- 1 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 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. 201173 OF 2021 (MV-I) BETWEEN: SHARANABASAV S/O VIJAYKUMAR BIRADAR, AGE: 29 YEARS, OCC: EX-CAR DRIVER, R/O: REVANSIDDESHWAR COLONY, HUMNABAD ROAD, KALABURAGI. …APPELLANT (BY SRI B.ALI MOHAMMAD, ADVOCATE) AND: 1. M/S ARNEJA AUTO LOGISTICS SECTOR 28, CHANDMARI, NAGALAND, KOHIMA – 797 001. 2. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., SANGAMESHWAR NAGAR, KALABURAGI – 585 102. …RESPONDENTS (BY SRI UDAY P. HONGUNTIKAR, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND MVC NO.472/2017 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND MACT, AT KALABURAGI AND THE IMPUGNED JUDGMENT AND AWARD DATED 05.03.2021 CAUSED IN MVC NO.472/2017 ON THE FILE OF THE COURT OF PRL. SENIOR CIVIL JUDGE AND MACT, KALABURAGI MAY BE MODIFIED BY GRANTING THE COMPENSATION AS CLAIMED IN THE APPEAL AND THIS MISCELLANEOUS FIRST APPEAL MAY BE ALLOWED AS PRAYED WITH COST, IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 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 05.03.2021 passed by Prl. Senior Civil Judge and MACT, (for short ‘tribunal’) Kalaburagi, in MVC no.472/2017, this appeal is filed. 2. Sri B Ali Mohammad, learned counsel submitted appeal was by claimant for enhancement of compensation. It was submitted that on 05.07.2015, when claimant was returning to Kalaburagi in Car no.KA-32/D-777, driven by its owner’s son, near MSEB office, driver of Lorry no.NL-01/G-7505 drove it in rash and negligent manner and dashed against car, causing accident. In same, claimant sustained severe fractures and admitted to Yashodhara Super Speciality Hospital, Solapur. Despite same, he sustained permanent physical disability and consequent loss of earning capacity. Seeking compensation, he filed claim petition under Section 166 of MV Act against owner and insurer of Lorry. - 3 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 3. On contest, wherein owner of Lorry did not appear and was placed ex-parte, while insurer filed objections not only denying age, occupation and income of claimant, but, also alleging accident occurred due to rash and negligent driving of Car by its driver, tribunal framed issues and recorded evidence. Claimant examined himself and Dr.Raju Kulkarni as PWs-1 and 2 and got marked Exs.P-1 to 19. Insurer did not lead evidence. 4. On consideration, tribunal held accident occurred due to rash and negligent driving of Lorry, claimant sustained permanent physical disability and loss of earning capacity and entitled for compensation as follows: Sl.no. Heads of Compensation Amount 1 Towards Pain suffering Rs.50,000/- 2 Towards Medical Expenses Rs.1,61,495/- 3 Towards Diet and attendant charges Rs.40,000/- 4 Towards loss of income during laid-up period Rs.18,000/- 5 Towards loss of feature earning capacity Rs.3,30,480/- 6 Towards loss of Amenities Rs.10,000/- . Total amount rounded off to Rs.6,09,975/- Rs.6,10,000/- 5. Dissatisfied by award, claimant was in appeal. It was submitted, claimant was driver by profession. Ex.P-16 was - 4 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 his driving licence for LMV (Transport) and PSV. Therefore, assessment of monthly income by tribunal at Rs.8,000/- was grossly inadequate and sought enhancement. It was submitted, when claimant sustained comminuted fracture of right and left humerus, award of Rs.50,000/- towards pain and suffering was inadequate. Likewise in case of award of Rs.10,000/- towards loss of amenities. Even compensation awarded towards loss of income during laid-up period was on lower side. And assessment of functional disability at 17% only, when PW-2 assessed permanent disability at 51.1% was grossly lower and sought enhancement. 6. On other hand, Sri Uday P. Honguntikar, learned counsel opposed appeal claiming that tribunal had awarded just compensation, which did not call for interference. 7. Heard learned counsel and perused impugned judgment and award and record. 