- 1 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 102822 OF 2019 (MV-I) BETWEEN: SHRI. SOMANAGOUDA MADIWALAGOUDA PATIL, AGE 41 YEARS, OCC: AGRICULTURE, (NOW NIL), R/O. DASTIKOPPA, TQ. KITTUR, DIST. BELAGAVI. NOW AT C/O. SHASHIDHAR S. ROTTI, R/O.HIREBAGEWADI, TAL & DIST. BELAGAVI. …APPELLANT (BY SRI. KRISHNA KUMAR JOSHI, ADVOCATE FOR SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. SHRI. SHIVANAGOUDA MADIWALAGOUDA PATIL, AGE 49 YEARS, OCC: AGRICULTURE, R/O. DASTIKOPPA, TQ. KITTUR, DIST. BELAGAVI. 2. THE BRANCH MANAGER, ORIENTAL INSURANCE COMPANY LTD., SANGOLLI RAYANNA CIRCLE, MERCHANTS BANK BUILDING, BAILHONGAL, DHARWAD-580001. …RESPONDENTS (BY SMT. PREETI SHASHANK, ADV. FOR R2; NOTICE TO R1 IS DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MOTOR VEHICLE ACT, PRAYING TO THE JUDGMENT AND AWARD DATED 31.05.2019 PASSED IN MVC NO.160/2018 BY THE SENIOR CIVIL JUDGE AND ADDL. MACT, BAILHONGAL, IN AWARDING THE COMPENSATION OF RS.1,27,114/- AND INTEREST AT RATE OF 9% FROM THE DATE OF PETITION AND MODIFIED BY ENHANCING TO RS.10,72,886/- WITH 18% INTEREST, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) This is claimant’s appeal against the judgment and award dated 31.05.2019 in M.V.C. No. 160/2018 passed by the learned Senior Civil Judge and AMACT, Bailhongal (for short, the ‘Tribunal’). Parties are referred to as per their ranking before the Tribunal. 2. It is the case of the claimant that on 30.08.2017 claimant met with accident due to rash and negligent riding of the motorcycle bearing Reg. No. KA-24-L-7287 by its rider at Bendigeri cross of Hirebagewadi village. As a result of which the claimant sustained injuries. He underwent surgery and was admitted as inpatient in Vijaya Hospital, Belagavi. He spent huge amount towards medical and other expenses. It is further contended that claimant was aged 39 years at the time of accident, was an agriculturist having ten acres of irrigated land and earning Rs.25,000/- per month. Due to the injuries, he - 3 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 has been suffering from permanent disability which is affecting his earning capacity. With these reasons prayed to award compensation of Rs.12 lakhs with interest at the rate of 12% p.a. 3. Both the respondents have appeared and filed their written statements. They denied contention of the claim petitioner. It is further stated by respondent No.2 that it is not liable to indemnify the owner because its liability is restricted to terms and conditions of policy of insurance and holding of valid and effective driving licence by the rider of the motorcycle. With these reasons prayed to dismiss the claim petition. 4. From the rival contentions of the parties, the Tribunal has framed necessary issues. Claimant examined two witnesses as PW1 and PW2 and marked 113 documents as per Ex.P.1 to P.113. Respondents have not led any oral evidence but marked one document as per Ex.R.1. The Tribunal after hearing both parties, appreciating the pleadings and evidence on record awarded compensation - 4 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 of Rs.95,315/- towards loss of future income, Rs.30,000/- towards pain and suffering and Rs.1,800/- towards attendant charges. In all, the claimant was awarded compensation of Rs.1,27,114/-. The Tribunal rejected the claim to award compensation towards loss of future earning capacity because the claimant has examined the Doctor, who has not treated him. Being aggrieved by the same, the present appeal is filed. 5. Heard arguments. 6. Learned counsel for the appellant/claimant submits that claimant sustained fracture which is noted in the case records produced before the Tribunal and to prove disability claimant examined himself as well as PW2, who is an Orthopedic Surgeon. PW2 examined the claimant and assessed difficulties and stated about the disability suffered from the injuries sustained in the accident. It is true that a Doctor who has treated the patient has to be examined. However, for assessment of disability any Doctor having knowledge about the facts is sufficient. He - 5 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 further contends that the evidence of PW2 is in consonance with the wound certificate and medical records produced by the claimant. Under these circumstances the Tribunal ought to have considered the evidence of PW2. 