- 1 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 28TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C.M. JOSHI MISCL. FIRST APPEAL NO.201716/2022(MV-I) BETWEEN: DHARAMSINGH @ KIRAN S/O SHEKHAR RATHOD, AGE: 11 YEARS, OCC: NIL, R/O HANCHINAL L.T., TQ. VIJAYAPURA, NOW AT SINDAGI, SINCE MINOR REPRESENTED BY HIS NATURAL MOTHER ANITABAI W/O. SHEKHAR RATHOD, AGE: 41 YEARS, OCC: DRIVER, R/O HANCHINAL L.T., TQ. VIJAYAPURA, NOW AT SINDAGI. …APPELLANT (BY SRI SANGANAGOUDA V. BIRADAR, ADVOCATE) AND: 1. SUDHEER RAMESH PAWAR, AGE: MAJOR, OCC: BUSINESS, R/O NEW KUMBAR GALLI, JORAPURPETH, VIJAYAPURA-586 101. 2. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 S.S. FRONT ROAD, VIJAYAPUR-586 101. …RESPONDENTS (BY SRI J. AUGUSTIN, ADVOCATE, FOR R2; R1 - V/O DTD. 24.07.2023 NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 01.03.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SINDAGI, MACT-X, SINDAGI, IN MVC NO.2017/2014 AND CONSEQUENTLY TO ENHANCE THE COMPENSATION FROM RS.1,72,270/- TO RS.8,50,000/- WITH INTEREST AT 12% PER ANNUM FROM THE DATE OF PETITION TILL ACTUAL REALIZATION. THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C.M. JOSHI) Being aggrieved by the judgment and award in MVC No.2017/2014 passed by the Senior Civil Judge and JMFC and MACT, Sindagi, (for short ‘the Tribunal’), the petitioner is before this Court in appeal. The petitioner is a minor and he is represented by his natural mother as guardian. 2. The factual matrix of the case is that on 10.10.2013, the petitioner along with his father and mother - 3 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 was proceeding on a motorcycle bearing No.KA-32/E-5026 as pillion rider from Ittangihal towards Vijayapura. Near the Darga Ring-Road Cross a TATA-Ace bearing No.KA-28/B- 4054 came from Solapur bypass in rash and negligent manner and collided with the motorcycle, resulting in, the rider and pillion riders falling down and sustaining injuries. After the accident, they were shifted to BLDE Hospital, Vijayapura and thereafter Sanjeevini Hospital and Yashodhara Hospital, Solapur. The petitioner was minor, aged about 3 years and due to the accident he suffered head injury, for which, he was inpatient for 28 days and underwent surgeries. It is contended that the petitioner became a mentally retarded and he has been severely disabled permanently. A case was registered by Vijayapura Traffic Police in Crime No.158/2013 against the TATA-Ace driver and ultimately charge-sheet was filed against him. Hence, the petitioner approached the Tribunal and sought just and reasonable compensation from the owner and insurer of the TATA-Ace vehicle. - 4 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 3. On issuance of notice, respondent No.1 did not appear despite service of notice and therefore, placed ex- parte. 4. The respondent No.2 – Insurance Company filed written statement contending that the accident was due to the negligence of the rider of the motorcycle and there was no negligence on the part of the TATA-Ace driver. It also denied, the age and the nature of the disability sustained by the petitioner and termed the compensation claimed as highly exorbitant, imaginary and speculative. Inter alia, it also alleged that the driver of the TATA-Ace has violated the terms and conditions of the policy. 5. On the basis of the above contentions, the Tribunal framed appropriate issues. The petition was clubbed with two other claim petitions filed by the rider and other pillion rider, who are the parents of the petitioner and common evidence was led and Exs.P1 to P33 were marked in evidence. The Doctor, who assessed the disability, was examined as PW4 and Dr. Siddu Sonnad, who assessed the - 5 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 disability of the petitioner, was examined as CW1 and Exs.C1 to C4 were marked. No oral evidence was led on behalf of the respondents, however, documents at Exs.R1 to R3 were marked. 