- 1 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO.5127 OF 2023(MV-I) BETWEEN: SRI. N. MURALI, S/O N. SHANKAR, AGED ABOUT 35 YEAR, RESIDING AT NO.262, 3RD CROSS, ANNAMMA 3RD MAIN ROAD, NEAR CHIKKA GANESH TEMPLE, YADALAMMANAGARA, SUBRAMANYAPURA POST, BENGALURU - 560 061. …APPELLANT (BY SRI. GIRIMALLAIAH, ADVOCATE) AND: 1. UNITED INDIA INSURANCE COMPANY LTD., REGIONAL OFFICE, T.P.HUB, KRISHI BHAVAN, 6TH FLOOR, HUDSON CIRCLE, NRUPATNGA ROAD, BENGALURU - 560 001. BY ITS MANAGER. 2. MR. B. SHIVAIAH, S/O KUPPAIAH NAIDU, MAJOR, (AGE R-2 NOT KNOWN TO APPELLANT), NO.31, REVENUE LAYOUT, Digitally signed by GAVRIBIDANUR SUBRAMANYA GUPTA SREENATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 NANDINI ENCLAVE, BSK 3RD STAGE, BENGALURU - 560 085. 3. MR. SURESH M.K., S/O MANTIKOPPAL, MAJOR, (AGE OF R-3 NOT KNOWN TO APPELLANT), NO.25/2, 1ST FLOOR, 2ND CROSS, CAUVERI NILAYA, NORTH FACING ASTALAKSHMI LAYOUT, 6TH PHASE, J.P.NAGAR, BENGALURU - 560 078. …RESPONDENTS (BY SMT. MANJULA NEMICHANDRA TEJASWI, ADVOCATE FOR R-1; NOTICE TO R-2 AND R-3 IS DISPENSED WITH VIDE ORDER DATED 13.03.2024) **** THIS MFA IS FILED U/S.173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 17.03.2023 PASSED IN MVC NO.7538/2019 ON THE FILE OF THE CHIEF JUDGE, COURT OF SMALL CAUSES AND MEMBER, PRL. MOTOR ACCIDENT CLAIMS TRIBUNAL AT BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS MFA COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT This appeal is preferred by the appellant-claimant challenging the judgment and award dated 17.03.2023 passed by the Chief Judge, Court of small Causes and Member, Principal Motor Accident Claims Tribunal at Bengaluru (for short ‘the tribunal’), in M.V.C.No.7538/2019. This appeal is founded on the premise of inadequacy of compensation. Hence, the appellant seeks enhancement of compensation. 2. Though the matter is listed for admission, with consent of learned counsel for both parties, it is taken up for final disposal. 3. Parties to the appeal shall be referred to as per their status before the tribunal. 4. It is the case of the appellant-claimant that, on 23.09.2019 at about 7:10 p.m., while he was riding Honda Activa vehicle bearing registration No.KA-05-JW- 4733 near Hopcoms at Krishi Bhavan, Hudson Circle, at - 4 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 that time, an Innova Car bearing registration No.KA-05- ME-1491 came at high speed from his behind in rash and negligent manner and dashed against the claimant. Due to which, he sustained injuries and underwent treatment at Sanjay Gandhi Institute of Trauma and Orthopedics, Bengaluru. Accordingly, a crime was registered for the offences punishable under Sections 279, 338 of IPC against the driver of the offending vehicle. In view of the injuries sustained in the road traffic accident, the claimant filed a claim petition, seeking compensation against the Insurance Company, owner and driver of the offending vehicle. 4.1. On service of notice, respondents No.2 and 3 remained absent and were placed ex-parte. Respondent No.1- Insurance Company filed statement of objections denying the claim of the claimant and sought for dismissal of the claim petition. 4.2. On the basis of the materials placed on record, both oral and documentary, the tribunal awarded total - 5 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 compensation of `4,90,800/- along with interest at 6% per annum fastening the liability jointly against respondents No.1 and 3 and directed the respondent No.1 - Insurance Company to pay the compensation. 4.3. Being aggrieved by the inadequate compensation awarded by the tribunal, the claimant is before this Court seeking enhancement of compensation. 5. It is the vehement contention of the learned counsel for the claimant that the tribunal has committed an error in awarding meager compensation. The Tribunal has failed to take into consideration the disability suffered by the claimant to an extent of 48% towards lower limb and the opinion expressed by the Doctor at 16% whereas the tribunal has reduced the whole body disability to 10% without any proper basis or contra evidence. It is also contended by the learned counsel that towards future medical expenses and other heads, the tribunal has awarded meager compensation which requires - 6 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 enhancement. On these grounds, he seeks to allow his appeal and consequently to enhance the compensation. 6. Per contra, learned counsel Smt. Manjula N. Tejaswi, for the respondent No.1 - Insurance Company vehemently contends that the judgment and award passed by the tribunal is correct and does not call for interference, as just and reasonable compensation is awarded by the tribunal. It is also contended by the learned counsel that there is no error committed by the tribunal with regard to assessing the income, whole body disability, applying the multiplier factor and the compensation on other heads. 