- 1 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 23RD DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL M.F.A. NO.103022 OF 2022 (MV-I) BETWEEN: 1. SHRI GURUPUTRAPPA S/O. MALLESHAPPA GADIBIDI, (SINCE DEAD BY HIS LR’S.) 1A. MUKTHA W/O. GURUPUTRAPPA GADIBIDI, AGE: 51 YEARS, OCC: HOUSEWIFE, R/O. KITTUR-591115, TQ. KITTUR, DIST. BELAGAVI. 1B. VINAYKUMAR S/O. GURUPUTRAPPA GADIBIDI, AGE: 30 YEARS, OCC: PRIVATE SERVICE, R/O. KITTUR-591115, TQ. KITTUR, DIST. BELAGAVI. 1C. SWATI D/O. GURUPUTRAPPA GADIBIDI, AGE: 21 YEARS, OCC: STUDENT, R/O. KITTUR-591115, TQ. KITTUR, DIST. BELAGAVI. …APPELLANTS (BY SRI. S. K. NADAMANI, ADVOCATE) AND: SHRI MAHAMMADHUSEN MALIKSAB ATTAR, SINCE DEAD BY HIS LRS. 1. SADIKAHAMAD S/O. MAHAMMADHUSEN ATTAR, AGE: 55 YEARS, OCC: BUSINESS, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 2. NIYAZAHAMAD S/O. MAHAMMADHUSEN ATTAR, AGE: 53 YEARS, OCC: BUSINESS, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 3. SMT. NOORJAHA W/O. ABDULKARIM TALIKOTI, AGE: 49 YEARS, OCC: HOUSEHOLD, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 4. SMT. NAJIM W/O. MAHAMADUSMAN KARADIGUDDI, AGE: 47 YEARS, OCC: HOUSEHOLD, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 5. ILIYAZAHAMAD S/O. MAHAMADHUSEN ATTAR, AGE: 44 YEARS, OCC: BUSINESS, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 6. MAHAMMADYUSUF S/O. MAHAMADHUSEN ATTAR, AGE: 42 YEARS, OCC: PRIVATE SERVICE, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 7. MAHAMMADAPTAB S/O. MAHAMADHUSEN ATTAR, AGE: 40 YEARS, OCC: PRIVATE SERVICE, R/O. SOMAWAR PETH, KITTUR-581115, TQ. KITTUR, DIST. BELAGAVI. 8. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., NO.1663, BHAVANI CHAMBERS, 2ND BUILDING, RAMLING KHIND GALLI, BELAGAVI 590001, DIST. BELAGAVI. …RESPONDENTS (BY SRI. SUBHASH J. BADDI, ADV. FOR R8; NOTICE TO R1 TO R7 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION AMOUNT PAYABLE TO THE APPELLANT BY MODIFYING THE JUDGMENT AND AWARD DATED 01.10.2021 PASSED IN MVC NO.1553/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND ADDL. MACT, BAILHONGAL, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) This appeal is filed by the injured-claimant seeking for higher compensation challenging the judgment and award dated 01.10.2021 passed in MVC No.1553/2017 by the Senior Civil Judge and Addl. MACT, Bailhongal1. 2. Brief facts are that the claimant on 02.06.2017 was proceeding as a pillion rider on motorcycle bearing registration No.KA-22/EJ-2874, at that time, a car bearing registration No.KA-28/M-4932 came from opposite direction in a high speed driven by its driver in a rash and negligent manner dashed to the motorcycle resulting in claimant sustaining grievous injuries. He was provided treatment at Government Hospital, Khanapur. Later at KLE Hospital, Belagavi. He incurred more than Rs.5,00,000/- for treatment and due to the accidental injuries, 1 ‘Tribunal’ for short - 4 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 he suffered permanent physical disability, which caused loss of earning capacity. Hence, he filed this claim petition. 3. The respondent opposed the claim petition by denying the accident, aspect of negligence, age, income and profession of the claimant and sought for dismissal of the claim petition. 4. The Tribunal recorded the evidence of the parties. Claimant examined himself as PW1 and another witness as PW2 and got marked Exs.P1 to P17. The respondent did not adduce evidence, but with consent got marked Ex.R1. The Tribunal on appreciation of the oral and documentary evidence recorded the finding of negligence, liability and awarded compensation of ₹10,09,878/- along with interest at 9% per annum from the date of petition excluding 1 year 3 month. Being aggrieved, claimant is in appeal. 5. Sri S.K.Nadamani, learned counsel appearing for the claimant submits that during the pendency of this appeal claimant has died and the legal representatives of the claimant are brought on record and they are pursuing this appeal. It is - 5 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 submitted that the Tribunal has erred in assessing the income of the injured at Rs.15,000/- per month as the injured was advocate by profession used to earn more than Rs.20,000/- per month, in addition, he had agricultural income. It is submitted that the assessment of disability by the Tribunal is on lower side as per the evidence of PW2, the disability is more than 85% to the right lower limb as his limb was amputed. Hence, he seeks to reassess the same at 100%. It is further submitted that the award of compensation on all other heads is meager and the same is required to be reassessed by allowing the appeal. 6. Per contra, Sri Subhash J.Baddi, learned counsel appearing for the respondent No.8 supports the impugned judgment and award of the Tribunal and submits that no proof of income is produced before the Tribunal. Hence, the Tribunal had rightly assessed the income of the injured at Rs.15,000/- per month, which does not call for any enhancement. It is further submitted that the Tribunal rightly assessed the whole body disability at 27% which is in consonance with the evidence and award of compensation on all other heads is just and proper and - 6 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 does not call for any interference. Hence, he seeks to dismiss the appeal. 7. Heard learned counsel for the claimant, learned counsel for the respondent and meticulously perused the material available on record. The point that arises for consideration is: “Whether the legal heirs of the injured clamant are entitled for higher compensation?” 