,
BENGALURU - 562 106
(OWNER OF TRACTOR BEARING
REG NO.KA-51/M-1565)
DEAD BY LRs
2(a) SMT.UMA
D/O LATE T.SATHYANANDA,
MAJOR,
2(b) SMT.NALINI
D/0 LATE T.SATHANANADA,
MAJOR,
2(c) SMT.MAHALAKSHMI
D/O LATE T.SATHYANANDA,
MAJOR,
2(d) SMT.KAVYA,
D/O LATE T.SATHYANANDA,
MAJOR,
ALL ARE RESIDING AT
NO.33, SHIVAJI CIRCLE,
ANEKAL TALUK,
BENGALURU RURAL DISTRICT.
…RESPONDENTS
[BY SRI MALLIKARJUN B RYAKHA, ADVOCATE FOR R1;
R2(a) TO R2(d) - NOTICE SERVED AND UNREPRESENTED]
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.11.2016 PASSED IN MVC
NO.859/2015 ON THE FILE OF THE MEMBER, PRINCIPAL MACT,
BANGALORE, (SCCH-1), AWARDING COMPENSATION OF
Rs.15,38,000/- WITH INTEREST @ 9% P.A. ON Rs.15,13,000/-
FROM THE DATE OF PETITION TILL REALIZATION.
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IN MFA NO. 1894/2017:
BETWEEN:
MITHUN V.,
S/O VASU V,
AGED ABOUT 23 YEARS,
R/AT NO.13/3, MOODALAPPA CROSS,
DODDAMAVALLI, BANGALORE - 560 004.
...APPELLANT
(BY SRI MALLIKARJUN B RYAKHA, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE CO. LTD.,
BOMMASANDRA BRANCH (670302),
KIADB COMPLEX, I FLOOR,
HOSUR MAIN ROAD, BOMMASANDRA,
BANGALORE - 562 158.
REP BY ITS MANAGER.
2. T. SATHYANANDA
NO..33, SHIVAJI CIRCLE,
ANEKAL TALUK,
BENGALURU - 562 106
DEAD BY LRs
2(a) SMT.UMA
D/O LATE T.SATHYANANDA,
MAJOR,
2(b) SMT.NALINI
D/0 LATE T.SATHANANADA,
MAJOR,
2(c) SMT.MAHALAKSHMI
D/O LATE T.SATHYANANDA,
MAJOR,
2(d) SMT.KAVYA,
D/O LATE T.SATHYANANDA,
MAJOR,
ALL ARE RESIDING AT
NO.33, SHIVAJI CIRCLE,
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ANEKAL TALUK,
BENGALURU RURAL DISTRICT.
...RESPONDENTS
(BY SRI A.M.VENKATESH, ADVOCATE FOR R1;
V/C/O DATED 05.10.2026 NOTICE TO LRs OF
DECEASED R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 08.11.2016 PASSED IN
MVC NO.859/15 ON THE FILE OF THE MEMBER, PRINCIPAL
MACT, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR FURHTER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and award dated 08.11.2016
passed by Member Principal Motor Accident Claims Tribunal,
Bangalore (SCCH-1) (' Tribunal ') in MVC no.859/2015, these
appeals are filed.
2. MFA no.1895/2017 is filed by insurer challenging
finding of Tribunal on liability. While MFA no.1894/2017 is filed
by claimant for enhancement of compensation.
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3. Brief facts leading to these appeals as stated are
that at 11:30 p.m. on 09.02.2015 when claimant was riding
motorcycle no.KA-01/HF-1238, near Srirama Temple Circle,
Anekal, driver of Tractor no.KA-51/M-1565 drove it from
opposite direction in a rash and negligent manner and it dashed
against motorcycle. In accident, claimant sustained grievous
injuries and despite treatment, he did not recover fully and
sustained loss of earning capacity. Claiming compensation, he
filed claim petition in MVC no.859/2015 under Section 166 of
Motor Vehicles Act, 1988 (' MV Act ') against insurer and owner
of Tractor.
