- 1 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 11TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO.104166 OF 2018 (MV-I) BETWEEN: CHANDRASHEKAR K. S/O. K.GURUNATHRAO @ HANUMANTHARAO, AGED ABOUT: 38 YEARS, OCC: BUSINESS, R/O: GANGAVATHI, TQ: GANGAVATHI, DIST: KOPPAL. …APPELLANT (BY SRI RAJASHEKAR GUNJALLI, ADVOCATE.) AND: 1. G.ADINARAYAN S/O. G. KONDANNA, AGED ABOUT: 45 YEARS, OCC: DRIVER OF LORRY BEARING NO.AP-21/TY-3108, R/O: EDAVULAPARTHI VILLAGE, BUKKARAYASAMUDRAM MANDAL, DIST: ANANTAPUR, ANDRA PRADESH STATE. 2. MEKAL MALLIKARJUNA S/O. M. KAMBAGIRI RAMUDU, AGED ABOUT: 42 YEARS, OCC: OWNER OF LORRY BEARING NO.AP-21/TY-3108, R/O: 1-162 NEEREDUCHERLA PEAPULLY, KARNOOL ANDRA PRADESH STATE, PIN-518221. 3. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 DIVISIONAL OFFICE, PRIYADARSHANI HOTEL COMPOUND, STATION ROAD, HOSAPETE, DIST: BALLARI. …RESPONDENTS (BY SRI B.D. NARASAGOND, ADVOCATE FOR R1 AND R2; SMT. SHARMILA PATIL, ADVOCATE FOR R3.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO ALLOW THE APPEAL BY ENHANCING THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 09.10.2018 PASSED IN M.V.C.NO.361/2016 BY THE SENIOR CIVIL JUDGE AND M.A.C.T., GANGAVATHI, AND FURTHER TO SET ASIDE THE JUDGMENT AND AWARD TO THE EXTENT OF FASTENING THE LIABILITY ON RESPONDENT NO.2, BY FASTENING THE LIABILITY ON RESPONDENT NO.3 INSURER AND ETC.,. THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S G PANDIT AND THE HON'BLE MR. JUSTICE C.M. POONACHA ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) The present appeal is filed by the claimant challenging the judgment and award dated 09.10.2018, passed in MVC No.361/2016, by the Court of the Senior Civil Judge and MACT, Gangavathi1, on the ground of liability and also seeking enhancement of compensation. 1 Hereinafter referred to as ‘the Tribunal’ - 3 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 2. The parties will be referred to as per their ranking before the Tribunal, for the sake of convenience. 3. The factual matrix in a nutshell leading to the present appeal are that when the claimant along with few others were travelling in a Omni Van bearing registration No.KA-37/M-3215 on Anantpur-Chennai road, a lorry bearing registration No.AP-21/TY-3108 being driven by its driver in a rash and negligent manner, came and hit the vehicle in which the claimant was travelling, causing the accident in question, wherein the claimant sustained grievous injuries. Claiming compensation for the injuries sustained in the accident, the claimant instituted claim proceedings arraying the driver, owner and insurer of the lorry as respondents No.1 to 3 before the tribunal. The respondents No.1 and 2 were placed exparte. The 3rd respondent insurer contested the claim proceedings. 4. The tribunal by its judgment and award dated 09.10.2018, partly allowed the claim petition along with various other connected claim petitions and awarded a total compensation of ₹9,13,227/- together with interest @ - 4 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 6% p.a. and ordered the 2nd respondent to pay the compensation awarded. The tribunal recorded a finding that the driver of the lorry had licence to drive Light Motor Vehicle2 (Transport), but did not have necessary endorsement to drive a Heavy Motor Vehicle i.e., the lorry. Hence, the tribunal held that the 3rd respondent insurer is not liable to pay the compensation awarded and that owner of the vehicle is liable to pay the compensation. 5. Being aggrieved, the claimant has filed the present appeal challenging the judgment and award of the tribunal on the ground of liability as well as seeking for enhancement of compensation awarded. 6. Learned counsel Sri Rajashekhar Gunjalli, appearing for the appellant/claimant contended that since the driver of the lorry was holding a driving licence to drive a LMV (Transport) and although he did not have necessary licence to drive a Heavy Motor Vehicle, the insurer is liable to pay the compensation awarded with liberty to recover the 2 Hereinafter referred to as ‘LMV’. - 5 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 same from the owner of the vehicle, having regard to the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Swarnsingh3. It is further contended that the tribunal has assessed the disability of the claimant on the lower side. It is further contended that the quantum of compensation awarded on other heads is also on the lower side and is liable to be enhanced. 7. Per contra, learned counsel Smt.Sharmila Patil, appearing for the 3rd respondent insurer justifies the finding of the tribunal both on liability and quantum of compensation and seeks for dismissal of the appeal. 8. The submissions of the learned counsels have been considered and material on record including the records of the tribunal have been perused. 9. The questions that arise for consideration are: i) Whether the tribunal was justified in exonerating the insurer from payment of compensation? 3 (2004) 3SCC 297. - 6 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 ii) Whether the quantum of compensation awarded by the tribunal is liable to be enhanced? 