- 1 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR MISCELLANEOUS FIRST APPEAL NO. 6692 OF 2022 (ECA) BETWEEN: CHOWDANAYAKA @ CHOWDAIAH, S/O LATE SIDDANAYAKA @ SIDDAIAH, AGED ABOUT 45 YEARS, R/AT KABINI COLONY, BEECHANAHALLI VILLAGE, ANTHARASANTHE HOBLI, H.D. KOTE TALUK, MYSURU DISTRICT - 571 118. …APPELLANT (BY SMT. SUMA K., ADVOCATE) AND: 1. CHANDRA, S/O LATE PUTTEGOWDA, MAJOR, R/AT CHENNEGOWDANAHUNDI VILLAGE, H.D. KOTE TALUK, MYSURU DISTRICT - 571 114. 2. UNITED INDIA INSURANCE COMPANY LTD., DIVISIONAL OFFICE TP HUB, BALLAL CIRCLE, CHAMARAJAPURAM, MYSURU - 570 005, REPRESENTED BY MANAGER. …RESPONDENTS (BY SRI. L. SREEKANTA RAO, ADVOCATE FOR R2; V/O DTD. 13.11.2024, NOTICE TO R1 IS D/W) Digitally signed by KAVYA R Location: High Court of Karnataka - 2 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 THIS MFA IS FILED U/S 30(1) OF EMPLOYEES COMPENSATION ACT, 1923 AGAINST THE JUDGMENT AND AWARD DATED 14.02.2022 PASSED IN E.C.A NO.1/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., AND MOTOR ACCIDENT CLAIMS TRIBUNAL, H.D. KOTE, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE PRADEEP SINGH YERUR ORAL JUDGMENT This appeal is preferred by the injured appellant/petitioner against the judgment and award passed by the Senior Civil Judge and JMFC, MACT at H.D. Kote in ECA No.1/2020 dated 14.02.2022. This appeal is founded on the premise of inadequate and meager compensation awarded by the Tribunal. 2. Parties to the appeal shall be referred to as per their status before the Tribunal. - 3 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 3. The brief facts of the case are as under: The appellant/petitioner is working as a driver of Tata Winger vehicle bearing Reg.No.KA-04/C-3113 belonging to respondent No.1, as an employee. On 04.09.2019 at 5:40 a.m., when the appellant/petitioner was driving the above said vehicle, he hit the front side of KSRTC bus bearing Reg.No.KA-09/F-5302. Due to the impact of the accident, the appellant/petitioner sustained injuries and he was shifted to Government Hospital, H.D.Kote, wherein he took first aid treatment and thereafter, shifted to K.R.Hospital, Mysuru, where he was treated as an out-patient. In view of the injuries sustained in the road traffic accident, as an employee of respondent No.1 during the employment and in the course of the employment, he filed claim petition seeking compensation for the injuries sustained. Respondent No.1, the employer remained absent and he was placed ex-parte. Respondent No.2, the Insurance Company of the vehicle involved in the - 4 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 accident filed statement of objections denying the claim so made including employment avocation of the appellant/petitioner. 4. On the basis of the materials placed on record, both oral and documentary, the Tribunal passed an award granting compensation of Rs.3,64,000/- along with interest at 6% per annum from the date of petition till the date of payment and fastened liability on respondent No.2 being Insurance Company to be paid within 90 days from the date of the order. 5. Being aggrieved by inadequate compensation awarded, the appellant/petitioner is before this Court seeking enhancement. It is the vehement contentions of the learned counsel for the appellant/petitioner that the judgment and award passed by the Tribunal is inadequate or meager, it is also further contended that the income assessed by the Tribunal is on the lower side, whereas the appellant/petitioner was working as a driver earning more than Rs.15,000/- per month plus additional bata charges, - 5 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 which has been ignored and not appreciated by the Tribunal. Hence, the judgment passed by the Tribunal requires interference and consequently, enhancement. It is also contended by the learned counsel, Smt. Suma K., appearing for the appellant/petitioner that the Tribunal has committed a gross error in not calculating the interest at 12% per annum and has awarded meager interest at 6%, which is erroneous and contrary to the Statute. She further contends that the Tribunal has committed an error in not taking the disability to the extent of 100% in view of the appellant/petitioner being a driver and having incurred injuries to his right toe and left hand wrist. Under these circumstances, she seeks disability to be taken at 100% and award stipulated compensation rather than 34% assessed by the Tribunal. 6. Per contra, the learned counsel, Sri. L. Sreekanta Rao for respondent No.2 - Insurance Company vehemently opposes the submissions and arguments of the learned counsel for the - 6 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 appellant/petitioner. He sustains the order passed by the Tribunal on the ground that there is no material placed by the appellant/petitioner to establish the income. Hence, the Tribunal has rightfully taken the income at Rs.10,000/- as per Gazette Notification. Therefore, there is no requirement of enhancement to the compensation. He also contends that there is no serious injuries, which would affect the future driving capacity of the appellant/petitioner as a driver, as there is no fracture or loss of toe and it is only the fracture of the wrist and the fracture of the right toe, the fracture of distal end of radius and chip fracture of proximal phalanx of great toe right. Under these circumstances, he contends that the compensation awarded is just and reasonable and does not call for interference. 