4. On appearance, claim petition was opposed on all
counts. Insurer not only denied age, occupation, income and
loss of earning capacity but also contended absence of
negligence on part of driver of insured vehicle in causing
accident. It was further contended that insured vehicle was
issued with a private vehicle policy whereas at time of accident,
Tractor was attached with Water Tanker and thus used for
commercial purpose in violation of policy condition. It was
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submitted that in case of usage of Tractor for commercial
purpose, fitness certificate and permit would be necessary.
5. Based on pleadings, Tribunal framed issues and
recorded evidence.
6. Claimant examined himself and six others including
Dr.Ashok Raj Koul, Dr.Nagaraj B.N and Dr.K.M. Kumarswamy
as PWs.1 to 7 and got marked Exs.P1 to 41. In rebuttal,
respondent no.2 - owner was deposed as RW.1, official of
insurer deposed as RW.3 and also examined ARTO as RW.2 and
got marked Exs.R1 to R7.
7. On consideration, Tribunal answered issue no.1 in
affirmative; issue no.2 in negative; issue no.3 partly in
affirmative and issue no.4 by assessing total compensation of
Rs.15,38,000/- with interest at rate of 9% per annum and
holding insurer liable to pay same. Dissatisfied with same,
these appeals are filed.
8. In MFA no.1895/2017, Sri A.M. Venkatesh, learned
counsel for appellant – insurer submitted that occurrence of
accident involving insured vehicle and claimant sustaining
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injuries / disability / loss of earning capacity and being entitled
for compensation were not in dispute. Challenge by insurer was
mainly on liability. As on date of accident, even as per
complainant, Tractor was attached with Water Tanker and
accident occurred when it collided with claimant's motorcycle. It
was submitted that insurance policy subscribed to by
respondent no.2 - owner was as a private vehicle for
agricultural and miscellaneous purposes policy. There was a
prohibition against usage of vehicle for commercial purposes.
As per prosecution records, accident occurred due to collision
between motorcycle and Water Tanker Tractor. Despite same,
in an apparent attempt to cover-up violation of policy condition,
RW.1 - owner of vehicle denied upteen suggestions by insurer
that at time of accident, Tractor was attached with Water
Tanker and same has to be taken note of to draw adverse
inference and impose liability on owner.
9. It was submitted that in his deposition, RW.2 -
ARTO stated that Tractor attached with Water Tanker would
require special permission for commercial usage coupled with
fitness certificate requiring renewal every year and permit
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requiring renewal every 3 years. He also stated that no such
permission for commercial usage, fitness certificate or permit
were obtained by owner of insured Tractor. It was submitted
that Full Bench of this court in Gadhilingappa @ Gadhilinga v
K. Guleppa, reported in 2021 ACJ 2588 had absolved liability
of insurer where accident occurred while Tractor was used with
attachment. In view of above, fastening of liability upon insurer
by Tribunal was not justified. It was alternatively submitted
that even if claimant were to be a third party, referring to
decisions of Hon'ble Supreme Court in Shamanna and Anr. v.
Divisional Manager, Oriental Insurance Co., Ltd. and
Ors. , reported in (2018) 9 SCC 650 and Pappu and Ors. V.
Vinod Kumar Lamba and Anr. , reported in (2018) 3 SCC
208 , it was submitted that insurer cannot be held finally liable
and therefore award may be modified with pay and recover
condition. On quantum, it was submitted that Tribunal had
assessed just compensation which did not call for any
enhancement and award of interest at 9% per annum would
off-set scope for enhancement. It was further submitted that
addition of future prospects at 50% was excessive and
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impermissible and sought for reduction. On above ground
sought for dismissal of claimant’s appeal.