10. Reg. question No.1:- The factual matrix with regard to the driver of the offending lorry not having requisite licence to drive the lorry is undisputed in as much as the driving licence of the driver (Ex.P.7) demonstrates that the driver was holding licence to drive LMV (Transport) and was not authorized to drive a Heavy Motor Vehicle. Hence it is clear that the driver was not having licence to drive insured lorry as on the date of accident. However, having regard to the judgment of the Hon’ble Supreme Court in the case of Swarnsingh3, the insurer is required to pay the compensation awarded, with liberty to recover the same from the owner of the vehicle. Hence, the 1st question framed for consideration is answered in the negative. 11. Reg. question No.2:- The claimant was aged 36 years as is forthcoming from the Aadhar Card (Ex.P.87). It is forthcoming from the wound certificate (Ex.P.88), disability certificate (Ex.P.89) and discharge summary (Ex.P.90) that - 7 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 the claimant sustained comminuted fracture mid 1/3rd of the right and left femur apart from abrasions all over the body. The claimant was treated as an inpatient from 26.12.2015 to 06.01.2016 i.e., for a period of 11 days. The evidence of doctor PW.9 and the disability certificate (Ex.P.89) discloses that the fracture of right and left femur is malunited, that there is wasting of muscles of the right and left thigh and the left leg and right leg of the claimant are shortened by one centimetre and half centimetre respectively. The doctor has deposed that the claimant has a whole body disability of 30-32% and 40-42% disability of the particular limb. The tribunal considering the same has assessed the disability at 10% to the whole body which is erroneous. Having regard to the fact that the doctor has deposed that the claimant has disability of 42-44% to the particular limb, it is just and proper to assess the whole body disability as 14%. 12. The claimant has averred in the claim petition that he is carrying on business and has monthly income of Rs.40,000/-. However in the evidence the claimant has produced statement of income and income tax returns as - 8 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 Exs.P.96 to 102 to show that he was earning Rs.13,20,164/- per annum. However, the same has been disbelieved by the tribunal. Learned counsel for the claimant does not dispute that assessment of the income of the claimant at Rs.40,000/- per month. Hence, the loss of future earning capacity is re-assessed as Rs.10,08,000/- (Rs.40,000 (income) x 12 (months) x 15 (multiplier) x 14% (disability). 13. Having regard to the nature of injuries sustained, and the period of treatment, it is just and proper that the compensation towards pain and suffering is re-assessed as Rs.50,000/- as against Rs.10,000/- awarded by the tribunal. 14. Having regard to the nature of injuries and the resulting disability, it is just and proper that the loss of amenities is re-assessed as Rs.50,000/- as against Rs.10,000/- awarded by the tribunal. 15. The period of treatment is taken as three months and accordingly the loss of income during treatment is re-assessed as Rs.1,20,000/- (Rs.40,000 x 3 months). - 9 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 16. Having regard to the period during which he was treated as an inpatient, it is just and proper to award a compensation of Rs.20,000/- towards food, nutrition attendant charges and conveyance as against Rs.10,000/- awarded by the tribunal. 17. The tribunal has awarded a sum of Rs.1,63,227/- towards medical expenses which is as per the actual bills produced. Hence the said compensation is just and proper and left unaltered. 18. In view of the same, the compensation is re-assessed as follows: Sl. No. Heads Amount awarded by the Tribunal (₹) Amount awarded by this Court (₹) 1. Loss of future income. 7,20,000 10,08,000 2. Pain and suffering. 10,000 50,000 3. Loss of amenities. 10,000 50,000 4. Diet, nourishment, attendant charges and conveyance. 10,000 20,000 5. Medical expenses. 1,63,227 1,63,227 6. Loss of income during treatment. - 1,20,000 Total: 9,13,227 14,11,227 - 10 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 19. Hence, the claimant is entitled to enhanced compensation of Rs.4,98,000/- (Rs.14,11,227/- minus Rs.9,13,227). Hence, the 2nd question framed for consideration is answered in the affirmative. 20. In view of the aforementioned, the following: ORDER i) The appeal is partly allowed. ii) The judgment and award dated 09.10.2018, passed in MVC No.361/2016, by the Court of the Senior Civil Judge and MACT, Gangavathi, is modified to the extent of holding that the claimant is entitled to a further compensation of ₹4,98,000/- together with interest @ 6% p.a. from the date of petition till the date of payment in addition to the compensation awarded by the Tribunal. It is further ordered that the 3rd respondent insurer is liable to pay the compensation awarded, with a liberty to recover the same from the owner of the offending vehicle. - 11 - NC: 2025:KHC-D:4639-DB MFA No. 104166 of 2018 iii) The judgment and award of the Tribunal in all other respects is remain unlatered. iv) The 3rd respondent insurance company shall deposit the compensation within six weeks from the date of receipt of a copy of this judgment. v) Modified award to be drawn accordingly. vi) Records of the Tribunal shall be returned forthwith. Sd/- (S G PANDIT) JUDGE Sd/- (C.M. POONACHA) JUDGE MRK CT: UMD. List No.: 1 Sl No.: 15