- 1 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 26TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI MISCL. FIRST APPEAL NO. 201734 OF 2019 (MV-I) BETWEEN: SHANKAR S/O VITHAL ABBENDE, AGE: 32 YEARS, OCC: LABOUR, R/O: IMAMBAD HALLI, TQ. & DIST: BIDAR. …APPELLANT (BY SRI SANJEEV PATIL, ADVOCATE) AND: 1. ZAFFIULLA KHAN S/O RAHIMULLA KHAN, C/O: MADHUKARRAO KADAND, H.NO.1167, BALIRAMPUR, TQ & DIST: NANDED, (MAHARASHTRA STATE – 431 601) 2. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LIMITED, VEERBHADRESHWAR CHAMBERS, DOOR NO.8-10-135/1 & 1A, OPP: NEHARU STADIUM, BIDAR – 585 401. …RESPONDENTS (BY SRI S.S.ASPALLI, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO EXERCISE ITS APPELLATE Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 JURISDICTION, CALL FOR RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 01.04.2019 PASSED BY THE LEARNED ADDITIONAL SENIOR CIVIL JUDGE AND MACT AT BIDAR IN M.V.C.NO.673/2017, BY ENHANCING THE COMPENSATION AMOUNT FROM RS.4,73,258/- TO RS.15,00,000/-, AND ALSO ENHANCE THE INTEREST PAYABLE BY THE RESPONDENTS ON THE COMPENSATION AMOUNT, AND FURTHER PLEASED TO ALLOW THIS APPEAL FILED BY THE APPELLANT HEREIN IN THE ENDS OF JUSTICE. THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and award dated 01.04.2019 passed by Additional Senior Civil Judge and M.A.C.T., Bidar, in MVC no.673/2017, this appeal is filed. 2. Sri Sanjeev Patil, learned counsel submitted appeal was by claimant for enhancement of compensation. It was submitted, at about 20:15 hours on 05.05.2015, claimant was traveling in auto no.KA-38/2615 from Bidar to Imambad Halli, when driver of car no.MH-34/K-2795 drove it in rash and negligent manner and dashed against auto, causing accident. Due to same, he sustained grievous injuries and was shifted to Government Hospital and thereafter shifted to NIMS Hospital, Hyderabad. Despite taking treatment, he did not recover fully and sustained permanent physical disability/loss of earning - 3 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 capacity. Hence, he filed claim petition under Section 166 of MV Act. 3. Respondent no.1-owner did not appear and was placed ex-parte. Respondent no.2-insurer filed objections denying claim petition averments in toto, disputing age, occupation and income of claimant as well as loss of earning capacity. It also alleged contravention of terms and conditions of policy. 4. Based on pleadings, tribunal framed issues and recorded evidence, wherein claimant examined himself and Dr.Mallikarjun Yemme as PWs.1 and 2 and got marked Exs.P.1 to P.13. Respondents did not lead any evidence. 5. On consideration, Tribunal held that accident occurred due to rash and negligent driving of auto, claimant had sustained permanent physical disability and loss of earning capacity and entitled for compensation from insurer as follows: Heads Compensation Amount Medical expenses 62,258/- Loss of earning during period of treatment 15,000/- Loss of future earning on account of 3,36,000/- - 4 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 permanent disability Future medical expenses 20,000/- Pain and suffering 20,000/- Loss of amenities 20,000/- Total 4,73,258/- 6. Not satisfied, claimant was in appeal. 7. It was firstly submitted, claimant sustained fracture of right leg leading to amputation below knee, tribunal awarded only Rs.20,000/- towards pain and suffering. Further, it awarded grossly inadequate amount of Rs.15,000/- towards loss of income during laid up period. Even award of Rs.20,000/- towards loss of amenities was inadequate. It was further contended claimant had sustained amputation of right leg below knee. PW.2 assessed it to have caused disability of 97%. However, Tribunal had considered only 35% towards loss of earning capacity. Therefore, award requires enhancement. 