10. On other hand, Sri Mallikarjun B Ryakha, learned
counsel for appellant - claimant in MFA no.1894/2017 would
oppose insurer's appeal and submits that Tribunal had awarded
inadequate compensation and sought for enhancement. It was
submitted that as on date of accident, claimant was 21 years of
age and stated to be earning Rs.12,000 as weaver. Claimant
sustained non-displaced fracture of frontal bone with
communited fracture of thymoid, sinus and nasal septum. PW.5
- plastic surgeon who treated claimant opined that due to
accidental injuries, claimant lost motor sensory prehensile
functioning of left upper limb resulting in 90% disability by
issuing Ex.P32 - disability certificate. Under above
circumstances, assessment of monthly income at only
Rs.7,500/- loss of earning capacity at only 30% was not
justified and sought enhancement.
11. It was further submitted that award of only
Rs.50,000/- towards pain and suffering, Rs.25,000/- towards
attendance and other incidental expenses, Rs.6,49,000/-
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towards medical expenses, Rs.30,000/- towards loss of
amenities, Rs.25,000/- only towards future medical expenses,
Rs.30,000 towards loss of amenities was on lower side. It was
submitted that Tribunal erred in not awarding any
compensation towards loss of marriage prospects. It was
submitted that due to injuries and treatment claimant was laid
off for 2 years, compensation towards loss of income during
laid up period at only Rs.30,000/- was not justified and sought
enhancement.
12. Heard learned counsel, perused impugned
judgment, award and record.
13. From above and since appeals are by insurer and
claimant on liability and quantum, points that arise for
consideration are:
1) Whether finding of Tribunal that insurer was
liable to pay compensation requires
modification?
2) Whether assessment of compensation by
Tribunal requires modification?
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Point no.1:
14. To establish actionable negligence against
owner/insurer, claimant relied on prosecution records namely
FIR, Charge Sheet, Motor Vehicle Inspector's Report and Spot
Mahazar marked as Exs.P1, P16 to P18 respectively. Perusal of
Ex.P1 appended with complaint discloses that pillion rider on
claimant's motorcycle was complainant, who had clearly stated
that accident occurred due to collision between motorcycle and
Water Tanker Tractor from opposite direction. Ex.P16 - charge
sheet implicates driver of Water Tanker Tractor to have caused
accident. There cannot be cavil against ratio laid down by Full
Bench of this Court in Gadi Lingappa ’s case, questions
referred to namely II and III are:
II) Whether the persons who are working either
on the ploughing or crushing machines
attached to the tractor can be construed as
employees so as to cover their risk statutorily
under Section 147 of MV Act though there is
only one seating capacity in the tractor apart
from the driver?
III) Whether the crushing machine or ploughing
machine or any other instrument attached to
the tractor can be considered to be an
attachment to the tractor so as to cover the
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risk of the insured in respect of employees
and the policy taken in respect of the tractor
alone?
15. On consideration of fact that owner of vehicle had
insured only Tractor (Tractor Engine), held insurer not liable to
pay compensation in case of injuries suffered by victims while
using attachments to Tractor. But Hon'ble Supreme Court in
case of Royal Sundaram Alliance Insurance Company
Limited v. Smt.Honnamma and Ors. [ 2025 INSC 625 ] in
para-12 held question of fact to be decided in such cases would
be whether root cause of accident was insured Tractor or
attachments to Tractor. If root cause was Tractor, then insurer
of Tractor cannot avoid liability. As noted above, there is no
dispute about fact that collision in instant case was between
Water Tanker Tractor and motorcycle. But material on record to
elucidate whether collision was between Tractor Engine and
motorcycle would be specific assertion by claimant in claim
petition that it was a head on collision. Complainant being
pillion rider on motorcycle and as such an eye-witness stating
accident occurred when vehicles were moving from opposite
direction. Apart from above, in cross-examination of RW.3
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suggestions made by owner of insured vehicle that collision was
between Tractor Engine and motorcycle and elucidation of
admission from RW.3.
16. In view of above, though Tribunal has not analysed
material on record to arrive at such a finding of fact, result
fastening liability on insurer of Tractor would be justified. Thus,
whether there was violation of provisions of MV Act by usage of
insured vehicle for commercial purpose or otherwise would pale
into insignificance. Even alternative plea of learned counsel for
insurer would have no place in present case. Point no.1 is
therefore answered partly in affirmative.
