- 1 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 101682 OF 2016 (MV-I) C/W MFA CROSS OBJ NO. 100163 OF 2016 (MV-I) BETWEEN: M/S. ICICI LOMBARD GENERAL GENERAL INSURANCE COMPANY LIMITED, BY ITS BRANCH BELLARY, REPRESENTED BY LEGAL MANAGER, ICICI LOMBARD GENERAL INSURANCE CO. LTD., IIND FLOOR, BELLAD BUILDING, GOKUL ROAD, HUBBALLI. …APPELLANT (BY SRI. S. K. KAYAKAMATH, ADVOCATE) AND: 1. K. H. RAVICHANDRA ALIAS RAVI S/O. HONNURSWAMY, AGED 28 YEARS, BARBER, R/O. RAJIV NAGAR, 3RD WARD, KOTTUR TOWN, KUDLIGI TALUK, BALLARI DISTRICT. 2. SHAHUD KHAN S/O. AAS MOHAMMED, AGED 32 YEARS, DRIVER OF THE LORRY, R/O. BHARAK VILLAGE, NAGAR TALUK, BHARATPUR DISTRICT, RAJASTHAN STATE. 3. M/S. CHETAK LOGISTICS LIMITED BY ITS MANAGER, Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 OWNER OF THE LORRY, R/O. CHETAK COMPOUND, NEAR APNO GHAR, SIKHOPUR VILLAGE, MANESAR POST, GURGAON DISTRICT, HARYANA STATE, PIN CODE-1222050. …RESPONDENTS (BY SRI. G. R. TURAMARI, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH; NOTICE TO R3 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/SEC.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 03.02.2016 PASSED BY THE SENIOR CIVIL JUDGE CUM MEMBER VI-MACT, KUDLIGI, IN MVC NO.1045/2014, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. IN MFA CROB NO. 100163 OF 2016 BETWEEN: K. H. RAVICHANDRA ALIAS RAVI S/O. HONNUR SWAMY, AGE 28 YEARS, OCC: BARBER, R/O. RAJIV NAGAR, 3RD WARD, KOTTUR TOWN, KUDLIGI TALUK, BALLARI DISTRICT-583135. …CROSS OBJECTOR (BY SRI. GURURAJ R. TURAMARI, ADVOCATE) AND: 1. SAHUD KHAN S/O. AAS MOHAMMED, - 3 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 AGE 32 YEARS, OCC: DRIVER, R/O. BHARAK VILLAGE, NAGAR TALUK, BHARATPUR DISTRICT, RAJASTHAN-321001. 2. M/S. CHETAK LOGISTICS LIMITED BY ITS MANAGER, R/O. CHETAK COMPOUND, NEAR APNO GHAR, SIKHOPUR VILLAGE, MANESAR POST, GURGAON DISTRICT, HARYANA STATE-1222050. 3. ICICI LOMBARD GENERAL INSURANCE CO. LTD., BY ITS BRANCH BALLARI, INSURED AT BRANCH OFFICE ICICI LOMBARD HOUSE, NO.414, VEER SAVARKAR MARG, NEAR SIDDHI VINAYAKA TEMPLE, PRABHADEVI, MUMBAI-4000025. …RESPONDENTS (BY SRI. S. K. KAYAKAMATH, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH; NOTICE TO R3 SERVED) THIS MFA CROB IN MFA NO.101682/2016 IS FILED U/O.41 RULE 22 OF CPC, PRAYING TO CALL THE RECORDS, HEAR THE PARTIES, AND ALLOW THE APPEAL, THE JUDGMENT AND AWARD DATED 03.02.2016 PASSED BY THE SENIOR CIVIL JUDGE CUM MEMBER VI-MACT AT KUDLIGI IN MVC NO.1045/2014 AND MODIFIED BY ENHANCING THE COMPENSATION AS CLAIMED IN THE CLAIM PETITION, WITH COST IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL AND CROSS OBJECTION PETITION, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. Both these appeals arise out of judgment and award dated 03.02.2016 passed by the learned Senior Civil Judge and MACT-VI, Kudlagi (for short, ‘the Tribunal’) in MVC No.1045/2011. Insurer filed MFA No.101682/2016 challenging its liability to pay compensation as well as quantum of compensation. Claimant has also filed MFA Crob.No.100163/2016 for enhancement of compensation. 2. The parties are referred to as per their rankings before the Tribunal. 3. Brief facts of the case are that on 20.01.2014 claimant met with an accident by the lorry bearing registration No.HR/H-8948 driven by its driver in a rash and negligent manner. As a result of which the claimant sustained grievous injuries. He took treatment as inpatient in VIMS Hospital, Ballari and incurred heavy expenses. Claimant was running a barber shop and earning Rs.18,000/- per month. He was aged about 27 years at the time of accident and due to the injury sustained he has - 5 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 been suffering from permanent disability. With these reasons prayed to award compensation of Rs.12,25,000/-. 4. Respondent No.1 is owner, respondent Nos.2 and 3 are the insurer of the offending lorry. 5. Respondent No.1 did not appear. Respondent Nos.2 and 3 together filed a common written statement denying the contention of the claim petition. It is further stated that claim petition is bad for non-joinder of necessary parties. The owner and insurer of the motorcycle are necessary parties. Owner of the offending vehicle violated the terms and conditions of policy of insurance and driver of the said vehicle had no valid and effective driving licence at the time of accident. With these reasons prayed to dismiss the claim petition. 6. The Tribunal framed necessary issues. 