- 1 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO. 100816 OF 2015 (MV-I) BETWEEN: SHRI. OMKAR S/O. PREMANAND VERNEKAR, AGE 22 YEARS, OCC: STUDENT AND GOLDSMITH, R/O. CTS NO.1650/B, HINDWADI, BELAGAVI. …APPELLANT (BY SRI. SANJAY S. KATAGERI, ADVOCATE) AND: 1. SHRI. MAHADEV S/O. RAMAPPA HUKKERI, AGE 44 YEARS, OCC: AGRICULTURIST, R/O. MUGALKHOD, TAL: RAIBAG, DIST: BELAGAVI. 2. BAJAJ ALLIANCE GENERAL INSURANCE CO. LTD., G. E. PLAZA, AIR PORT ROAD, YARWADA, POONA-111006. THROUGH ITS AUTHORIZED AGENT, THE MANAGER, ELITE INSURANCE SERVICE, MUJAWAR ARCADE, NEAR K.L.E. DENTAL COLLEGE, NEHRU NAGAR, BELAGAVI-590001. …RESPONDENTS (BY SRI. M. K. SOUDAGAR, ADV. FOR R2; NOTICE TO R1 IS SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 24.11.2014 PASSED IN MVC NO.1094/2013 ON THE FILE OF THE PRESIDING OFFICER FAST TRACK COURT-III COURT BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL, COMING ON FOR ADMISSION, 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:4946 MFA No. 100816 of 2015 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. This is claimant’s appeal calling in question the judgment and award dated 24.11.2014 passed in M.V.C No.1094/2013 on the file of FTC-III Court, Belagavi. 2. The appellant/claimant filed petition under Section 166 of the Motor Vehicles Act contending that on 21.04.2013 around 1.30 p.m., when he was proceeding on his motorcycle bearing Reg.No.KA-22/EG-9910 towards Chidambar nagar cross road, Belagavi, he met with an accident by the Maruti Car bearing Reg.No.KA-23/M-8394, driven by its driver in rash and negligent manner; as a result of which, he fell down and sustained grievous injuries. He took treatment at Apoorva Hospital, Belagavi as inpatient from 21.04.2013 to 01.05.2013 and spent more than Rs.15,000/-. He further contended that he was aged about 15 years at the time of accident and studying B.Com. He was assisting his father, who is a goldsmith by - 3 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 profession and was earning Rs.15,000/- p.m. For all these reasons, he prayed to award compensation. 3. Respondent No.1 is the owner of the Car, has denied the contention of the claimant and prayed to dismiss the claim petition. 4. Respondent No.2-insurer also denied all the contention of the claim petition and further contended that accident had taken place due to rash and negligent riding of motor cycle by its rider as well as the driver of the car. Owner and insurer of the motorcycle are necessary party. Liability of the respondent No.2 is restricted to the terms and conditions of the policy of insurance. With these reasons, prayed to dismiss the claim petition. 5. The Tribunal framed necessary issues. 6. Claimant to prove his case examined three witnesses as PWs.1 to 3 and got marked 19 documents as Exs.P1 to P19. The respondents examined two witnesses as RW1 and RW2 and got marked 17 documents as Exs.R1 to R17 and closed their evidence. The Tribunal after hearing both the parties, appreciating pleading and - 4 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 evidence available on record, held that the accident had taken place due to contributory negligence of rider of the motorcycle as well as driver of the car. 7. The Tribunal held that claimant had sustained fracture of 1/3rd of medial shaft of tibia and fibula of left leg and minor injuries. His notional income was taken as Rs.6000/- p.m. and his age was taken as 20 years. The permanent disability was taken at 8% to whole body and awarded following amount of compensation: i. Loss of future earning : Rs.1,03,680.00 ii. Pain and suffering : Rs. 30,000.00 iii. Loss of comfort and amenities : Rs. 15,000.00 iv. Medical expenses, attendant charges Diet, conveyance and incidental charges : Rs. 78,000.00 Total : Rs.2,26,680.00 8. Learned counsel for the appellant vehemently contends that the Tribunal has erroneously considered the evidence on record. PW1 is the claimant, has stated in detail about negligence of driver of the car and there was no negligence on the part of the claimant for causing accident in question. That was not considered by the Tribunal. The Tribunal accepted the charge sheets filed - 5 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 against the claimant as well as the driver of the Car and held that both the riders as well as the driver were equally responsible for the accident in question. The said finding is erroneous, which needs to be set aside. 9. He further submits that claimant was assisting his father in his business of goldsmith and earning Rs.15,000/- p.m. Without considering the same, the Tribunal assessed income as Rs.6,000/- p.m. and on the basis of calculation, compensation under the head of loss of future earning capacity which is erroneous. He also further submitted that amount of compensation awarded under other heads are very less therefore prayed to enhance the compensation. 10. Learned counsel for respondent No.2 supported the impugned judgment. He further submits that on appreciating evidence of both the parties, as well as the charge sheets filed against the rider of the motorcycle as well as driver of the Car and looking the fact situation and the place of accident, it is held by the Tribunal that both are equally responsible for causing the accident in - 6 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 question and the Tribunal has not committed any error in the said finding. 