- 1 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 104021 OF 2017 (MV-I) BETWEEN: SRI. RAFIQ AHMED @ RAFIQ S/O. CHAMANSAB YALLAPUR, AGE: 58 YEARS, OCC: CONDUCTOR IN NWKRTC, R/O: PLOT NO. 116, MADHURA CHETANA COLONY, NEAR SBI SCHOOL, KUSUGAL ROAD, HUBBALLI.-590001. …APPELLANT (BY SRI. SACHCHIDANAND. B. P. AND SRI. S MRUTYUNJAYA. S. HALLIKERI, ADVOCATE) AND: 1. SRI. HUSSAINSAB S/O. MAKTUMSAB NAIK, AGE: 34 YEARS, OCC: DRIVER, R/O: NEAR JAMIYAMASJID, AT POST KOTUR, TQ AND DIST: DHARWAD,-590001 DRIVER OF VEHICLE BEARING REGISTRATION NO. KA-25/Z-9499 Digitally signed by SHAKAMBARI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 2. SRI. RASSUL RAJESAB NAIK, AGE: 42 YEARS, OCC: BUSINESS, R/O: AT AND POST KOTUR, TQ AND DIST: DHARWAD,-590001 OWNER OF THE VEHICLE BEARING REGISTRATION NO. KA-25/Z-9499 3. THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, JUBILEE CIRCLE, DHARWAD.-590001 …RESPONDENTS (BY SRI. PUNEET. I. BADIGER, ADVOCATE FOR R1 AND R2, SRI. R. S. ARANI, ADVOCATE FOR R3,) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED 12.4.2017 PASSED IN MVC NO.447/15 ON THE FILE OF 1ST ADDL. SR. CIVIL JUDGE AND ADDL. MACT, HUBBALLI TO ENHANCE THE COMPENSATION FROM RS.1,80,000/- TO RS.35,05,960/- WITH INTEREST OF 24% AND TO DIRECT THE RESPONDENTS TO PAY THE COMPENSATION AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR - 3 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) Claimant-appellant has preferred this appeal seeking enhancement of the compensation awarded by the 1st Addl. Sr. Civil Judge and Addl. MACT, Hubballi (`the Tribunal’ for short) in MVC No.447/15 dated 12.4.2017. 2. Parties to this appeal are referred to as per their rank before the Tribunal. 3. That the claimant-petitioner filed a claim petition claiming compensation under Section 166 of the Motor Vehicle Act on account of injuries suffered by him in a road traffic accident that took place on 26.10.2014 at 3.00 p.m. on KCD Road, near Noukarara Bhavan, Dharwad because of rash and negligent driving of swift car bearing Regn.No. KA- 25-Z-9499 and dashed against the petitioner who was proceeding on KC Road. Because of this accident, he fell down and sustained severe head injuries and other injuries on other parts of his body. Initially he was shifted to Civil Hospital, Dharwad and subsequently, to KIMS Hospital, - 4 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 Hubballi and thereafter, to Balaji Institute of Neuro - Sciences, Hosur, Hubballi. Because of the accidental injuries, claimant has suffered permanent disability and lost his earning capacity. Prior to the accident, he was working as a Conductor in NWKRTC, Dharwad Division, and now he has lost his income and was forced to remain absent to his duties. Respondent Nos.2 and 3 are jointly and severally liable to pay the compensation; therefore, he prayed to award the compensation as prayed. 4. Despite service of notice, respondent nos. 1 and 2 remained absent and were placed exparte. Respondent No.3 appeared through standing counsel and resisted the petition by filing objection statement denying his age, occupation, injuries, income of the petitioner and physical disability. It is contended that, because of the negligence on the part of the claimant, the accident has occurred. There is violation of policy conditions; therefore, respondent no.3 is not liable to pay the compensation. The policy was valid as on the date of accident. It is prayed to dismiss the petition. - 5 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 5. Based upon the rival pleadings, the learned Tribunal framed in all three issues. To substantiate the claim of the claimants, he was examined as PW.1 and Exs.P1 to P23 were marked. Respondent no.3 has not lead any oral evidence but, produced Ex.R1 policy which was marked with consent. 6. The learned Tribunal, on hearing the arguments and on evaluation of the evidence placed on record, held that, because of rash and negligent driving of the offending swift car owned by respondent no.2 insured with respondent no.3, the said accident has taken place. The claimant has suffered fractures as well as other injures and has spent substantial amount towards medical expenses, therefore, it is held that, the claimant is entitled to the compensation in all at Rs.1,78,482/- under the following heads: Sl. No. Heads Amount Rs. 1. Medical Expenses 1,33,482-00 2. Incidental Charges 15,000-00 - 6 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 3. Pain and sufferings 15,000-00 4. Loss of amenities in life 15,000-00 Total 1,78,482-00 7. With regard to the liability, it is held by the Tribunal that, both respondent nos.2 and 3 are liable to pay the compensation, however, directed respondent no.3 to deposit the same. 8. Being aggrieved by the said judgment and award, respondent no.3 has not preferred appeal, thereby, admitted the liability as well as quantum of the compensation. Now the claimant seeks enhancement in compensation. 9. The learned counsel for the claimant would submit that, now the claimant has been demoted to the post of cleaner and he has lost his income because of these accidental injuries. He would submit that, the medical records so produced do suggest about physical impairment suffered by the claimant. He would submit that, the medical records do suggest about number of injuries suffered by him and he has undergone treatment both as in-patient as well - 7 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 as out-patient. He would submit that, the compensation so awarded by the Tribunal is very much meager and under the conventional heads of pain and suffering, the learned Tribunal has not awarded any compensation. Erroneously, though the claimant has produced relevant documents, but, Tribunal has not appreciated the same. Hence, he prays to enhance the compensation as prayed. 