7. Claimant in support of his contention examined two witnesses as PWs.1 and 2 and marked 43 documents as per Exs.P1 to P43. Respondents have not examined any witness but marked one document as per Ex.R1. - 6 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 8. The Tribunal after hearing both the parties and appreciating the materials available on record held that accident was due to rash and negligent driving of the lorry by its driver. The Tribunal assessed age of the claimant as 25 years, his earning as Rs.6,000/- per month (however while calculating income, it is mentioned as Rs.8,000/- per month but for assessing total compensation, income was taken as Rs.6,000/- per month), applied the multiplier as 18, assessed disability to the whole body at 30% and awarded following amount of compensation: i. Pain and suffering :Rs. 50,000.00 ii. Medical expenses :Rs.1,16,096.00 iii. Loss of income during laid up period :Rs. 48,000.00 iv. Attendant charges :Rs. 15,000.00 v. Loss of amenities :Rs. 40,000.00 vi. Future medical expenses :Rs. 75,000.00 vii. Loss of future income due to permanent disability :Rs.3,88,800.00 Total :Rs.7,32,896.00 9. Heard the arguments of learned advocates for both the sides. 10. Learned advocate for the appellant submits that the Tribunal has assessed compensation on higher side, disability taken is also on higher side,. Therefore it may be - 7 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 re-considered and just amount of compensation be awarded taking into account permanent disability at the most 8 to 10%. He further submits that the driver of the offending vehicle had no valid and effective driving licence to drive the said class of vehicle at the time of accident. Though the said defence is taken, but the Tribunal has fastened the liability on the respondent/insurer to pay compensation. The said finding is erroneous and prayed to set aside the liability of respondent Nos.2 and 3 to pay compensation. 11. The learned counsel for the claimant contends that the Tribunal though mentioned the income of the claimant as Rs.8,000/- per month, however calculated amount by taking income as Rs.6,000/- per month. As per the chart prepared by the KSLSA it can be taken at Rs.7,500/- per month. The disability assessed by the Tribunal is in accordance with law and on the basis of evidence of PW1 and it does not call for any interference by this Court. He further submits that if driver of the offending vehicle is not having valid and effective driving - 8 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 licence, insurance company shall pay the same and recover it from the owner of the vehicle. He also urges that the amount of compensation awarded under other heads are on lower side therefore prayed to re-calculate the amount of compensation and award just amount of compensation. 12. Fact of accident and injury sustained by the claimant in the vehicle accident is not in dispute and no need to re-consider the same. Claimant had sustained fracture of head of the right femur and fracture of right patella. Oral and documentary evidence led by claimant support the same. Claimant has produced medical records to prove his medical expenses. He has taken treatment as inpatient for 18 days in VIMS Hospital. Considering the said fact, Tribunal assessed the compensation under the head of medical expenses. 13. The main grievance of the learned advocate for the appellant is that Tribunal has taken permanent disability to the lower limb at 30%, which is highly exorbitant and without any basis. He further contends that - 9 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 PW2 in his evidence except quoting percentage of disability has not mentioned anything to arrive at the said figure. In the cross-examination he admits that shortening of the leg and restriction of the movement are not at all stated in the examination-in-chief and moreover he is not a treated doctor. Therefore his evidence is not believable. Therefore the disability taken by the Tribunal at 30% to the whole body is incorrect. 14. Learned counsel for the claimant submits that claimant is running a barber shop and working as barber and he has to stand all the while during business hours. Therefore fracture of femur as well as patella definitely affects his earning capacity. PW1 in his evidence has stated that claimant has been suffering from permanent disability to an extent of 60% to the whole body therefore reduction in the said disability does not arise. The Tribunal has committed an error in taking permanent disability as 30% instead of 60%. Therefore it needs to be re- considered by this Court. - 10 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 15. Looking to the medical evidence as well as X- ray report it appears fracture was united. There is no serious dispute in this regard. For the fracture of right femur, assessment of disability at 60% to the whole body is not in accordance with the ALMCO manual or notification issued by the Health Department of Central Government. Looking to the nature of fracture and nature of the occupation of the claimant, it could be considered as 15% to the whole body. The Tribunal has not assessed properly about the disability affecting earning capacity of the claimant and assessed the disability to an extent of 30%, which is incorrect, which needs to be re-calculated. 