8. The answer to the above point is in the ‘Affirmative’ for the following reasons: (a) The undisputed facts are that the claimant Guruputrappa was proceeding as a pillion rider on motorcycle bearing registration No.KA-22/EJ-2874, at that time, a car bearing registration No.KA-28/M-4932 came from opposite direction in a high speed driven by its driver in rash and negligent manner and dashed to the motorcycle resulting in claimant sustaining grievous injuries. The said vehicle was insured with the 8th respondent. The claimant was provided - 7 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 treatment at Government Hospital, Khanapur and later at KLE Hospital, Belagavi. The claimant was aged about 50 years at the time of accident and was a practicing advocate at Kittur and Bailhongal Court. It was asserted that the claimant used to earn Rs.30,000/- per month and his family was dependent on the income. Admittedly, there is no legally acceptable evidence to prove the income of the injured. Ex.P9-106 vakalaths filed by the claimant, Ex.P14-enrolment certificate, Ex.P15-certificate issued by the Bar Association, Kittur and Ex.P17 is the sale deed. The averment made in the claim petition, oral evidence of PW1 and aforesaid documentary evidence clearly indicate that the injured was practicing advocate at Kittur and Bailhongal. Taking note of the evidence on record, we are of the view that the injured was a practicing advocate for more than 20 years. Taking note of the same, we notionally reassess the income of the injured at ₹20,000/- per month for the purpose of determination of compensation. - 8 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 (b) The documentary evidence more particularly Ex.P4- wound certificate indicates that the claimant was admitted in KLE Hospital, Belagavi on 02.06.2017 for the crush injuries to his right thigh, cut lacerated wound with swelling on the thigh, right knee joint swelling, tenderness, deformity, right leg crush injuries from below right knee extend to lower 1/3rd region of the right leg, expose bone and muscle. He was discharged from the hospital on 03.07.2017. The wound certificate at Ex.P4 corresponds with the other documentary evidence on record as well as oral testimony of PW2. The records further indicate that the claimant underwent surgical treatment and his right leg above the knee was amputed. Considering the treatment provided to the claimant, amputation and fractures suffered by the claimant, doctor assessed his physical disability to the extent of 85% to the right lower limb as per Ex.P11. PW2 in his deposition clearly explained as to how he has arrived to the said conclusion and his evidence corroborates with the other documentary evidence on record. This - 9 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 Court is required to assess the functional disability of the injured based on the oral and documentary evidence on record. (c) It would be useful to refer the decisions of the Hon’ble Supreme Court in the case of SARNAM SINGH Vs. SHRIRAM GENERAL INSURANCE CO. LTD. AND OTHERS2, the relevant para reads as under: “9. As to how compensation, in case where permanent disability of an injured affects his functional disability, is to be assessed has been considered by this Court, repeatedly. Reference can be made to the judgment of this Court in Mohan Soni vs. Ram Avtar Tomar And Others. In the aforesaid case the injured was working as a cart puller. As a result of the accident, his left leg was amputated. His permanent disability was assessed at 60%. The Tribunal assessed the compensation taking the loss of earning at 50% on the theory that he can still do some other work while sitting. The High Court did not disturb the finding regarding loss of income on account of disability. This Court found that the Tribunal was in error in taking the loss of earning at 50% as the injured was 55 years of age and it may be difficult for him to find a job at that stage. In fact, any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability. The same injury suffered by two different persons may affect them in different ways. Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is 2 2023 LiveLaw (SC) 498 - 10 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 concerned. Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect. This Court enhanced the loss of earning capacity from 50% to 90%.” (d) The similar view has been taken by the Hon’ble Supreme Court in earlier decision also i.e., in the case of K.JANARDHAN Vs. UNITED INDIA INSURANCE CO. LTD. & ANOTHER3. The relevant paragraph reads as under: “4. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.” (e) It would also be useful to refer to the decision of the Hon’ble Supreme Court in the case of PRATAP NARAIN SINGH DEO Vs. SRINIVAS SABATA AND ANOTHER4, wherein the Hon’ble Supreme Court has assessed the disability up to 100% to the Carpenter, who has lost his left hand above elbow. 