11. Learned counsel for the respondent No.2 further contends that admittedly appellant was studying at the time of accident, therefore question of income does not arise at all. The claimant has not proved that his father was a goldsmith and he was assisting him and earning income. Therefore the Tribunal has taken notional income of the claimant in accordance with the law and awarded compensation which does not call for any interference by this Court. 12. The following questions arise for determination: i. Whether the Tribunal erred in holding that the accident was caused due to contributory negligence of claimant and his contribution was 50%? ii. Whether the claimant is entitled for enhancement of compensation? iii. What order? - 7 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 Question No.1: 13. Undisputedly charge sheets were filed against claimant and driver of the car. Ex.P6 is the charge sheet filed against driver of the car. Respondents also produced documents i.e., the charge sheets in Crime No.69 of 2013 at Ex.R3, wherein claimant is an accused. Recitals of the charge sheets reveal that both the rider and driver of the vehicles were equally contributed to the accident in question. Ex.R6 reveals that accident had taken place on the middle of the road and the manner in which accident had taken place reveals that driver of the motorcycle as well as car are equally responsible for causing the accident. The Tribunal after detailed examination of oral and documentary evidence held that driver of the car as well as rider of the motorcycle were negligent in driving their respective vehicles and it is apportioned in the ratio of 50:50. The said finding does not call for any interference. Accordingly, question No.1 is answered in the negative. - 8 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 Question No.2: 14. According to evidence of PW1, he was studying 1st semester of B.Com degree. In the examination-in-chief he has stated that due to injury sustained in the accident he could not attend 2nd semester examination; however in the cross- examination he has stated that after accident he attended annual examination and passed the said examination. Thereafter he appeared for the 3rd semester of B.Com degree. Said facts clearly indicate that he was studying at the time of accident. He has not examined his father to prove that he was paying Rs.15,000/- per month for assisting him in the work of goldsmith. There are no materials to accept the said contention. Therefore the Tribunal assed income of the claimant as Rs.6,000/- per month. There is no error in the said finding. 15. The accident had taken place in the year 2013. As per the chart of notional income prepared by the KSLSA notional income of the victim of an accident of the year 2013 is Rs.7,000/- per month, same could be applied to the present case. The multiplier applicable is 18. Age of - 9 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 the claimant at the time of accident was 20 years. Claimant examined PW3 who has assessed disability at 25% to the left limb. In his evidence he has stated that claimant sustained fracture of the left lower limb. He has stated that nail and screw are still in the fractured situ. Considering the age of the claimant and evidence of PW2 & PW3, disability is taken at 10% to the whole body. On the basis of the above said calculations, compensation under the head of loss of dependency is to be assessed. 16. Looking to the compensation awarded by the Tribunal as referred above compensation awarded under the heads are also on lower side and needs enhancement. The Tribunal has not awarded compensation under the head of loss of income during laid up period and future medical expenses which are also to be considered. Claimant may have to undergo surgery for removal of the implants and has to spend some amount which needs to be considered. Accordingly following amount of compensation is awarded. i. Loss of future earning : Rs.1,51,200.00 - 10 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 ii. Pain and suffering : Rs. 30,000.00 iii. Loss of comfort and amenities : Rs. 30,000.00 iv. Medical expenses, : Rs. 74,000.00 v. Attendant charges, Diet, conveyance and incidental charges : Rs. 26,000.00 vi. Future medical expenses : Rs. 25,000.00 Total : Rs.3,26,200.00 17. In all claimant is entitled for enhancement of Rs.1,09,520/- (Rs.3,36,200 less Rs.2,26,680/-) as ordered above. The respondents are liable to pay 50% of the said amount which amount to Rs.54,760,/-. The claimant is also entitled for interest at the rate of 6% per annum on the enhanced amount, from the date of petition till its realization. 18. For the aforesaid reasons, question No.2 is answered partly in the affirmative. 19. For the aforesaid discussion, I proceed to pass the following: ORDER i. Appeal is allowed in part. ii. The impugned judgment and award dated 24.11.2014 passed in MVC No.1094 of 2013 - 11 - NC: 2025:KHC-D:4946 MFA No. 100816 of 2015 by the Presiding Officer, Fast Track Court-III Court, Belgaum, is modified. iii. The claimant is entitled for enhancement of compensation of Rs.54,760/- with interest at the rate of 6% per annum from the date of petition till its realisation on the enhanced amount of compensation. iv. The respondent No.2 insurer shall deposit the said amount of enhancement within a period of 6 weeks from the date of award. v. Entire enhanced amount with interest are ordered to be released in favour of claimant on due identity. vi. Send back the TCR along with copy of this judgment. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 30