16. As rightly submitted by the learned counsel for the claimant thought Tribunal has mentioned the income as Rs.8,000/- per month but while calculating amount it has considered as Rs.6,000/- per month and on that basis compensation was calculated. As per the chart prepared by KSLSA notional income of the claimant could be considered as Rs.7,000/- per month. - 11 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 17. Medical records reveal that age of the claimant was 25 years as on the date of the accident. The learned counsel for the appellant submits that in the claim petition mistakenly and inadvertently it is mentioned as 27 years but all the medical records shows that his age was 25 years at the time of accident. The same was considered by the Tribunal and held that his age was 25 years and there is no need to re-consider the same. Undisputedly the multiplier applicable to the case in hand is 18. On the basis of the said fact, loss of future earning capacity due to permanent disability is determined. 18. The Tribunal has assessed compensation on other heads. However amount of compensation awarded towards incidental expenses, attendant charges and special diet is on lower side. Even the amount awarded towards pain and suffering also requires enhancement. For the aforesaid discussions, following amount of compensation is awarded: i. Pain and suffering :Rs. 60,000.00 ii. Medical expenses :Rs.1,16,096.00 iii. Loss of income during laid up period :Rs. 45,000.00 - 12 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 iv. Attendant charges, spl.diet :Rs. 25,000.00 v. Loss of amenities :Rs. 40,000.00 vi. Future medical expenses :Rs. 75,000.00 vii. Loss of future income due to permanent disability :Rs.2,43,000.00 Total :Rs.6,04,096.00 19. The claimant is also entitled for interest on the said amount of compensation at the rate of 6% from the date of petition till its realization. 20. Learned counsel for the insurer submits that according to the charge sheet, driver of the offending vehicle’s name was Shahud Khan, however the driving licence shows that the said driving licence was belonging to Sandeep Kumar Meena s/o Harisingh and he further submits that the Xerox copy of the driving licence produced before the police by the driver is not belonging to him but it is a forged document. Insurer obtained the copy from the concerned RTO and found that it was belonging to above said person. On that basis, he contends that driver of the vehicle had no valid and effective driving licence. It is not in dispute that the said offending vehicle was insured with insurer and policy was - 13 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 in force. Therefore even if it is considered that driver of the offending vehicle had no valid and effective driving licence then insurer shall pay the compensation and it is at liberty to recover from the owner of the vehicle in appropriate proceedings as held in the case of New India Assurance Co. Ltd., Bijapur Vs.Yallavva w/o. Yamanappa Dharanakeri reported in 2020 (2) AKR 484. 21. For the aforesaid discussions the following order is passed: ORDER i. MFA No.101682/2016 and MFA Crob.No.100163/2016 are allowed in part. ii. The impugned judgment and award dated 03.02.2016 passed in MVC No.1045/2011 by the learned Senior Civil Judge and MACT-VI, Kudlagi is modified. iii. The claimant is entitled for Rs.6,04,096/- as against Rs.7,32,896/- awarded by the Tribunal, with interest at the rate of 6% per - 14 - NC: 2025:KHC-D:5684 MFA No. 101682 of 2016 C/W MFA.CROB No. 100163 of 2016 annum from the date of petition till its realization. iv. Respondent Nos.2 and 3 shall pay the said amount of compensation and it is at liberty to recover it from the owner of the vehicle i.e., respondent No.1 in an appropriate proceedings. v. Respondent Nos.2 and 3 shall deposit the said amount of compensation within six weeks from the date of the award. vi. Deposit and release of the amount is as ordered by the Tribunal. vii. Whatever amount deposited by the appellant before this Court shall be transmitted to the Tribunal. viii. Send the copy of this judgment along with the TCR to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 32