- 1 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201523 OF 2022 (MV-I) BETWEEN: MAHADEV GOLAPPA WALIKAR, AGE: 39 YEARS, OCC: MILK-VENDOR, R/O UKAMANAL, VIJAYAPUR-586 101. …APPELLANT (BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE) AND: 1. VIRESH PUTTAPPA KAMBAR, AGE: MAJOR, OCC: BUSINESS AND OWNER OF MOTORCYCLE NO.KA-28/EL-6035, R/O W.NO.17, PAVADBASAVESHWAR ROAD, DIST. VIJAYAPURA-586 101. 2. THE BRANCH MANAGER, THE NATIONAL INSURANCE CO. LTD., S.S. FRONT ROAD, VIJAYAPURA-586 101. …RESPONDENTS (BY *SRI. SHARANABASAPPA M. PATIL, ADV. FOR R2; V/O DTD. 26.08.2022, NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION AMOUNT PAYABLE TO THE APPELLANT BY * Corrected Vide Court Order Dated:26.04.2025 Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 SUITABLY MODIFYING THE JUDGMENT AND AWARD DATED 21.02.2022 PASSED BY THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL NO. XV AT VIJAYAPURA IN MVC NO. 547/2018. THIS APPEAL COMING ON FOR ADMISSION, 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) Heard the learned counsel appearing for appellant and the respondent. 2. With consent of learned counsel for both the parties, this matter is taken for final disposal even though it is slated for admission. 3. Being aggrieved by the judgment and award in MVC No.547/2018, dated 21.02.2022 by learned IV Addl. Senior Civil Judge & MACT-XV, Vijayapura, the petitioner is before this Court in appeal seeking enhancement of the compensation. - 3 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 4. The petitioner while was traveling on motorcycle bearing No.KA-29/L-2138 as pillion rider, another motorcycle bearing number KA-28/EL-6035 owned by respondent No.1 and insured by respondent No.2 came from opposite side in high speed and negligent manner and dashed to the motorcycle of the petitioner and the petitioner fell down and sustained injuries. The petitioner was shifted to District Hospital Vijayapura and then he was shifted to a private hospital where he underwent surgeries and treatment. Claiming that he is aged 35 years doing the milk vending business, earning Rs.20,000/- per month, filed claim petition before the Tribunal. 5. On service of notice, the respondent No.2 appeared and filed written statement contending that the compensation claimed is highly exorbitant, imaginary and untenable and there was negligence on the part of the rider of the motorcycle over which the petitioner was the pillion rider. It is contended that there were violations of - 4 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 the terms and conditions of the policy and therefore, it be absolved from paying any compensation. 6. The Tribunal framed appropriate issues and the petitioner was examined as PW1 and Ex.P1 to 13 were marked. The doctor who assessed disability was examined as PW2. After hearing both the sides, the Tribunal awarded compensation under various heads as below: Sl.No. Heads Amount 1 Pain and suffering Rs.30,000/- 2 Medical bills and other incidental charges Rs.38,923/- 3 Food, nourishment, special diet Rs.5,000/- 4 Loss of future earning capacity Rs.1,35,360/- 5 Loss of income during the laid- up period Rs.23,500/- 6 Loss of amenities Rs.10,000/- Total Rs.2,42,783/- 7. Being aggrieved by the same, the petitioner is before this Court in appeal. Learned counsel appearing for the petitioner would submit that the petitioner was a milk vendor, aged 35 years, earning Rs.20,000/- per month - 5 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 and even though the PW2 stated that there is a disability of at 18 to 20% to the limb, the Tribunal has assessed the same at 6% which is on the lower side. He submits that the compensation under the remaining heads also needs to be reassessed. 8. Per contra, learned counsel for respondent No.2 would submit that the Tribunal has appropriately assessed the disability and in the absence of the nature of the work of the petitioner, it cannot be presumed that there is a functional disability to the petitioner. He submits that there is no need for indulgence by this Court. 9. The fact that there was an accident involving the motorcycle owned by respondent No.1 and insured by respondent No.2 is not in dispute. So also the liability of the respondent No.2 to pay the compensation has been properly decided by the Tribunal. The only ground urged before this Court is in respect of the quantum of compensation. - 6 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 10. The medical records would show that the petitioner had sustained fracture of head of the left femur and it was treated with nailing and screws. PW2 in his testimony states that there is restriction of the movement of the right hip joint. The PW2 after a detailed scrutiny of the movements of the hip joint, comes to the conclusion that there is permanent disability to the extent of 18 to 20% to the right lower limb. The physical disability assessed by PW2 to the extent of 18 to 20% cannot be disputed. The question is what is the functional disability of the petitioner. The evidence on record shows that the petitioner was a milk vendor. It is not known whether the petitioner was selling the milk by sitting in a milk vending shop or he used to distribute the milk to the households. The contribution of the physical disability to the functional disability would be different if he is sitting in the shop and selling the milk. Learned counsel appearing for the appellant vehemently submit that he was selling the milk by visiting the households on a bicycle. The cross examination of the PW1 by the Insurance company also do - 7 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 not throw any light on this aspect. Therefore, this Court is of the view that the petitioner being an illiterate person, was distributing the milk by visiting the households. Hence, the functional disability of the petitioner is taken at 10%. 11. The notional income of the petitioner assessed by the Tribunal at Rs.11,750/- do not require any reconsideration. Hence, the loss of income on account of disability is calculated as Rs.11,750/- x 12 x 16 x 10% = Rs.2,25,600/-. 12. Consequentially, holding that the petitioner was unable to resume his work at least for a period of 3 months, the petitioner is entitled for a sum of Rs.11,750/- x 3 = Rs.35,250/-. 13. The petitioner was inpatient for 8 days and therefore, a sum of Rs.10,000/- has to be awarded towards the food, nourishment, conveyance and attendant charges. - 8 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 14. The Tribunal has awarded a sum of Rs.10,000/- under the head of loss of amenities in life and the same needs to be enhanced to Rs.30,000/-. 15. The compensation under remaining heads do not require any interference. 16. Thus, the appellant is entitled for enhanced compensation of Rs.1,26,990/- under following heads. Sl. No. Heads Award by the Tribunal Award by this Court 1 Pain and suffering Rs.30,000/- Rs.30,000/- 2 Medical bills and other incidental charges Rs.38,923/- Rs.38,923/- 3 Food, nourishment, special diet Rs.5,000/- Rs.10,000/- 4 Loss of future earning capacity Rs.1,35,360/- Rs.2,25,600/- 5 Loss of income during the laid-up period Rs.23,500/- Rs.35,250/- 6 Loss of amenities Rs.10,000/- Rs.30,000/- Total Rs.2,42,783/- Rs.3,69,773/- Less: Award by the Tribunal Rs.2,42,783/- Total enhancement Rs.1,26,990/- - 9 - NC: 2025:KHC-K:2067 MFA No. 201523 of 2022 17. Therefore, the appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.1,26,900/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization. (iii) Respondent No.2 - Insurance Company is directed to deposit the entire compensation amount within a period of six weeks from the date of this order. (iv) Rest of the order passed by the Tribunal remains unaltered. Sd/- (C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 43 CT: AK