- 1 - NC: 2025:KHC:922 MFA No. 6809 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI MISCELLANEOUS FIRST APPEAL NO. 6809 OF 2018 (MV-I) BETWEEN: VIJAY KUMAR, S/O S VENUGOPAL, AGED ABOUT 31 YEARS, R/A NO.732 (119/84), SUBBREDDY/NANJAPPA BUILDING, DODDATOGUR, ELECTRONIC CITY, BENGALURU. …APPELLANT (BY SRI SHRIPAD V SHASTRI, ADVOCATE) AND: 1. THE GENERAL MANAGER, HDFC ERGO GENERAL INSURANCE CO. LTD., EMPIRE ARCADE, NO.356/1, 1ST FLOOR, OMALUR MAIN ROAD, OPP NEW BUS STAND, SALEM-4. 2. M/S HIPOWER ELECTRONIC CITY PHASE-1, KONNAPPANNA AGRAHARA, BANGALORE-100. …RESPONDENTS (BY SRI D.V VIJAYAKUMAR, ADVOCATE FOR R-1; NOTICE TO R-2 DISPENSED WITH V/O DATED 17.09.2024) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.04.2018 PASSED IN MVC Digitally signed by NANDINI R Location: High Court of Karnataka - 2 - NC: 2025:KHC:922 MFA No. 6809 of 2018 NO.2651/2015 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, SCCH-4 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C M JOSHI ORAL JUDGMENT Heard the learned counsel for the appellant and learned counsel for respondent No.1. 2. Being aggrieved by the judgment and award in MVC.No.2651/2015 passed by the XVIII Additional Judge, Court of Small Causes, Bengaluru dated 24.04.2018, the petitioner is before this Court seeking enhancement of compensation. 3. The factual matrix of the case is that on 11.11.2014 at about 12.30 pm, when the petitioner was riding his motorcycle bearing No.KA-51-R-5768 near Krishna Theatre on elevated flyover, a Maruthi Van bearing No.KA-51-MF-4873 abruptly stopped and therefore, the petitioner dashed against the said Maruthi Van resulting in - 3 - NC: 2025:KHC:922 MFA No. 6809 of 2018 accident and injuries to him. The petitioner was immediately shifted to St.John Hospital, Bengaluru, wherein, he was found to have suffered i) Laceration over left forearm with muscle and tender injury, ii) Laceration over the forehead, iii) Left thigh crush injury with superficial femoral artery injury with thrombosis, iv) Left ankle open fracture dislocation and v) open lateral maleolus fracture. He underwent surgery in the hospital and was in-patient from 11.11.2014 to 24.11.2024 i.e., for 13 days. The petitioner further contended that prior to the accident, he was working as a Customer Relationship Officer in a partnership firm-Vriddhi Interiors, earning Rs.25,000/- per month. Therefore, he sought adequate compensation by filing claim petition under Section 166 of the Motor Vehicles Act. 4. The claim petition was opposed by the respondent No.2-Insurance Company contending that the petition is bad for non-joinder of necessary party and that there was no such negligence on the part of the driver of - 4 - NC: 2025:KHC:922 MFA No. 6809 of 2018 the Maruthi Van. It was contended that the petitioner who was the rider of the motorcycle was not having a driving licence and there was negligence on his part as he hit the Maruthi Van on his own. Inter-alia, it was also contended that the compensation claimed is highly exorbitant, imaginary and untenable in law. 5. The respondent No.1-Owner of the Maruthi Van remained ex-parte. 6. On the basis of the above pleadings, appropriate issues were framed by the Tribunal. The petitioner was examined as PW.1 and two witnesses were examined on his behalf as PWs.2 and 3. Exs.P1 to P122 were marked in evidence. No documents or oral evidence was led on behalf of respondent No.1. 7. After hearing the arguments by both the sides, the Tribunal awarded a compensation of Rs.3,58,000/- under following heads: - 5 - NC: 2025:KHC:922 MFA No. 6809 of 2018 8. Being aggrieved by the said judgment and award, the petitioner is before this Court in appeal. 9. The arguments by learned counsel appearing for the appellant and the learned counsel appearing for respondent No.1 were heard. Respondent No.2 did not appear despite service of notice. Trial Court Records have been secured. 10. Learned counsel appearing for the petitioner/appellant submits that the petitioner was working as a Customer Relationship Officer in a partnership firm, of which, PW.3 was one of the partner. The Tribunal despite there being sufficient evidence to PARTICULARS AMOUNT (IN RS.) Pain and suffering 50,000/- Medical expenses Nil Loss of income during period of treatment 50,000/- Disability 1,63,000/- Loss of amenities 30,000/- Towards food and nourishment 15,000/- Towards attendant charges 25,000/- Towards Future medical expenses 25,000/- TOTAL 3,58,000/- - 6 - NC: 2025:KHC:922 MFA No. 6809 of 2018 show that he was earning Rs.25,000/-, has taken the income of the petitioner at Rs.10,000/- and therefore, there is an error in appreciating the evidence. Secondly, he contends that the petitioner is unable to continue his job and therefore, the disability stated by the PW.2, should have been accepted and it is not justified in reducing the same to 8%. It is further contended that the compensation awarded under all the heads by the Tribunal is also on the lower side and therefore, adequate compensation be awarded. 