- 1 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA MISCELLANEOUS FIRST APPEAL NO. 5580 OF 2023 (MV-I) BETWEEN: MRS. SHANTHA, W/O. BASAPPA KATAPUR, AGED ABOUT 36 YEARS, R/AT H NO. 196, BALUTAGI, KOPPAL, KASHTAGI TALUK, KARNATAKA-584 112. PRESENTLY R/AT D. NO. 153/2, ADITHRI, ABBAKKANAGAR, KOTTARA CHOWKI, ASHOKNAGAR POST, MANGALURU, D.K. DISTRICT-575 012. …APPELLANT (BY SRI RAVISHANKAR SHASTRY G, ADVOCATE [PH]) AND: 1. MR. SULTHAN KHAN, S/O LUNE KHAN, ADULT, R./AT KALRA, KALRAN, HOPARDI PHALODI, JODHPUR, RAJASTHAN-342 001. 2. THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL OFFICE, SHREE KRISHNA PLAZA, 100 FEET ROAD, SHOBHAGPURA, UDAIPUR, RAJASTHAN. REP. BY ITS DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., BEAUTY PLAZA, BALMATTA ROAD, MANGALURU TALUK, D.K. DISTRICT-575 003. …RESPONDENTS (BY SRI ASHOK N PATIL, ADVOCATE FOR R-2 [PH]; Digitally signed by NIRMALA DEVI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 NOTICE TO R-1 IS DISPENSED WITH V/O DATED 17.08.2023) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 06.05.2023 PASSED IN MVC NO.362/2022 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AND MACT-II, MANGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE C.M. POONACHA ORAL JUDGMENT The above appeal is filed by the claimant challenging the judgment and award dated 06.05.2023 passed in MVC No.362/2022 by the I Additional District Judge and MACT- II, D.K., Mangaluru1 claiming enhancement in the quantum of compensation. 2. For the sake of convenience, the parties herein are referred as per their ranking before the Tribunal. 3. The relevant facts in a nutshell leading to the present appeal are that on 13.11.2021, the claimant while walking on the road to board a bus on NH-73 near 1 Hereinafter referred to as the ‘Tribunal’ - 3 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 Nanthoor Circle, Mangaluru Taluk, near Bikarnakatte Bus Stand, a Truck driven by its driver in a rash and negligent manner came and hit her from behind causing the accident in question, whereunder she sustained grievous injuries. Claiming compensation for the injuries sustained, the claimant filed a claim petition arraying the owner and insurer of the truck as respondent Nos.1 and 2, respectively before the Tribunal. The owner of the truck remained ex-parte and the insurer contested the claim proceedings. The claimant examined herself as PW.1, her employer as PW.2, a witness as PW.3 and Doctor as PW.4. Exs.P1 to P21 have been marked in evidence. The insurer marked the policy of insurance as Ex.R1. The Tribunal by judgment and award dated 06.05.2023, awarded a sum of `28,55,125/- together with interest at the rate of 6% per annum on 25,22,800/- by excluding levy of interest on `3,32,325/- being the amount awarded towards purchase of prosthesis. Being aggrieved, the claimant has preferred the above appeal claiming enhancement of compensation. - 4 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 4. Heard the submissions of Sri.Ravishankar Shastry G., learned counsel for the appellant/claimant and Sri.Ashok N. Patil, learned counsel for respondent No.2/insurer. 5. Learned counsel for the appellant/claimant submits that the disability of 70% assessed by the Tribunal is on the lower side having regard to the fact that, due to the injuries sustained in the accident, right leg of the claimant was amputated above the knee. It is further contended that the Tribunal has not assessed the 'future prospects' while awarding compensation towards the 'loss of future earning due to disability'. It is further contended that the Tribunal having accepted the fact and having awarded compensation for fixing of an artificial limb, ought to have awarded 'future medical expenses', in view of the fact that the claimant will have to replace the artificial limb periodically. 6. Per contra, learned counsel for respondent No.2/Insurer justifies the award of compensation and - 5 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 contends that the Tribunal has considered all the aspects of the matter and awarded appropriate compensation, which ought not to be interfered with by this Court in the present appeal. 7. The submissions of learned counsel for the claimant and insurer have been considered and the material on record including the records of the Tribunal have been perused. 8. It is forthcoming from the Wound Certificate (Ex.P3), the Discharge Summary (Ex.P13), the Disability Certificate (Ex.P14) and testimony of the Doctor/PW.4 that the claimant sustained injuries on her right lower limb as well as minor injuries on the left leg. The right lower limb has been amputated above the knee. The claimant was treated as an inpatient from 13.11.2021 to 29.12.2021, i.e., for a total period of 48 days. The Doctor has assessed the disability as 80% to the right lower limb. PW.4 who has assessed the disability has also deposed regarding the injuries sustained, nature of treatment as well as the - 6 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 resultant disability. The Tribunal while considering the same has assessed the whole body disability at 70%. 9. The claimant has deposed that she was Coolie doing construction work and earning a sum of `20,150/-. PW.2, who is the employer of the claimant has been examined and he has deposed that the claimant has been employed with him for 15 years and that he was paying a sum of `20,150/-. The Tribunal considering the same has noticed that apart from the oral testimony of PW.2, no documents have been produced to prove the income of the claimant. Hence, the Tribunal has assessed the income as notional income in a sum of `15,000/-. 