8. Sri S.S.Aspalli, learned counsel for respondent no.2-insurer opposed appeal. It was submitted on consideration of entire material on record, Tribunal had determined just compensation under various heads, which did not call for enhancement and prayed for dismissal of appeal. - 5 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 9. Heard learned counsel, perused impugned judgment and award. 10. From above, while insurer had accepted award and as only claimant is in appeal for enhancement of compensation, only point that would arise for consideration is: “Whether claimant is entitled for enhancement of compensation as prayed for? 11. From above, occurrence of accident due to rash and negligent driving of auto by its driver, claimant sustaining permanent physical disability and loss of earning capacity as well as insurer being liable to pay compensation are not in dispute. 12. Though, claimant stated that he was working as labour and earning Rs.12,000/- p.m., same was not substantiated. In absence, tribunal assessed it notionally. Since, notional income for year 2015 is Rs.8,000/-, same has to be considered. 13. Claimant sustained amputation of right leg below knee. Therefore, award of only Rs.20,000/- towards pain and suffering, would be grossly inadequate. It would be appropriate - 6 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 to award Rs.1,50,000/- instead. Normally, In case of amputation of lower limb, six months is considered as lay off period. Thus, claimant would be entitled for Rs.40,000/- towards loss of income during lay off period. 14. PW.2-Orthopedic surgeon issued Ex.P-10 - disability certificate assessing permanent disability of 97%. Tribunal considered 1/3 of same as whole body disability, which is not appropriate. Even considering possibility of other avocation, amputation would generally affect earning capacity. Therefore, it would be appropriate to consider loss of earning capacity at 50%. As per decision of Hon’be Supreme Court in case of Mohd. Sabeer @ Shabir Hussain v. Regional Manager, U.P. State Road Transport Corporation1 there has to be addition of future prospects, even in personal injury case. Claimant herein is 30 years of age and self employed, inviting addition of 40% towards future prospects. Thus, computation of future loss of income would be as follows: (Rs.8,000/- + 40%) x 50% x 12 x 16 = 10,75,200/- 1 (2022) 18 SCR 427 - 7 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 15. In view of amputation of lower limb, following ratio in Rajkumar v. Ajaykumar and Another2 compensation towards loss of amenities is enhanced to Rs.1,50,000/-. Tribunal has not awarded compensation towards artificial limb, its periodic maintenance and replacement. But, awarded only 20,000/- towards future medical expenses, which would be grossly inadequate. It is found appropriate to award Rs.1,00,000/- towards same. 16. Tribunal awarded Rs.62,258/- towards medical expenses. Since, there is complete reimbursement of bills produced, same would not invite enhancement. Thus, total compensation would be as follows: Heads Compensation Amount Medical expenses Rs.62,258/- Loss of earning during period of treatment Rs.40,000/- Loss of future earning on account of permanent disability Rs.10,75,200/- Future medical expenses Rs.1,00,000/- Pain and suffering Rs.1,50,000/- Loss of amenities Rs.1,50,000/- Total Rs.15,77,458/- 2 (2011) 2 SCC 343 - 8 - HC-KAR NC: 2025:KHC-K:3407 MFA No. 201734 of 2019 17. Point for consideration is answered partly in affirmative. Consequently, following: ORDER i. Appeal is allowed in part, judgment and award dated 01.04.2019 passed in MVC no.673/2017 by Court of Additional Senior Civil Judge and MACT, Bidar is modified, claimant is held entitled for total compensation of Rs.15,77,458/- as against `4,73,258/- awarded by tribunal with interest at 6% per annum from date of claim petition till deposit. ii. Insurer is directed to deposit enhanced compensation within six weeks from date of receipt of certified copy of this judgment. Sd/- (RAVI V HOSMANI) JUDGE NJ List No.: 1 Sl No.: 40