7. Having heard the learned counsel for the appellant/petitioner and the learned counsel for respondent No.2, the substantial question of law that arises for consideration in this case are: - 7 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 (i) Whether the appellant/petitioner is entitled to income at the rate of Rs.15,000/- per month? (ii) Whether the Tribunal is justified in taking the disability at 34% instead of 100% as pleaded? (iii) Whether the Tribunal has committed an error in awarding interest at 6% per annum? 8. The answer to the above; points for consideration are as under: (i) Appellant is not entitled to income @ Rs.15,000/- p.m. The assessment of income of Rs.10,000/- per month taken by the Tribunal is justified. (ii) The disability assessed by the Tribunal at 34% to the appellant/petitioner is justified. (iii) The Tribunal has committed an error in granting interest at 6% per annum instead of 12% per annum. 9. The answer to the above is made for the following reasons as mentioned herein below: 9.1. The occurrence of the accident, involvement of the vehicle, injuries sustained by the appellant/petitioner in the accident are not disputed. The appellant/petitioner being a driver working under - 8 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 respondent No.1 is also not challenged or disputed. However, there is no clarity with regard to whether respondent No.2 - Insurance Company has disputed the income of the appellant/petitioner. Nevertheless, even if there is no such dispute, the onus would lie upon the appellant/petitioner to prove the income as claimed, failing which, the income stipulated by the Employee's Compensation Act, 1923 (hereinafter referred to as 'the Act' for short) by virtue of Gazette Notification, which is amended time and again, would have to be taken into consideration in the case on hand. The appellant/petitioner having not produced any material with regard to proof of income, the Tribunal has taken the income of a skilled person at Rs.10,000/- per month, keeping in mind the avocation of the appellant/petitioner as a driver which is not disputed, though the employer has not come before the Court and affirmed or substantiated the income. Therefore, the income taken by the Tribunal is justified. - 9 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 9.2. The appellant/petitioner has got examined Doctor as PW.2, who has carefully examined and diagnosed the injuries of the appellant/petitioner by stating that the appellant/petitioner has incurred disability of the left upper limb of 21% and disability for right lower limb of 30%, wherein it is also seen that the X-rays depict old united fracture of lower end of left radius with Osteoarthritis changes in left wrist and old united fracture of Proximal phalanx of right great toe. Following the disability, the patient will be having difficulty in lifting weights on left hand, reduced grip and strength on left hand and reduced strength on right leg foot and due to which he will be faced with difficulty in driving vehicles. 9.3. Having considered the evidence of the Doctor, who is an expert in the field of medicine, the disability is taken at 34%. Under these circumstances, under the loss of earning capacity taking the factor at 178.49 and taking into consideration Section 4(1)(b) of the Act, 60% of the salary is taken for assessing the earning capacity - 10 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 and compensation. The compensation would be Rs.10,000/- (178.49 x 34/100 x 60%) i.e., Rs.3,64,000/-. The same does not call for interference and it is retained. 9.4. Coming to the aspect of interest awarded at 6% p.a., by the Tribunal, I am in agreement with the learned counsel for the appellant/petitioner that the interest component taken by the Tribunal is on the lower side, as the interest requires to be awarded at 12% p.a., that is contemplated under Section 4A(3)(a) of the Act, whereas the Tribunal has taken interest at 6% per annum, which is erroneous and contrary to the Statute as stated hereinabove. 10. Under these circumstances, I answer the substantial question of law as discussed hereinabove. Accordingly, I pass the following: ORDER (i) The appeal is allowed-in-part. - 11 - NC: 2025:KHC:1424 MFA No. 6692 of 2022 (ii) The judgment and award passed by the Tribunal is modified. (iii) The appellant/petitioner would be entitled to total compensation at Rs.3,64,000/- along with interest at 12% per annum from the date of the accident till the date of payment by respondent No.2. (iv) The balance compensation amount shall be deposited by respondent No.2 - Insurance company within a period of four weeks from today. (v) The entire amount shall be released in favour of the appellant/petitioner. Sd/- (PRADEEP SINGH YERUR) JUDGE SJK List No.: 1 Sl No.: 27 CT: BHK