7. The appellant further contended that it is settled law that the evidence of an expert, who has not treated the victim, should not be discarded and it is held that in such cases the evidence of such a witness should be cautiously scrutinized and disability be assessed. According to the medical records, claimant had sustained fracture of right tibia and fibula, said fracture is malunited. This could be seen by the x-ray as well as case file. Same thing was noted by PW2 in his evidence. Therefore ignoring of his evidence is not correct. According to PW2 claimant has been suffering from permanent disability to an extent of 35%. Claimant is an agriculturist. He was aged 43 years. Considering the same, the appropriate amount of compensation be awarded under the head loss of future earning capacity due to permanent disability. - 6 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 8. Appellant further contends that amount of compensation awarded towards pain and suffering is highly inadequate. In all, claimant had sustained three fractures and head injury. They were not at all considered by the Tribunal. The Tribunal has awarded attendant charges only for nine days at the rate of Rs.200/- per day. Other incidental expenses were also not awarded. No amount of compensation is awarded towards laid up period, loss of amenities, etc. According to the evidence of PW2 implants were still available in fractured site, which needs to be removed when it causes difficulty. No amount of compensation is awarded towards future medical expenses. Therefore he prays to award just amount of compensation. 9. Learned counsel for respondent No.2-insurer vehemently contends that whatever compensation amount awarded by the Tribunal is just and reasonable. The claimant could have examined the treated Doctor to prove the injuries as well as disability, if any, by which claimant - 7 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 has been suffering. There is no justifiable reason for not examining the treated Doctor. She further submits that the claimant is said to be an agriculturist holding agricultural lands. Service of the claimant could be substituted by the employees. Therefore there is no question of loss of revenue to the claimant. 10. PW2 has not stated regarding any operation to be undergone by the claimant for removal of the implants. Under such circumstances he is not entitled for compensation towards future medical expenses. I view of the evidence available on record there was no reason to award additional compensation or enhance compensation. With these reasons she prayed to dismiss the appeal. 11. From the contentions of the parties, the following question arises for determination. Whether the claimant is entitled for enhancement of compensation? - 8 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 12. The fact of accident, injuries sustained by the claimant and coverage of insurance are not in dispute. The Tribunal has accepted the evidence of claimant and held that claimant met with vehicular accident and sustained injuries. There is no need to reconsider the same. 13. According to the medical evidence, i.e., evidence of PW2, claimant had sustained fracture of tibia and fibula of right leg, fracture of right proximal phalanx Great toe, multiple facial bone fractures, i.e., fracture of left zygomatic arch, fracture of anterior and lateral wall of left maxillary sinuswith hemosinus and fracture of floor and lateral wall of left orbit. These facts are noted in Ex.P.7, i.e., discharge summary given by Vijaya Ortho and Trauma Centre, wherein he was treated as impatient for eight days from 30.08.2017 to 03.09.2017 and 07.09.2017 to 10.09.2017, X-ray and other particulars are placed on record. PW2 corroborated the said fact in his evidence. Considering the said injuries the amount of - 9 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 compensation awarded towards pain and suffering is on the lower side and needs enhancement. 14. The amount of compensation awarded towards attendant charges, incidental expenses, special diet, etc. are also on the lower side. No amount of compensation is awarded towards laid up period. Looking to the nature of injuries it is difficult to accept that he could do his regular work at least for a period of six months. Therefore, the claimant is entitled for loss of income during laid up period. 