11. Per contra, learned counsel appearing for respondent No.1 would submit that the testimony of PW.3 do not conclusively establish the salary of the petitioner at Rs.25,000/- and therefore, the Tribunal is justified in treating the income of the petitioner at Rs.10,000/-. He points out that such income is little higher than the notional income which is normally taken by the Tribunal. He further points out that PW.3 has categorically admitted and volunteered to say that he had paid all the medical - 7 - NC: 2025:KHC:922 MFA No. 6809 of 2018 bills and therefore, the Tribunal rightly has not awarded any amount towards the medical expenses. He further points out that Ex.P122 and the testimony of PW.3 would show that the petitioner has worked with the PW.3 even after the accident and therefore, the petitioner loosing his earning capacity and the job is not sustainable in law. Therefore, he contends that the compensation awarded by the Tribunal is proper and correct and no interference is needed by this Court. 12. On perusal of the evidence available on record, it is evident that the testimony of PW.2, who also happens to be a Doctor of St. Johns Hospital, where the petitioner was treated, goes to show that on a thorough examination, he came to the conclusion that there is 21.54% of the disability to him. The disability on account of the injuries are stated by him as below: 8. He has 21.54% disability of whole body assessed according to Guidelines & Gazette Notification, Regd. No. DL33004/99 (extraordinary) Part II, Sec. 1, June - 8 - NC: 2025:KHC:922 MFA No. 6809 of 2018 13, 2001 Issues by Ministry of Social Justice &v Empowerment, GOI as follows: • Loss of movements of (L) forearm - 1.66% • Loss of movements of (L) hip - 1.89% • Loss of movements of ankle & subtalar joint- 14.99% • Pain (interfering with function) - 3.0% ________ Total 21.54% _______ 13. It is pertinent to note that the disability stated by PW.3 is in respect of the whole body and he had considered the disabilities of each of the limbs. It is pertinent to note that the loss of movement of ankle and subtalar joint alone contributes to 14.99% of the disability. Therefore, it is evident that major portion of the disability in respect of the movement of the left lower limb of the petitioner. Now the question would be whether this could result in functional disability to the petitioner vis-à-vis his avocation. Further, it is also relevant to note that testimony of the PW.2 would show that there is non-union and he has stated that there is requirement of further surgeries. Therefore, he has estimated the 'future medical expenses' at Rs.40,000/-. The overall consideration of the testimony of PW.2 and the medical records would show - 9 - NC: 2025:KHC:922 MFA No. 6809 of 2018 that the disability is basically on account of non-union of the fracture of the wounds in the lower limb. Now, when we juxtapose the above injury as stated by PW.2 in his testimony, with the avocation of the petitioner that he was working as Customer Relationship Officer in a private partnership firm-Vriddhi Interiors which is involved in the interior works done for the residences and business establishments, definitely, the movement of the petitioner on his motorcycle gets affected. In the light of this, this Court is of the view that the disability of 14.99% as stated by PW.3 to the lower limb, coupled with the non-union of the bones would definitely translate into a functional disability of 14%. This Court cannot shut its eyes to the testimony of PW.2 who happens to be a Doctor of St.John Hospital and part of the treating team. 14. It is pertinent to note that PW.3 in his testimony states that he is taking a salary of Rs.20,000/- and another partner is taking a salary of Rs.18,000/-. In the light of these admissions by PW.3 in the cross- examination, the income of the petitioner having assessed - 10 - NC: 2025:KHC:922 MFA No. 6809 of 2018 at Rs.10,000/- per month by the Tribunal cannot be interfered with. Therefore, the 'loss of future income' as calculated by the Tribunal is to be modified. In that view, the same is calculated as Rs.10,000/- X 12 X 17 X 14% = Rs.2,85,600/-. 15. The Tribunal has awarded a sum of Rs.30,000/- under the head of 'loss of amenities in life', which this Court feels that, needs to be enhanced to Rs.50,000/- on account of non-union of the fractured bones. The compensation awarded by Tribunal in the remaining heads do not require any enhancement. 16. Thus, the petitioner is entitled for the modified compensation under different heads as below: PARTICULARS AMOUNT (IN RS.) Pain and suffering 50,000/- Medical expenses Nil Loss of income during period of treatment 2,85,600/- Disability 1,63,000/- Loss of amenities 50,000/- Towards food and nourishment 15,000/- Towards attendant charges 25,000/- Towards Future medical expenses 25,000/- 6,13,600/- 3,58,000/- TOTAL Less awarded by Tribunal Enhancement 2,55,600/- - 11 - NC: 2025:KHC:922 MFA No. 6809 of 2018 17. Thus, the petitioner is entitled for enhanced compensation of Rs.2,55,600/- with interest and 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.2,55,600/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its deposit. (iii) The respondent No.1/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 of the Tribunal stands unaltered. Sd/- (C M JOSHI) JUDGE NR/- List No.: 1 Sl No.: 59