- 1 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201509 OF 2017 (MV-I) BETWEEN: MD. SAJEED S/O ZAHEERUDDIN, AGE: 28 YEARS, OCC: DRIVER, NOW NIL, R/O ZAHEERABAD, DIST. MEDAK (AP). …APPELLANT (BY SRI. MANVENDRA REDDY, ADVOCATE) AND: THE DIVISIONAL CONTROLLER, NEKRTC BIDAR DIVISION, BIDAR-585 401. …RESPONDENT (BY SRI. MANJUNATH MALLAYYA SHETTY, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED-21.01.2017 PASSED BY THE ADDL. MACT AND PRL. SENIOR CIVIL JUDGE AND CJM AT BIDAR IN MVC NO.618/2014 BY ALLOWING THE APPEAL AND ENHANCE THE COMPENSATION OF RS.12,84,000/- AS PRAYED FOR. Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 THIS APPEAL COMING ON FOR FINAL HEARING, 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 learned counsel appearing for the appellant and learned counsel for respondent-Corporation. 2. Being aggrieved by the judgment and award in MVC No.618/2014 by the Addl. MACT & Prl. Senior Civil Judge & CJM, Bidar (for short, the Tribunal’) dated 21.01.2017, the petitioner is before this Court in appeal. 3. The factual matrix of the case is that, on 12.09.2014 at about 3:00 p.m. the petitioner was riding his motorcycle bearing No.TS-15/EA-2633, with one Md.Afroz as the pillion rider. On the outskirts of Ranjol village, the driver of the KSRTC bus bearing No.KA-38/F- 743 came from opposite side in a rash and negligent manner and collided with the motorcycle. Consequently, - 3 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 the petitioner sustained grievous injuries i.e. fracture of tibia and fibula of the right leg and the pillion rider- Md.Afroz died at the spot. The petitioner was shifted to Zaheerabad Hospital and thereafter he was referred to Apex Hospital, Bidar. During treatment, he underwent surgeries with ORIF and had to take follow up treatment for six months. Contending that he was aged about 25 years, working as a driver in a Bolero Jeep belonging to one Prakash and was earning Rs.15,000/- per month, he filed the claim petition before the Tribunal. It was contended that the petitioner has suffered permanent disability an account of injuries sustained by him. It was also stated that the Zaheerabad Rural Police registered a case in Crime No.81/2014 against the driver of the KSRTC bus and ultimately have filed charge-sheet against the bus driver. 4. The respondent-KSRTC (Corporation) appeared through its counsel and filed written statement contending that there was no such negligence on the part of the driver - 4 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 of the bus, but the accident occurred due to the negligence on the part of the petitioner. It is contended that the compensation claimed by the petitioners is highly exorbitant and imaginary. It also denied the age, income and occupation of the petitioner. Inter alia it contended that the Tribunal had no jurisdiction in the matter. 5. On the basis of the above contentions, the Tribunal framed appropriate issues and the petitioner was examined as PW.1 and two witnesses as PWs.2 and 3. Exs.P1 to P124 were marked in his evidence. 6. After hearing the arguments by both sides, the Tribunal came to the conclusion that the petitioner had also contributed negligence to the extent of 50% and determined the compensation under different heads as below: - 5 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 Sl.No. Heads Compensation 1. Pain and suffering Rs.35,000/- 2. Loss of future income due permanent disability Rs.2,44,800/- 3. Loss of income during laid up period Rs.32,000/- 4. Medical Expenses Rs.48,000/- 5. Attendant charges Rs.3,000/- 6. Misc. Expenses Rs.5,000/- 7. Conveyance expenses Rs.8,000/- 8. Loss of amenities Rs.20,000/- 9. Future Medical Expenses Rs.10,000/- Total Rs.4,05,800/- Due to contributory negligence, the petitioner is entitled to 50% of the said compensation i.e. Rs.2,02,900/- 7. Being aggrieved by the impugned judgment, the petitioner is before this Court in appeal. 