6. After hearing the arguments, the Tribunal held that the accident was due to the negligence on the part of the driver of the TATA-Ace vehicle and as such, fastened the liability upon respondent No.2 – Insurance Company and awarded the compensation of Rs.1,72,270/- under different heads as below: 1 Pain and sufferings Rs.25,000/- 2 Inconvenience caused to parents Rs.10,000/- 3 Food and nourishment charges Rs.1,000/- 4 Attendant charges Rs.500/- 5 Loss of amenities and future comforts Rs.10,000/- 6 Medical expenses Rs.1,25,770/- Total Rs.1,72,270/- 7. Aggrieved by the same, the petitioner is before this Court in appeal. - 6 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 8. The arguments by learned counsel for petitioner and learned counsel for respondent No.2 were heard. The evidence on record was perused. 9. The learned counsel for the petitioner would submit that the petitioner, who was a boy aged 3 years, had suffered contusion on right occipital - parietal region and cut lacerated wound on the left side forehead as per the Wound Certificate at Ex.P12. It is contended that due to the accidental injuries, there is severe disability and it was a case of polytrauma and there is mental retardation to the petitioner. He relies on the testimony of CW1, who states that there is weakness which is severe and the disability is to the extent of 61% to the whole body. Therefore, the functional disability of the petitioner is to be assessed by the Tribunal, but, the Tribunal has awarded the compensation by taking the disability at 20%. It is pointed out that the Tribunal while recording the evidence notes that the petitioner is unable to move his limb and there is mental retardation. Despite that, the Tribunal fails to assess the - 7 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 functional disability. Therefore, he submits that the compensation be reassessed by this Court. 10. Per contra, learned counsel appearing for respondent No.2 defends the impugned judgment stating that there is no reason to enhance the compensation, when the disability stated by CW1 itself is 61%. The Tribunal has assessed the compensation properly by holding that multiplier method cannot be adopted for calculation of the compensation. 11. A careful perusal of the impugned judgment would show that even though the Tribunal assesses the evidence of the CW1 in Para 27 and holds that there is disability, in Para 29 it holds that since the petitioner is minor, multiplier method is not applicable. The Tribunal also does not refer to any of the settled principles laid down by the Apex Court either in the case of Master Mallikarjun v. National Insurance Co. Ltd.1, or in Kumari Kiran Versus 1 (2014) 14 SCC 396 - 8 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 Sajjan Singh and Others2. Therefore, the impugned judgment overlooks the settled principles and fails to consider the disability stated by the CW1. As such, the same is not sustainable in law. 12. In the case of Master Mallikarjun referred to supra, the Apex Court has laid down that if the disability is more than 30%, a sum of Rs.5,00,000/- has to be awarded in addition to the medical expenses. In the case of Kiran, a structured formula was adopted by the Apex Court. It is pertinent to note when the disability is on the higher side, the Courts have adopted the structured formula by taking the multiplier as ‘18’. It is also worth to note that in the case of The Divisional Manager, National Insurance Company Vs Akash3 a Division bench of this court has considered the ratio and held that Master Mallikarjun cannot be applied when the disability is on the higher side. It followed the principles laid in the case of Kajal Vs Jagadish 2 (2015) 1 Supreme Court Cases 539 3 2020 SCC OnLine Kar 5416 : 2021 ACJ 2645 - 9 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 Chand & others4. Further, the Division Bench in Para 7 held that the notional income of a minor has to be taken at Rs.4,846/- per month and such income would be proper. Therefore, there is no reason to deviate from such conclusion. 13. So far as the disability is concerned, the CW1 has stated that he assessed the disability in the year 2019 and he has found that it was head injury and polytrauma. The medical records show that the primary treatment was done in the hospital of the CW1 and thereafter in several hospitals including Yashodhara Hospital. He opines that the petitioner is having weakness in the right upper and lower limb of grade 4/5 and he is having ataxic gait on walking and standing, dysarthria i.e., difficulty in articulation and speaking, and he is unable to speak. The MRI and other reports show that there is “focal left frontal encephalomalacia with surrounding changes of gliosis, thin periventricular white matter FLAIR hyper intensity bilaterally”. Therefore, he states that the petitioner requires 4 (2020) 4 SCC 413 - 10 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 one attender to look after him for the rest of the life. On these grounds, he states that there is disability of 61% to the whole body. The cross-examination does not elicit anything else except the denials. The Disability Certificate at Ex.C1 reiterates the testimony of the CW1. The other medical records show similar reports. The Discharge Summery at Ex.P15 shows that there is Post Traumatic Psychomotor Retardation Right Monoplegia. 