10. Per contra, the learned counsel for respondent No.3 Sri R.S.Arani submits that, the Tribunal has rightly considered the injuries suffered by the claimant and rightly awarded the compensation. He would submit that, the doctor who has treated the claimant is not examined and there is no evidence to show the loss of income as observed by the Tribunal and still the claimant is working with the NWKRTC. Therefore, as there is no physical disability suffered by the claimant, he is not entitled for any enhancement in compensation. 11. We have given our anxious consideration to the arguments of both the side and perused the records. - 8 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 12. In view of the rival submissions of both the parties and on perusal of the records, the point that is to be considered in this case is, “Whether the claimant is entitled for any enhancement in compensation as prayed in the appeal?” 13. Our answer to the above point is partly in the affirmative for the following reasons: 14. As per the claimant, he has sustained the following injuries as noticed in Ex.P5. “Head injury (hemorrhagic convulsion involving b.btial temporal loss with sub archael hemorrhage down the face and cortical loci with crack. Right temporal sac with adjacent and cap heamoxima)” 15. According to the Doctor, the injuries are grievous in nature. The treatment in three hospitals as stated above both as inpatient and outpatient is not denied by the respondent. He was at Balaji Hospital as inpatient, so also at - 9 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 Apollo Hospital as per the documents produced by him which are not disputed by any of the respondents much less, respondent no.3. The Apollo Hospital has issued a report i.e. EMG report at Ex.P12. It reveals that, on normal nerve conduction studies (except for prolonged F wave latencies in the peroneal and tibial nerves), needs clinical correlation. A Senior Consultant Neurologist has issued this NCS report. As per Ex.P14 MRI Scanning report the findings of doctor of Apollo Hospital, the claimant has suffered Carvical spine, posterior disc osteophytes complex noted at C4– 5 level causing mild anterior thecal sac indentation, Rest nil significant. Because of these injuries, as per the claimant, he has been demoted from his earlier post. To substantiate the said fact, he has not produced any documents before the Tribunal. The Hubli Scan Centre has issued report as per Ex.P16 wherein the doctor has noticed the physical impairments on his person. These physical impairments must have made the claimants to suffer both physically, mentally and financially. - 10 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 16. After filing this appeal, the claimant has filed I.A.No.1/22 seeking leave of the Court to produce additional evidence and by virtue of these documents such as his service book, pay slips, copy of the order dated 23.12.2015 show that the claimant is still serving with KSRTC. 17. He relied upon a letter addressed to Depot Manager by the Divisional Controller to continue the services of the claimant in the alternative employment. It is not the case of the claimant that, he has been demoted as stated. The documents so produced by him do suggest his continuation of employment and there is no reduction in his salary. He is getting same salary as he was getting prior to the accident. However, looking to the aforesaid injuries suffered by him, so also the medical expenses spent by him, he must have spent substantial money towards other incidental charges. But, the Tribunal has awarded Rs.15,000/- towards incidental charges, pain and suffering 15,000/- and loss of amenities Rs.15,000/-. With all frustrations, inconvenience and with the physical impairment, the claimant has to survive. He cannot work as - 11 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 he was working prior to the accident. Therefore, under all the aforesaid heads, if compensation is enhanced globally, it would meet the ends of justice. But, however, it is made clear that, he is not entitled for interest on the enhanced amount. 18. We have come to the conclusion for awarding enhancement in compensation globally, for the reason that, to prove the disability, the claimant has not chosen to examine the doctor who has examined him. It is fatal to his case. In view of the facts and circumstances brought on record and also the physical impairment suffered by the claimant because of the injuries and the nature of job being carried on by the claimant, it is just and proper to enhance the compensation globally at Rs.1,00,000/- under all the heads like pain and suffering, loss of income during treatment period, loss of amenities in life and also incidental charges like conveyance, nutrition special diet etc. Hence, the appeal filed by the appellant deserves to be allowed in- part by answering the above point in the affirmative. - 12 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 19. Resultantly, we pass the following: ORDER i) Appeal filed by the Appellant/claimant is allowed in-part. ii) Claimant is held entitled for enhancement of compensation globally at Rs.1,00,000/- in addition to Rs.1,78,482/- awarded by the Tribunal i.e., in all Rs.2,78,482/-. iii) Respondent nos. 2 and 3 are jointly and severally liable to pay the compensation, however, respondent no.3 to deposit compensation within six weeks from the date of receipt of a certified copy of this judgment together with interest awarded on the compensation awarded by the Tribunal. iv) The claimant is not entitled for interest on the enhanced compensation of Rs.1,00,000/-. - 13 - NC: 2025:KHC-D:1991-DB MFA No. 104021 of 2017 v) As the amount is meager, it is to be released to the appellant-claimant by the Tribunal to meet his expenses. vi) All pending IA’s if any, are disposed off. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK/ct-vg LIST NO.: 1 SL NO.: 11