8. From above and since only claimant is in appeal, point that would arise for consideration is: “Whether claimant is entitled for enhancement as sought for?” - 5 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 9. Insofar as monthly income, claimant stated he was working as driver and earning Rs.15,000/- per month. To substantiate same, he did not produced any record from his employer. But to establish avocation, he produced driving licence as Ex.P.16. On perusal, it reveals claimant had driving licence for LMV with transport endorsement and PSV licence. Accident occurred in 2015. Notional income for said period was Rs.8,000/-, but tribunal considered Rs.9,000/-. But, taking note of nature of driving licence, assessment of monthly income notionally would be grossly inadequate. It would be appropriate to consider Rs.20,000/- as monthly income. 10. Insofar as physical disability, claimant relied on Ex.P.17 – disability certificate and Exs.P7 and P8 disability certificates and X-ray report. Exs.P7 and P8 reveal he was treated for comminuted fracture of right humerus and left humerus with implants. While Ex.P.17 reveals PW2 assessed right upper limb disability at 20%, left upper limb at 40% and whole body disability of 51.1%. He also stated about need for another surgery for removal of implants and restriction of right - 6 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 shoulder abduction by 200 and 400 on left side. He was cross- examined, but nothing elicited to discredit his assessment. 11. Taking note of disability in light of restriction of movement and occupation of claimant, assessment of functional disability at 17% by tribunal would be grossly inadequate. Keeping in mind fact that claimant may not be able to continue driving as profession, at same time possibility of earning income from alternative avocation, it would be appropriate to consider functional disability at 40%. 12. As per decision of Hon’ble Supreme Court in Mohd. Sabeer Alias Shabir Hussain v. Regional Manager, UPSRTC, reported in (2023) 20 SCC 774, future prospects has to be added to monthly income even in personal injury claims. Since claimant was aged 28 years and self-employed, future prospects at 40% has to be added to monthly income: (Rs.20,000/- + 40%) x40% x12 x17=Rs.22,84,800/- 13. Considering fact that claimant had sustained two major fractures, Rs.50,000/- towards pain and suffering would be just and proper. Likewise, award of Rs.1,61,495/- against - 7 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 medical bills would not call for interference, as tribunal has reimbursed same. 14. Though award towards diet, attendance and conveyance etc. was at Rs.40,000/-, when claimant was impatient for only 12 days was slightly higher, while tribunal awarded only Rs.18,000/- towards loss of income during laid up period, it is found appropriate to add another Rs.20,000/- only towards loss of income during laid up period. Further, tribunal awarded Rs.10,000/- towards loss of amenities. Taking note of disability caused, it would be appropriate to enhance it to Rs.75,000/-. 15. Taking note of implants in situ and requirement of one more surgery for removal, Rs.30,000/- is granted towards future medical expenses. Thus, total compensation would be: Sl.no. Heads of Compensation Amount 1 Towards Pain suffering Rs.50,000 /- 2 Towards Medical Expenses Rs.1,61,495/- 3 Towards Diet and attendant charges Rs.40,000/- 4 Towards loss of income during laid-up period Rs.38,000/- 5 Towards loss of feature earning capacity Rs.22,84,800/- 6 Towards loss of Amenities Rs.75,000/- - 8 - HC-KAR NC: 2025:KHC-K:3428 MFA No. 201173 of 2021 7 Future Medical Expenses Rs.30,000/- TOTAL Rs.26,79,295/- 16. In all, claimant is entitled for total compensation of Rs.26,79,295/-. Point for consideration is answered partly in affirmative. Consequently, following: ORDER i. Appeal is allowed in part, judgment and award dated 05.03.2021 passed by Prl. Senior Civil Judge and MACT, Kalaburagi, in MVC no.472/2017, is modified. ii. Claimant is entitled for compensation of Rs.26,79,295/- as against Rs.6,10,000/- awarded by tribunal. iii. Respondent no.2-insurer is directed to deposit same before tribunal with interest at 6% from date of petition, till payment within six weeks. iv. Conditions of tribunal about deposit and release would also apply to enhanced compensation. Sd/- (RAVI V HOSMANI) JUDGE NJ,Psg* List No.: 1 Sl No.: 42