14. To understand the disability properly, it is necessary to look into the observations of the Tribunal. While recording the testimony of PW1 - Shekhar Rathod, it was noticed that the petitioner cannot move his right hand and it is twisted without any movement. It was also observed that even though the boy is aged 5 to 6 years, he is unable to speak. The observation of this Court recorded on 25.03.2025 shows that the petitioner is accompanied by his mother and he is unable to speak. It is observed that petitioner is mentally retarded and his responses are not as that of a normal person and even his gait is unstable. - 11 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 15. Thus, a careful perusal of the records and the testimony of the CW1, coupled with the observation of the Tribunal as well as this Court, show that there is severe disability. Even though the CW1 states that there is a disability of 61%, the functional disability of the petitioner is 75%. Therefore, the loss of future income is to be calculated by adding the future prospects also. Hence, the effective multiplicand would be Rs.4,846/- + 40% of Rs.4,846/- = Rs.6,784/-. Hence, the loss of future income prospects is calculated as Rs.6,784/- x 12 x 18 x 75% = Rs.10,99,008/-. 16. The petitioner needs an assistance of a person for his rest of the life, therefore, the same is calculated by moderately assessing the attendant’s charges at Rs.3,000/- per month. In the result, petitioner is entitled for Rs.3,000/- x 12 x 18 = Rs.6,48,000/-. 17. In addition to it, the petitioner is also entitled for a sum of Rs.1,00,000/- under the head of pain and suffering and a sum of Rs.1,00,000/- under the head of loss of amenities in life. - 12 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 18. The compensation awarded by the Tribunal under the head of medical expenses do not require any interference. 19. The parents of the petitioner definitely have spent atleast three months for the purpose of treatment of the petitioner and therefore, the loss of earning of the parents of the petitioner is calculated as Rs.7,000/- x = Rs.21,000/-. In addition to it, it the petitioner is also entitled for a sum of Rs.30,000/- under the head of conveyance and food, nourishment and attendant’s charges. Therefore, the petitioner is entitled for the compensation Rs.21,23,778/- under following heads: Sl. No. Heads Award by the Tribunal Award by this Court 1 Pain and sufferings Rs.25,000/- Rs.1,00,000/- 2 Medical expenses Ra.1,25,770/- Rs.1,25,770/- 3 Loss of future income -- Rs.10,99,008/- 4 Inconvenience caused to parents (loss of earning during treatment period of the petitioner) Rs.10,000/- Rs.21,000/- 5 Conveyance, attendant’s and nourishment charges Rs.1,500/- Rs.30,000/- - 13 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 6 Moderate attendant’s charges in future -- Rs.6,48,000/- 7 Loss of amenities in life Rs.10,000/- Rs.1,00,000/- Total Rs.1,72,270/- Rs.21,23,778/- Less: Award by the Tribunal Rs.1,72,270/- Total enhancement Rs.19,51,508/- 20. In the result, the impugned judgment needs to be modified by allowing the present appeal in part. Hence, the following: ORDER i) The appeal is allowed in part. ii) The petitioner is entitled for a sum of Rs.19,51,508/- in addition to the compensation awarded by the Tribunal, along with interest at the rate of 6% per annum from the date of petition till its deposit before the Tribunal. - 14 - NC: 2025:KHC-K:2556 MFA No. 201716 of 2022 iii) The respondent No.2 is directed to deposit the compensation amount within 06 weeks from the date of this judgment. iv) Rest of the order passed by the Tribunal regarding deposit and etc., remain unaltered. Sd/- (C.M. JOSHI) JUDGE SBS List No.: 1 Sl No.: 6 CT: AK