Point no.2:
17. On quantum, it is not in dispute that claimant was
21 years of age, working as weaver. But though he stated his
monthly income as Rs.12,000/- there was no specific material
produced to substantiate same. In absence, Tribunal assessed
it notionally at Rs.7,500/-. But notional income for year 2015
being Rs.9,000/-, same has to be considered. Claimant
sustained non-displaced fracture of frontal bone with
communited fracture of thymoid, sinus and nasal septum. As
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per Ex.P32 issued by doctor examined as PW.5, claimant
sustained 90% disability. Perusal of Ex.P32 as well as
deposition of PW.5 reveals that said assessment is based on
clinical observation that claimant had lost motor sensory and
prehensile functioning of left upper limb, which would imply
that left arm of claimant is rendered ornamental use. As a
consequence, assessment of compensation has to be as if in
case of amputation. In this regard, occupation of claimant
would prime-up. Loss of an arm to a weaver would imply higher
disability than in case of another avocation. At same time,
possibility of earning income from alternative avocation
requires to be kept in mind. In light of facts and circumstances,
assessment of disability at only 30% by Tribunal would be
grossly inadequate. It is found appropriate to reassess it at
50% .
18. As per decision of Hon'ble Supreme Court in
Erudhaya Priya v. State Express Transport Corporation
Ltd. , reported in 2020 SCC OnLine SC 601 has held that
future prospects has to be added to monthly income even in
personal injury claim. Since claimant was aged below 40 years
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and self-employed, addition of future prospects would have to
be at 40% . Thus, compensation towards future loss of income
would be (Rs.9,000/- + 40%) X 50% X 12 X 18 =
Rs.13,60,800/- . Tribunal has awarded Rs.50,000/- towards
pain and suffering. Considering fracture sustained was to skull,
award appears just and proper, no enhancement . Claimant has
taken inpatient treatment for a total of 28 days. Considering
same, award of Rs.25,000/- towards conveyance, attendance,
food and other incidental expenses would appear justified.
Tribunal has awarded Rs.6,49,000/- towards medical
expenses against bills produced. Since it is in full
reimbursement thereof, there would be no scope for
enhancement. Tribunal has awarded a lumpsum of Rs.30,000/-
towards loss of income during laid up period. Normally
fractures take about 3 months to heal. In instant case, as a
consequence of head injury, claimant has lost utility of his left
upper limb. Therefore, it is found fit to treat period of 6 months
as lay-off at Rs.9,000/- per month, claimant would be entitled
to Rs.54,000/- under this head instead. PW.5, who treated
claimant as noted implant and stated about requirement of
operation for removal. But has not quantified expenses. Under
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above circumstances, award of Rs.25,000/- by Tribunal
towards future medical expenses appears justified. Tribunal has
awarded Rs.30,000/- towards loss of amenities. Considering
extent of disability sustained and age of claimant, same would
be grossly inadequate. Apart from above, loss of utility of hand
would also affect marriage prospects. Hence, it is found
appropriate to award a lump sum of Rs.1,50,000/- towards
loss of amenities and marriage prospects. Thus, total
compensation would be Rs.23,13,800/- . Point no.2 is
answered partly in affirmative as above.
19. At this stage, on a submission made by learned
counsel for insurer seeking reduction of rate of interest, learned
counsel for claimant fairly agreed to reduce rate of interest
from 9% to 8% per annum. Ordered accordingly.
Consequently, following:
ORDER
a. MFA no.1895/2017 filed by insurer is
allowed in part only insofar as interest.
b. Insure is directed to deposit enhanced
compensation before Tribunal within six
weeks.
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c. On deposit, entire enhanced
compensation with interest is ordered to
be released in favour of claimant through
electronic means.
d. MFA no.1894/2017 filed by claimant is
allowed in part .
e. Total compensation is re-assessed to
Rs.23,13,800/- as against
Rs.15,38,000/- assessed by Tribunal.
f. Same shall carry interest at 8% per
annum from date of claim petition till its
realization.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
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