8. The learned counsel appearing for the appellant would submit that, the Tribunal erred in holding that there is contributory negligence to the extent of 50% on the part of the petitioner. He would submit that the charge-sheet was filed against bus driver only and therefore, the Tribunal was not justified in fastening the contributory negligence. He points out that, the bus being a heavy passenger vehicle, the degree of care that should have - 6 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 been taken by the driver of the bus was on the higher side and therefore, fastening liability to the extent of 50% on the petitioner is unjustifiable. His second prong of the argument is that the quantum of compensation awarded by the Tribunal is on the lower side. The petitioner being aged about 30 years, was working as a driver and the employer of the petitioner was examined as PW.2 and as such, the income of the petitioner at Rs.15,000/- had been proved by him. Despite such proof, the Tribunal held income at Rs.8,000/-, which is not sustainable in law. 9. He also points out that the disability stated by PW.3 was to the extent of 47% to the limb and 20% to the whole body. Despite that the Tribunal has assessed the functional disability at 15%, which is on the lower side. Thus, he seeks indulgence by this Court in reassessment of the compensation amount. 10. Per contra, learned counsel for respondent submits that the contributory negligence considered by the Tribunal at 50% is proper and correct and there are no - 7 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 reasons to interfere with the same. He also submits that the compensation awarded by the Tribunal is just and proper and as such he defends the impugned judgment. 11. The first aspect to be considered by this Court is whether there is any contributory negligence on the part of the petitioner. A perusal of the police papers would disclose that the FIR produced at Ex.P1 initially indicted the bus driver for negligent driving, and after investigation, police filed charge-sheet against the bus driver only. The spot mahazar at Ex.P3 and the sketch at Ex.P4 are of vital importance. Ex.P4 shows that the spot of the accident is at the centre of the road. The Tribunal in paragraph No.9 of its judgment observes that the accident occurred on the midline of the road and therefore, the petitioner should explain as to why he could not drive on the left side of the road to avoid the accident. On that ground, it comes to the conclusion that there is contributory negligence to the extent of 50% on behalf of the petitioner. - 8 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 12. A careful perusal of the testimony of the PW.1 and as well as his cross-examination by the respondent do not elicit anything about the contributory negligence on the part of the petitioner. Therefore, the oral testimony of the PW.1 is not of any relevance. There is no evidence, which has been lead on behalf of the respondent. Under these circumstances, the only question is whether the Ex.P4 could have relied by the Tribunal to hold that there is contributory negligence? 13. The learned counsel for the appellant places reliance on the judgment of Apex Court in the case of Prabhavathi & Ors. vs. The Managing Director, Bangalore Metropolitan, Transport Corporation1 in this judgment the Apex Court came to the conclusion that the contributory negligence as assessed by the Tribunal based on the spot mahazar was correct and held that there was no contributory negligence. In the case on hand, the spot mahazar at Ex.P4 shows that the accident 1 2025 LiveLaw (SC) 266 - 9 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 occurred at the centre of the road. The Motor Vehicle Inspector’s report at Ex.P6 would show that the right side bumper of the bus had depressed inside. This indicates that the motorcycle had collided to the right side bumper of the bus. Obviously if the accident occurred at the centre of the road, bus was on the left lane of the road and it was incumbent upon the petitioner to explain as to why he could not ride his motorcycle on left lane of the road. Therefore, the above judgment relied by the learned counsel for the appellant is not of any help to him. 14. It must be observed that the vehicle of the respondent is a heavy passenger vehicle, whereas the motorcycle being a two wheeler, the degree of care that should be exercised by the bus driver was more. Keeping in view this aspect, it would be proper to hold that the contributory negligence on the part of the petitioner was 20% and that on the part of the bus driver was 80%. - 10 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 15. Coming to the quantum of compensation, it must be observed that though PW.2 had stated that he was paying Rs.15,000/- to the petitioner along with two other drivers employed by him, he failed to produce the register, which he had maintained in that regard. It may be noted that the certificate issued by him at Ex.P.122 appears to have been created only for the purpose of producing the same before the Tribunal. The supporting material to show that the petitioner was employed continuously for sufficient period with salary of Rs.15,000/- per month are not forthcoming. However, considering the age of the petitioner and that he was driver, the Tribunal assessed his income at Rs.8,000/- per month notionally. This assessment by the Tribunal, need not be interfered with when the testimony of the PW.2 is unreliable. 