15. The Tribunal in paragraph No. 21 considered regarding the point of loss of future earning capacity due to permanent disability but it was rejected on the ground that the Doctor who has treated him has not been examined. The reasons assigned by the Tribunal are not tenable. The medical records of the claimant undoubtedly prove that he had sustained fracture of both bones of right leg along with other fractures. The other fractures may not affect his earning capacity but especially the fracture - 10 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 of tibia and fibula of the right leg definitely affects his efficiency to work. 16. It is settled principle of law that evidence of a non treated Doctor should not be discarded on the contrary it should be appreciated very carefully. The claimant contends that he is an agriculturist owning lands measuring 3 acres 20 guntas as per RTCs at Ex.P.109 to P.111. PW1 and PW2 have deposed about the complaints. Evidence of PW2 disclose that claimant suffered permanent disability to an extent of 35% to the lower limb. 1/3rd of the same is to be considered for assessing permanent disability to the whole body. Therefore, the permanent disability affecting earning capacity of the claimant is considered as 12%. Claimant is said to be aged 39 years. However, the Tribunal assessed his age as 43 years. 17. The claimant in his evidence has stated that he was earning Rs.25,000/- per month from agricultural land. Admittedly except producing RTC the claimant has not - 11 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 produced any material to prove that he was earning Rs.25,000/- per month. Moreover, the land is still continued in the ownership of claimant. But his efficiency might be reduced to work in the agriculture land. Considering the said facts, notional income is to be assessed. As per the chart prepared by the Karnataka State Legal Services Authority, income of the claimant could be considered at Rs.10,250/- per month. The claimant is aged about 43 years. Therefore appropriate multiplier is ‘14’. On the basis of said figures, the compensation towards loss of future income due to permanent disability is calculated as Rs.2,06,640/- (Rs.10,250/-x12x14x12%). 18. Evidence of PW2 and medical records reveal that surgical implants are still continued in the body, i.e., fractured area, which needs to be removed. Therefore some amount of compensation is to be awarded towards future medical expenses. However, the Tribunal has awarded just compensation basing on the material - 12 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 available on record. Future medical expenses that would be awarded is a nominal and not actual. Under these circumstances merely there is no specific word stated by the claimant that implants have to be removed after sometime, cannot be a ground to deny the right of claimant to get said amount of compensation. The total compensation for which the claimant is entitled to is as under: 1. Loss of future income due to permanent disability 2,06,640.00 2. Pain and suffering 60,000.00 3. Medical expenses 96,000.00 4. Attendant charges, special diet and conveyance charges 15,000.00 5. Loss of income during laid up period 61,500.00 6. Loss of amenities and future unhappiness 40,000.00 Total 4,79,140.00 Award of Tribunal 1,27,114.00 Enhancement 3,52,026.00 19. Learned Advocate for insurer vehemently contends that amount of interest awarded by the Tribunal at 9% - 13 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 p.a. is on the higher side and it may be reduced at 6% p.a. 20. The Tribunal at its discretion and appreciating the facts and considering the rate of interest to be charged by the bank on the fixed deposits, must have awarded interest at the rate of 9% p.a. The Tribunal has exercised its discretion while awarding interest, which cannot be held either as irrational or arbitrary. Therefore this Court is not inclined to interfere with the said rate of interest awarded by the Tribunal. However, for the enhanced amount of compensation the claimant is entitled for interest at the rate of 6% p.a. from the date of petition till its realization. 21. It is not in dispute that respondent No.2 is liable to pay compensation. For the aforesaid discussion, the above question is answered partly in the affirmative and proceed to pass the following order. ORDER (1) Appeal is allowed in part; - 14 - NC: 2025:KHC-D:5736 MFA No. 102822 of 2019 (2) Judgment and award dated 31.05.2019 in M.V.C. No. 160/2018 passed by the learned Senior Civil Judge and AMACT, Bailhongal, is modified. (3) The claimant is entitled for enhanced compensation of Rs.3,52,026/- with interest at the rate of 6% p.a. from the date of petition till its realization. (4) Respondent No.2 shall deposit the enhanced compensation amount within a period of six weeks from the date of drawing of award. Order of the Tribunal as regards deposit and release shall apply to the enhanced compensation also. Send back the trial court records along with a copy of the judgment. Sd/- (UMESH M ADIGA) JUDGE BVV/CT-AN List No.: 1 Sl No.: 2