- 1 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA MISCELLANEOUS FIRST APPEAL NO.6228 OF 2021(MV-I) BETWEEN: SMT. MALATHI, W/O RAGHURAM KULAL, AGED ABOUT 32 YEARS, R/O AREKALJEDDU, RATTADI VILLAGE, KUNDAPURA TALUK-576 201. …APPELLANT (BY SRI. NAGARAJA HEGDE, ADVOCATE) AND: 1. MANAGING PARTNER, DURGAMBA MOTORS, NH-66, HANGLURU VILLAGE, KUNDAPURA TALUK-576 201. 2. NEW INDIA ASSURANCE CO. LTD., BRANCH OFFICE: 1ST FLOOR, PUSHPA BUILDING, MAIN ROAD, KUNDAPURA TALUK-576201 REP. BY ITS BRANCH MANAGER …RESPONDENTS (BY SRI. RAJASHEKAR N., ADVOCATE FOR R1; SMT. LATA PRASAD, ADVOCATE FOR R2) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 24.01.2020 PASSED IN Digitally signed by AASEEFA PARVEEN Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 MVC NO. 371/2017 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA ORAL JUDGMENT This appeal is the outcome of the order that is rendered by the Motor Accident Claims Tribunal, Udupi in MVC No.371/2017 dated 24.01.2020. This is a claimant's appeal. 2. On the ground that she sustained grievous injuries in a road traffic accident and thereby became completely and permanently disabled, the appellant filed a petition claiming compensation of Rs.10,85,000/- in total. The Tribunal through the impugned order awarded a sum - 3 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 of Rs.1,87,000/- as compensation. Dissatisfied with the sum thus awarded, the present appeal is filed. 3. Heard Sri.Nagaraja Hegde, learned counsel for the appellant and Sri.Manjunath.K who represented Sri.Rajashekar.N, learned counsel on record for respondent No.1. Also heard Smt.Lata Prasad, learned counsel for respondent No.2. 4. The matrix of the case as projected by the appellant before the Tribunal is that on 16.08.2016 while she was proceeding in a bus bearing registration No.KA.51.B.3130, the driver of the said bus drove the same in a rash and negligent manner and ultimately lost control over the bus due to which the bus toppled and many inmates of the bus including her sustained injuries. 5. The version of the appellant is also that she took treatment as inpatient, underwent surgery also. She was advised to take complete bed rest for a period of 3 months. She was working as staff nurse at SDM Hospital, - 4 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 Dharwad. After leave period, she joined the duty and during the course of attending the duty as staff nurse, while she was lifting a heavy patient, the implant of clavicle gave away and therefore, she underwent operation again. Thus she was unable to attend her duties and therefore, resigned the job. 6. Arguing the matter, learned counsel for the appellant submitted that the movements of right shoulder became restricted due to the injury sustained and whenever the appellant was using her right hand, she suffers pain over the clavicle. The disability as assessed by Pw.2 which is permanent in nature is 27%. The appellant resigned the job as she was unable to perform the duties due to the injury sustained. The appellant is required to lift patients while performing her duties as a nurse but she was unable to do so and therefore, having no other go she tendered her resignation. Therefore, she lost job due to the injury sustained to her right shoulder. However without appreciating the said fact, the Tribunal awarded - 5 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 meager sum as compensation and indeed the Tribunal did not award any amount as compensation towards loss of future earnings. Learned counsel further submitted that the compensation granted under all other heads is also grossly low. Learned counsel thereby sought for enhancement of compensation. 7. The submission that is made by the learned counsel for respondent No.1 is that the insurance policy stood in force as on the date of accident and therefore, it is for respondent No.2 to pay the sum that is awarded as compensation. 8. Learned counsel for respondent No.2 stated that though the appellant sustained injury to her right hand, after the surgery, she recovered from illness and therefore, she was discharged from the hospital. Learned counsel further submitted that the appellant joined her duty after complete recovery and she also produced fitness certificate. Thus there is no loss of future earnings. Further the appellant who submitted fitness certificate - 6 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 while joining the duty cannot claim that she resigned from job due to the injury sustained. Therefore, the present appeal is not maintainable. 