16. The Tribunal assessed the evidence of PW.3 and came to the conclusion that there is functional disability of 15%. The petitioner had sustained fracture of tibia and - 11 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 fibula of the right leg and there were implants in situ when x-ray was taken at the instance of PW.3. The disability certificate of PW.3 at Ex.P115 states that the restrictions of the movement at the hip joint is it 30%, there is loss of muscle strength, which accounts for 20%. Totally these aspects will contribute to 25%. He states that there is deformity in the functional position and therefore he ultimately comes to the conclusion that there is permanent partial disability of 47% of the right lower limb, which corresponds to 20% of the whole body. 17. Obviously the functional disability is a matter which has to be decided by the Tribunal. PW.3 can only depose about the physical disability, but not the functional disability. The petitioner being a driver on a Bolero Jeep as stated by himself as well as by PW.3 has some difficulty on account of the fracture of tibia and fibula of the right leg. In driving a vehicle, the use of the right leg is of pivotal importance. In that view of the matter, the assessment of functional disability by the Tribunal at 15% appears to be - 12 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 on lower side. This Court opines that the functional disability of the petitioner on account functional disability of 47% to the right lower limb would be 20%. Hence, the loss of future income is calculated as Rs.8,000/- x 12 x 17 x 20% = Rs.3,26,400/- by adopting a multiplier of ‘17’, which is undisputed. 18. The Tribunal has awarded meager compensation under the head of pain and suffering. Considering the nature of the injuries, the petitioner is entitled for a sum of Rs.40,000/- under this head. 19. The Tribunal has awarded a sum of Rs.32,000/- under the head of loss of income during laid up period. The same is considered by this Court for 6 months and therefore, a sum of Rs.48,000/- (8000x6) is awarded. 20. The Tribunal noting that the petitioner was inpatient for only 5 days, has awarded a sum of Rs.3,000/- under the head of attendant charges, - 13 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 convenience etc, the same needs to be enhanced to Rs.10,000/-. 21. The Tribunal has awarded a sum of Rs.20,000/- under the head of loss of amenities in life and considering the fact that the petitioner has to suffer the injury for the rest of his life while he works as a driver, it would be proper to award a sum of Rs.40,000/- under this head. 22. The Ex.P.116, the report of the x-ray show that there are implants in situ. Therefore, the petitioner is entitled for future medical expenses of Rs.20,000/-, which would not carry in any interest, instead of Rs.10,000/- awarded by the Tribunal. 23. The compensation awarded by the Tribunal under the head of medical expenses do not require any interference. 24. Thus, the petitioner is entitled for a total compensation under the following heads. - 14 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 Sl.No. Heads Compensation 1. Pain and suffering Rs.40,000/- 2. Loss of future income due permanent disability Rs.3,26,400/- 3. Loss of income during laid up period Rs.48,000/- 4. Medical Expenses Rs.48,000/- 5. Attendant charges, Misc. Expenses, conveyance expenses Rs.10,000/- 6. Loss of amenities Rs.40,000/- 7. Future Medical Expenses Rs.20,000/- Total Rs.5,32,400/- Less: 20% Rs.4,25,920/- Less: amount awarded by the Tribunal Rs.2,02,900/- Enhancement Rs.2,23,020/- 25. In the result, the appeal deserves to be allowed in-part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The appellant/petitioner is entitled for a sum of Rs.2,23,020/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a. from the date of petition till its deposit (excluding - 15 - NC: 2025:KHC-K:2091 MFA No. 201509 of 2017 interest over Rs.20,000/- awarded towards future Medical Expenses). (iii) The respondent-Corporation is directed to deposit the compensation amount within a period of six weeks from the date of this order. (iv) Rest of the order of the Tribunal stands unaltered. (v) The Registry to send back the trial court records to the concerned Court. Sd/- (C M JOSHI) JUDGE SDU LIST NO.: 1 SL NO.: 53 CT: AK