6.1. Learned counsel contends that the disability expressed by the Doctor at 48% to the left lower limb and 16% to the whole body is not justified and the tribunal has rightly taken the whole body disability at 10%. She further canvasses her argument that the Doctor himself has deposed in his cross- examination by stating that the fracture is united. There is no specific answer given by the Doctor (PW-2) anywhere in the evidence to show the - 7 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 disability which would affect the functional movement or functional disability in future earning capacity of the claimant. Therefore, she sustains the disability taken by the tribunal at 10%. 6.2. Learned counsel relies on a judgment of the Hon’ble Apex Court in the case of T.J. PARAMESHWARAPPA @ PARAMESHWARAPPA @ J.T. PARAMESHWARAPPA @ TALALKENA GOWDRA PARAMESHWARAPPA VS. THE BRANCH MANAGER AND OTHERS rendered in Civil Appeal Nos.8598-8599/2022 on 18.11.2022. 7. The principle laid down in the said judgment referred by the learned counsel for the Insurance Company is that the percentage of permanent disability with regard to the whole body of a person cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same percentage of disability (except in a few cases) where the tribunal, on the basis of - 8 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 evidence concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability, as stated in paragraph 19 of the said judgment. 8. In the case on hand, PW-2 - Doctor has opined that the claimant has suffered disability at 48% to the lower limb and 16% to the whole body, whereas the tribunal has taken the disability at 10%. I am in agreement with the learned counsel for appellant-claimant and the learned counsel for respondent No.1-Insurance Company that whenever the Doctor opines disability, he has to very categorically and specifically state the functional disability and deformity in the future earning capacity to arrive at a whole body functional disability. In the case on hand, the Doctor (PW-2) has opined the disability at 16% by dividing 1/3rd of the lower limb disability and has assessed the whole body disability at 16%. The fact remains that the fracture is of the left tibia and as per the Doctor's evidence, the said fracture is united. The avocation of the claimant is that of an - 9 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 Electrician. Under the circumstances, this Court deems it appropriate to re-assess the disability at 12% instead of 10% by the tribunal as there is no fixed table prescribed under the Motor Vehicles Act or Rules or any circulars or notifications neither can the Courts fix any fixed disability on the basis of the injuries or the fractures. It all depends upon the age, avocation and the injuries sustained. In the circumstances, the disability is taken at 12%. In view of the above, the loss of future earning capacity would be `14,000/-x 12 x '16' x 12% =`3,22,560/- as against `2,68,800/-. 9. In another area where the income requires to be enhanced as canvassed by the learned counsel for appellant-claimant is future medical expenses. I am afraid the same cannot be acceded to for the reason that, future medical expenses is awarded at `20,000/-. The fracture being united, I am of the view that the compensation awarded is justified. - 10 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 10. A sum of `50,000/- towards pain and agony, `60,000/- towards medical expenses, conveyance, nourishment and attendant charges, `42,000/- towards loss of income during laid-up period, `50,000/- towards unhappiness and loss of amenities are all retained. 11. In view of the above, the claimant would be entitled to a total compensation of `5,44,560/- as against `4,90,800/- as mentioned in the table below: Heads Amount in ` Pain and agony 50,000-00 Medical expenses including conveyance, nourishment and attendant charges 60,000-00 Loss of Income during laid-up period 42,000-00 Loss of future earnings 3,22,560-00 Future medical expenses 20,000-00 Unhappiness and loss of amenities 50,000-00 TOTAL 5,44,560-00 12. Accordingly, I pass the following: ORDER i) The appeal is allowed-in-part; ii) The judgment and award dated 17.03.2023 passed by the Chief Judge, Court of small Causes and Member, Principal Motor Accident - 11 - NC: 2025:KHC:2887 MFA No. 5127 of 2023 Claims Tribunal at Bengaluru in M.V.C.No.7538/2019 is modified; iii) The claimant would be entitled to a sum of `5,44,560/- as against `4,90,800/- awarded by the tribunal; iv) The enhanced compensation shall carry interest at the rate of 6% per annum; v) The enhanced compensation amount shall be paid by the respondent No.1 - Insurance Company within a period of four weeks from the date of receipt of a copy of this judgment; vi) The entire enhanced compensation amount shall be released in favour of the appellant- claimant upon proper identification; vii) All other terms and conditions stipulated by the tribunal shall stand intact; viii) Ordered accordingly. Sd/- (PRADEEP SINGH YERUR) JUDGE BMV* List No.: 1 Sl No.: 4