- 1 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.21415 OF 2013 (MV) C/W MISCELLANEOUS FIRST APPEAL NO. 21032 OF 2013 IN M.F.A. NO.21415 OF 2013 BETWEEN: DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., 2ND FLOOR MADIWALE ARCADE CLUB ROAD, BELAGAVI, REPTD. BY-ASST. MANAGER, REGIONAL OFFICE, HUBLI. …APPELLANT (BY SRI S.S.JOSHI, ADVOCATE) AND: 1. SHRI HULLEPPA S/O. SHIVABASAPPA KABADAGI, AGE: 37 YEARS, OCC: BUSINESS, R/O. A/P SHIVAPUR (K), TQ: GOKAK, DIST: BELAGAVI. (OWNER OF HERO HONDA MOTOR CYCLE BEARING NO.KA-23/Q-0438) 2. SRI ASHOK S/O. BASAVANNI MATADAR, AGE: 36 YEARS, OCC: KIRANI MERCHANT AND AGRICULTURE NOW NIL, R/O. A/P SHIVAPUR (K), TQ: GOKAK, DIST: BELAGAVI. …RESPONDENTS (BY SRI VINAY S. KOUJALAGI, ADVOCATE FOR R1, SRI H.R.LATUR, ADVOCATE FOR C/R2) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT 1988, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 05.02.2013 PASSED IN MVC NO.1981/2011 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT, AT GOKAK AND ETC.,. IN M.F.A. NO.21032 OF 2013 BETWEEN: SHRI ASHOK S/O. BASAVANNI MATADAR, AGE: 36 YEARS, OCC: KIRANA MERCHANT AND AGRICULTURE, R/O: SHIVAPUR (K), TQ: GOKAK, DIST: BELAGAVI. ...APPELLANT (BY SRI HANAMANT R.LATUR, ADVOCATE.) AND: 1. HULLEPPA S/O. SHIVABASAPPA KADABAGI, AGE: 37 YEARS, OCC: BUSINESS, R/O: SHIVAPUR (K), TQ: GOKAK, DIST: BELAGAVI. 2. THE DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO. LTD., 2ND FLOOR, MADIWAL ARCADE CLUB ROAD, BELAGAVI, DIST: BELAGAVI. RESPONDENTS (BY SRI VINAY S. KOUJALAGI, ADVOCATE FOR R1; SRI S.S.JOSHI, ADVOCATE FOR R2.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, ADDL. M.A.C.T., AT: GOKAK, IN MVC NO.1981/2011 DATED 05.02.2013, IN THE INTEREST OF JUSTICE AND EQUITY. - 3 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) These appeals are filed challenging the judgment and award dated 05.02.2013, passed by the Principal Senior Civil Judge and Additional MACT, Gokak, in MVC No.1981/2011. 2. MFA No.21415/2013 is filed by the insurance company seeking reduction of compensation and MFA No.21032/2013 is filed by the claimant seeking enhancement of compensation. 3. Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court. 4. Since the claimant had sustained injuries in a motor vehicle accident occurred on 20.07.2011 at about 09.30 p.m., as he was moving on a motorcycle as a pillion rider and due to sudden application of brakes, the motorcycle turtled and caused the accident. Therefore, the - 4 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 claimant sustained injuries. The tribunal after considering the injuries sustained by the claimant, has awarded compensation as under: Sl. No. Heads. Amount in (Rs.) 1. Loss of future income. 6,14,400 2. Hospitalization. 20,534 3. Medical bills. 83,783 4. Pain and suffering, special diet, attendant charges. 20,000 5. Loss of amenities, happiness and frustration. 20,000 6. Food and nourishment etc., 20,000 7. Expectation of loss. 15,000 Total: 7,93,717 5. Learned counsel for the insurance company submitted that considering the nature of injuries sustained, holding permanent physical disability at 50% to the whole body by the tribunal is not correct. It should be around 15%. Therefore, by taking 15% disability to the whole body and considering the notional income as per the chart prepared by the Karnataka State Legal Service Authority in the absence of proof of income, the compensation is to be reduced. Hence, he prays to allow the appeal filed by the insurance company. - 5 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 6. On the other hand, learned counsel for claimant submitted that the percentage of permanent physical disability to the whole body held by the tribunal is correct, but the income taken is on lower side since the claimant was doing grocery shop business and earning more than Rs.10,000/- per month. Therefore, prays to take income of the claimant at least Rs.10,000/- per month and prays to enhance compensation by allowing the appeal filed by the claimant. 7. In the present case, from the medical evidence on record it is proved that the claimant has suffered the following injuries. “Fracture shaft femur right side; Compound comminuted fracture shaft tibia and fibula or right leg/cut lacerated would 3” x 2”. Other grievous injuries all over the body.” 8. It is the evidence of PW.2 doctor that upon clinical examination it is found that the claimant has suffered the following injuries. - 6 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 “Tenderness over right hip, tight, knee, leg and ankle; There is healed scar over outer aspect of right hip, front of right knee and leg; Flexion at right hip is restricted by 40 degrees, internal rotation and external rotation at right hip are restricted by 20 degrees; Flexion at right knee restricted by 60 degrees. Dorsiflexion and planter flexion at right ankle are restricted by 20 degrees. Aduction and aduction at right ankle are restricted by 20 degrees and painful. He walks with limp on right side; He cannot sit squat and run; He has difficulty in climbing staircase. Walking a long distance and do the work. Present x-ray of right hip and thigh shows united fracture of right femur with implants inside; x-ray of right leg shows united fracture of tibia and fibula with implants inside.” 9. Since the claimant suffered fracture to the shaft femur right side and compound comminuted fracture of shaft tibia and fibula of right leg and the claimant is walking with limping on right side and also finding difficulty in climbing the staircase, he cannot sit, squat and run. He cannot walk - 7 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 long distance and do the work. Therefore the doctor PW.2 has stated that the claimant has suffered permanent disability of 25% due to femur bone and 25% due to compound comminuted fracture of shaft of tibia and fibula bones of right leg. Therefore, right hand of the claimant has become functionless and now the claimant is walking with limping and doing business of grocery shop is not able to do the business of grocery shop as effectively as before the accident. Therefore, though the disability stated by the doctor is little bit higher side, it ought to be considered as 40%, but at the same time the compensation awarded under the head injuries pain and suffering is lesser side. Further the tribunal has not awarded compensation under the head incidental expenses. Further, the compensation awarded under the head loss of amenities is lesser side. Therefore, whatever compensation awarded is found to be 10% higher of disability, but that is compensated by awarding lesser amount under the head injuries pain and suffering, incidental expenses and loss of amenities. Considering the nature of injuries sustained as above discussed, the tribunal is correct - 8 - NC: 2025:KHC-D:3472 MFA No. 21415 of 2013 C/W MFA No. 21032 of 2013 in holding the income at Rs.8,000/- per month as Ex.P.63 to 65 prove the fact that the claimant was doing grocery shop business. 10. Therefore, considering the overall facts and circumstances involved in the case, the compensation awarded by the tribunal is found to be just and proper and correct, which needs no interference either by making enhancement or by making reduction of the compensation. Therefore, this Court is of the opinion that the compensation awarded by the tribunal is just and proper and correct. Hence, both the appeals are liable to be dismissed. Accordingly, the appeals are dismissed. 11. The amount in deposit made by the Insurance Company shall be transmitted to the tribunal. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD. List No.: 1 Sl No.: 45