9. It is not in dispute that the appellant met with an accident on 16.08.2016 and got admitted into Adarsha hospital on the same day. Ex.P3 - Wound Certificate discloses that the appellant sustained fracture of right clavicle. The contents of Ex.P9 - Disability Certificate reveals that the appellant was discharged on 19.08.2016 with an advice to take rest for 3 months. There is also a mention that in April while lifting a heavy patient the implant gave away and therefore, she had to get operated again. There is further mention that she was examined and the examination revealed that there is permanent disability of 27% in respect of right upper limb. The fact that the appellant underwent a surgery immediately after the accident with ORIF and tubular plate fixation is clear by the contents of Ex.P10 - Discharge summary. As per the contents of Ex.P11, the appellant was admitted at SDM - 7 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 College of Medical Sciences and Hospital, Sattur on 25.04.2017 with complaint over right shoulder. It was diagnosed that there was non-union of mid shaft clavicle fracture with implant failure. Therefore, a surgery was conducted under general anesthesia. Thus the appellant succeeded in establishing that she underwent 2 surgeries and both are connected to the injury sustained to the right clavicle during the course of accident. Learned counsel for respondent No.2 placed much reliance upon the contents of Ex.R2 - Medical Certificate which was issued by SDM College of Medical Sciences and Hospital, Sattur. However, the contents of Ex.R2 - Medical Certificate reveals a mention that appellant is unfit to resume her duty. The contents of Ex.R3 - Medical Certificate does not state in clear terms whether the appellant is fit to resume her duty or unfit to do so. 10. Ex.P22 is the resignation letter. Through Ex.P22, the appellant informed her employer that she wants to discontinue her job because of her health - 8 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 problem as she met with an accident and underwent surgery. By the contents of Ex.P14 - relieving order it is clear that the resignation tendered by the appellant was accepted and she was relieved from her duty with effect from 21.10.2017. Having produced all the said evidence, the appellant succeeded in establishing that due to the injury sustained, she felt difficulty to perform her duties and therefore, she tendered resignation. However, the contents of Ex.P9 - Disability Certificate goes to show that the disability assessed in respect of upper limb of the appellant is only 27%. Therefore, this Court is not inclined to accept the version of the appellant that the disability is required to be taken as 100%. The disability being 27% to the right upper limb, it comes to 9% in respect of whole body i.e., 1/3rd of 27%. 11. Learned counsel for the appellant also made a submission that the salary that was taken by the Tribunal for assessment of compensation i.e., Rs.19,010/- is unfair. Learned counsel submitted that the appellant was earning - 9 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 Rs.21,010/- p.m. by the date of accident and therefore, the said figure should have been considered by the Tribunal. Ex.P19 - 5 Salary slips pertain to the appellant. For the month of May 2017 as per the contents of Ex.P19, the appellant was paid Rs.21,010/-. On deducting Rs.200/- which was paid towards professional tax, the salary of the appellant per month should be taken as Rs.20,810/- for the purpose of assessment of compensation. Therefore, the Tribunal ought to have considered the salary of the appellant as Rs.20,810/- for the purpose of assessment of compensation. As per the contents of Ex.P23 – Service book extract, the appellant was born on 01.06.1984. The date of accident is 16.08.2016. Therefore, it is clear that the appellant was aged about 32 years by the date of accident. Thus 50% of the actual earnings are required to be added towards future prospects as per the decision of the Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others reported in (2017) 16 SCC 680, as the appellant was on permanent job. Also the - 10 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 multiplier which is required to be applied as per the decision of the Hon’ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another reported in AIR 2009 SC 3104 is ‘16’. With these parameters, the loss of future earnings on calculation is as under: Monthly income Rs.20,810/- Annual income Rs.2,49,720/- On adding 50% towards future prospects Rs.3,74,580/- On applying appropriate multiplier 16 Rs.59,93,280/- Permanent physical disability in respect of whole body being 9%, loss of future earnings is Rs.5,39,395/- 12. Therefore, the appellant is entitled to a sum of Rs.5,39,395/- under the head loss of future earnings. 13. The compensation that is granted by the Tribunal under all other heads is reasonable. Therefore, this Court considers desirable to allow the appeal in part - 11 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 by granting a sum of Rs.5,39,395/- as compensation under the head loss of future earnings which the Tribunal failed to award. 14. Therefore, the appeal is disposed of with the following: ORDER (i) The appeal is allowed in part. (ii) The compensation that is granted by the Motor Accident Claims Tribunal, Udupi through orders in MVC No.371/2017 dated 24.01.2020 is enhanced by Rs.5,39,395/-. This amount will be in addition to the sum that is awarded by the Tribunal as compensation. (iii) The enhanced sum shall carry interest at the rate of 6% p.a. from the date of petition till the date of deposit. (iv) Respondent No.2 is directed to deposit the enhanced sum within a period of 8(eight) - 12 - NC: 2025:KHC:7247 MFA No. 6228 of 2021 weeks from the date of receipt of copy of this order. (v) On such deposit, the appellant is permitted to withdraw the entire amount. Sd/- (DR.CHILLAKUR SUMALATHA) JUDGE NS CT:TSM List No.: 1 Sl No.: 51