10. Although it is the vehement contention of the learned counsel for the appellant that having regard to the testimony of PW.2, the income is required to be awarded at a higher amount, having regard to the fact that the claimant has not produced any documentary evidence to - 7 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 prove the income, the assessment of the income by the Tribunal is just and proper. 11. However, the Tribunal has assessed the whole body disability at 70%. Having regard to the fact that the right leg of the claimant has been amputated above the knee, keeping in mind the totality of the consequential effect of the same, it is just and proper that the whole body disability for the purpose of assessing the loss of earning capacity be re-assessed as 75%. 12. Since the disability has been re-assessed as 75%, future prospects is required to be awarded while calculating the income of the claimant. Keeping in mind the age of the claimant, 40% is taken as 'future prospects'. Hence, the income of the claimant is re- assessed as `21,000/- (`15,000 + 40%). Hence, the 'loss of future earning capacity due to disability' is reassessed at `28,35,000/- (`21,000 X 12 X 15 X 75%) as against `18,90,000/- assessed by the Tribunal. - 8 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 13. The Tribunal has awarded a sum of `3,32,325/- towards prosthesis charges. The claimant has examined PW.3 who is a Prosthetist and Orthotist who has deposed that the company where he is employed provides artificial prosthesis. The quotation (Ex.P15) which has been marked through PW.3 discloses the total cost of prosthesis as `3,32,325/- which has been awarded by the Tribunal. 14. Although it is the vehement contention of the learned counsel for the Insurer that Ex.P15 is only a quotation and the same has not been purchased by the claimant, the said contention is required to be rejected having regard to the fact that the insurer has not filed any appeal as also since the right leg of the claimant having been amputated above the knee and artificial limb is required to be fixed to enable the claimant to continue to walk in an attempt to move about normally. It is further relevant to note that PW.3 has stated that the artificial limb will have to be changed once in 10 years and the socket of the artificial limb will have to be changed every - 9 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 02 years, which is forthcoming from Ex.P15 wherein it is shown that socket and fabrication charges is a sum of `35,000/-. 15. There is a merit in the contention of the claimant that 'future medical expenses' is required to be awarded having regard to the fact that consequent to the fixing of an artificial limb the claimant will have to bear certain expenses towards the upkeep and maintenance of the same. Keeping in mind the fact that the claimant was aged 36 years as on date of the accident and she will have to use an artificial limb for a long period of time, it is just and proper that a sum of `1,00,000/- be awarded towards 'future medical expenses'. 16. The Tribunal has appreciated the factual matrix of the matter and awarded adequate compensation on all other heads and no interference in the same is warranted in the present appeal. - 10 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 17. Accordingly, the total compensation under various heads is re-assessed as follows: Sl. No. Heads Amount awarded by the Tribunal (`) Amount awarded by this Court (`) 1. Medical Expenses 2,92,800/- 2,92,800/- 2. Loss of earning during period of treatment and hospitalization 90,000/- 90,000/- 3. Pain and suffering 1,00,000/- 1,00,000/- 4. Conveyance and attendant charges nourishment and diet food 50,000/- 50,000/- 5. Loss of future amenities 1,00,000/- 1,00,000/- 6. Loss of future earnings due to disability 18,90,000/- 28,35,000/- 7. Prosthesis charges 3,32,325/- 3,25,325/- 8. Future medical expenses - 1,00,000/- Total 28,55,125/- 38,93,125/- 18. Hence, the appellant/claimant is entitled to enhanced compensation of `10,38,000/- (`38,93,125 – `28,55,125) together with interest at 6% p.a. 19. In view of the aforementioned, the following: - 11 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 ORDER i) The appeal is allowed in part; ii) The judgment and award dated 06.05.2023 passed in MVC No.362/2022 on the file of I Additional District Judge and MACT-II, D.K., Mangaluru, is modified to the extent stated herein. In all other respects, the judgment and award of the Tribunal remain unaltered; iii) The appellant/claimant is entitled to enhanced compensation of `10,38,000/- with interest at 6% per annum from the date of petition till its realization in addition to the compensation awarded by the Tribunal. iv) Respondent No.2 – Insurance Company is directed to deposit the said compensation together with accrued interest within a period of six weeks from the date of receipt of a copy of this judgment; v) After deposit, the entire enhanced compensation with accrued interest shall be disbursed to the appellant/claimant; - 12 - NC: 2025:KHC:8075 MFA No. 5580 of 2023 vi) The Registry to draw the modified award accordingly. vi) No costs. Sd/- (C.M. POONACHA) JUDGE NR/- List No.: 38 Sl No.: 7