3 Civil Appeal No.5831 of 2022 disposed off on 09.05.2008 4 (1976) 1 SCC 289 - 11 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 (f) It is also useful to refer the decision of the Hon’ble Supreme Court in the case of JAKIR HUSSEIN Vs. SABIR AND OTHERS5. The relevant paragraph reads as under: “15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctor's evidence in this case, the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55% respectively for the calculation of amount towards the loss of future earning capacity, No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact namely that the appellant is a driver and 5 (2015) SCCR 380 - 12 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. In the case of Raj Kumar vs. Ajay Kumar (supra), this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence, the loss of earning is determined by us at 54,000/- per annum. Thus, by applying the appropriate multiplier as per the principles laid down by this Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 the total loss of future earnings of the appellant will be at ₹ 54,000×168,64,000/-.” (g) Keeping in the mind the enunciation of law laid down by the Hon’ble Supreme Court referred supra, we are of the considered view that the functional disability of the claimant is required to be reassessed based on the oral and documentary evidence on record. The oral testimony of PW2, wound certificate at Ex.P4, disability certificate at Ex.P11 clearly indicate the nature of injuries suffered by the claimant and - 13 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 treatment provided. It is not in dispute that right leg of the claimant above the knee was amputed due to the accident, he was aged about 50 years at the time of accident and due to disability, his earning capacity has substantially reduced which is evident from record and no contrary evidence is placed on record by the respondents to disbelieve the evidence on record. Hence, we propose to reassess the functional disability of the injured claimant at 90% for the purpose of determination of compensation. (h) The injured was aged about 50 years at the time of accident, hence he would be entitled to an addition of 10% under the head of loss of future prospects as we have assessed his functional disability at 90%. Having awarded the compensation under the head of loss of future prospects, the award of compensation under the head of loss of amenities would not arise. The award of compensation by the Tribunal under the head of pain and suffering, medical expenses, towards diet, attendant charges and conveyance is unaltered. The - 14 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 loss of income during laid up period is required to be considered for a period of four months. Hence, the claimant would be entitled Rs.80,000/- under the said head. (i) It would be useful to refer the decision of the Hon’ble Supreme Court in the case of Meena (dead) though LRs v. Prayagraj and others6 held as under: “5. At the outset, the learned counsel for the claimants relied on Oriental Insurance Company Limited v. Kahlon @ Jasmail Singh Kahlon1 to impress upon us that despite the death of the injured, the legal representatives of the deceased can pursue the claim since the property under the Act would have a much wider connotation than the conventional definition and would include the estate left behind by the deceased. It was held that if the legal heirs can pursue claims in case of death, there is no reason to prohibit the legal representatives to pursue claims for loss of a property, akin to estate of the injured, if the injured dies subsequently. We see, absolutely no reason to differ from the declaration of law and the insurer also raises no objection on the same. We would consider the enhancement sought by the original applicant, which if granted before her death would have accrued to her estate or rather compensated the loss of her estate; (2022) 13 SCC 494 caused by reason of the accident, which the legal heirs are entitled to succeed to.” 6 SLP (C) No.12187/2019 - 15 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 (j) In view of the aforesaid decision, the legal heirs of the injured claimant can maintain the appeal seeking for higher compensation. (k) The compensation is reassessed as under: 1 Pain and suffering Rs.50,000/- 2 Medical expenses Rs.2,78,478/- 3 Towards diet, attendant charges, conveyance charges Rs.32,000/- 4 Towards loss of future earning capacity due to permanent disability (Rs.20,000 + 10% x 12 x 11 x 90%) Rs.26,13,600/- 5 Loss of income during laid up period (Rs.20,000 x 4 months) Rs.80,000/- Total Rs.30,54,078/- Compensation awarded by the Tribunal Rs.10,09,878/- Enhanced compensation Rs.20,44,200/- 9. The appellants are entitled to an interest at the rate of 6% on enhanced compensation. Hence, we proceed to pass the following: - 16 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 ORDER i. The appeal is allowed in part. ii. The impugned judgment and award dated 01.10.2021 passed by the Senior Civil Judge and Addl. MACT, Bailhongal, in MVC No.1553/2017, is hereby modified and the appellants are entitled to total compensation of ₹30,54,078/- (enhanced compensation would be ₹20,44,200/-) as against ₹10,09,878/- awarded by the Tribunal. iii. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till date of payment excluding for a period of 1 year 3 months as ordered by the Tribunal. iv. Respondent No.8/Insurance Company shall deposit the compensation amount with accrued interest within a period of eight [8] weeks before the Tribunal. v. The legal heirs of the appellant claimant are entitled to total compensation as under: a. Appellant No.1(A) is entitled to an apportionment of 50% of the compensation amount and appellant - 17 - HC-KAR NC: 2025:KHC-D:12937-DB MFA No. 103022 of 2022 No.1(B) and 1(C) are entitled 25% of the compensation amount each. vi. The Tribunal shall deposit an amount of Rs.3,00,000/- in the name of appellant No.1(A), Rs.2,00,000/- each in the name of appellant No.1(B) and (C) in any nationalized bank in fixed deposit for a period of 3 years. The remaining amount shall be released in their favour. vii. Registry to transmit the records to the Tribunal forthwith. viii. Draw the award accordingly. Sd/- (S.SUNIL DUTT YADAV) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE CLK CT-AN List No.: 1 Sl No.: 34