- 1 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MFA CROSS OBJ NO. 100135 OF 2018 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 103636 OF 2018 IN MFA CROB NO.100135/2018 BETWEEN SRI. HANUMANTRAO S/O. PRABHAKAR NAIK, AGE 24 YEARS, OCC: COMPUTER OPERATOR, R/O. CCB NO.100, MANGALWARPETH, TILAKWADI-BELAGAVI-590009. ...CROSS OBJECTOR (BY SMT. GEETHA K. M. @ PAWAR, ADVOCATE) AND 1. SMT. BHARATI W/O. UDAY PATIL, AGE MAJOR, OCC: BUSINESS, R/O. H.NO.3374, RENU KRUPA BUILDING, COLLEGE ROAD, BELAGVI-590001. 2. THE NEW INDIA ASSURANCE CO. LTD, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, CLUB ROAD, BELAGAVI, TAL. AND DIST: BELAGAVI-590001. …RESPONDENTS (BY SRI. R. R. MANE, ADV. FOR R2; NOTICE TO R1 DISPENSED WITH) THIS MFA CROB IN MFA NO.103636/2018 IS FILED UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED 26.06.2018 PASSED IN MVC NO.1597/2017 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT Digitally signed by VISHAL NINGAPPA PATTIHAL Location: High Court of Karnataka, Dharwad Bench. - 2 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO 103636/2018 BETWEEN NEW INDIA ASSURANCE CO. LTD, R/BY. THE SR. DIVISIONAL MANAGER, DIVISIONAL OFFICE, "MUDALAGI BLDG." CLUB ROAD, BELAGAVI, HEREIN REPRESENTED BY DULY CONSTITUTED ATTORNEY. ...APPELLANT (BY SRI. R. R. MANE, ADVOCATE) AND 1. SRI. HANUMANTRAO S/O. PRABHAKAR NAIK, AGE ABOUT 24 YEARS, OCC: COMPUTER OPERATOR, R/O. CCB NO.100, MANGALWARPETH, TILAKWADI, BELAGAVI-590006. 2. SMT. BHARATI W/O. UDAY PATIL, AGE MAJOR, OCC: BUSINESS, R/O. H.NO.3374, RENU KRUPA BUILDING, COLLEGE ROAD, BELAGAVI-590001. …RESPONDENTS (BY SMT. GEETHA K. M. @ PAWAR, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MV ACT, 1988, PRAYING TO CALL FOR RECORDS, ALLOW THIS APPEAL BY REDUCING THE AMOUNT OF COMPENSATION GRANTED TO THE CLAIMANT SUITABLY AND SET ASIDE THE JUDGMENT AND AWARD DTD 26.06.2018 PASSED BY THE COURT OF THE III ADDL. SENIOR CIVIL JUDGE AND M.A.C.T, BELAGAVI IN MVC NO.1597/2017 AND ETC. THIS CROB & APPEAL HAVING BEEN HEARD AND RESERVED ON 10.03.2025 FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA) 1. MFA No. 103636/2018 and MFA Crob. 100135/2018 arise out of judgment and award dated 26.06.2018 passed by the learned III Addl.Senior Civil Judge and MACT, Belagavi (for short, ‘the Tribunal’) in MVC No.1597/2017. 2. The Insurer - respondent No.2 filed MFA No.103636/2018 challenging the quantum of compensation awarded by the Tribunal and claimant filed MFA Crob.No.100135/2018 for enhancement of compensation. Hence both the matters arise out of common judgment and award hence both the appeals are taken up together for disposal. 3. The parties are referred to as per their rankings before the Tribunal. 4. Brief facts of the case are that on 11.11.2016 around 11.40 p.m. (noon), claimant was riding the - 4 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 motorcycle bearing registration No.KA-22/EU-9581 and going towards Channamma Circle in Belagavi and one Basavaraj (who was petitioner in MFA No.1598/2017) was a pillion. They met with an accident due to rash and negligent driving of the tipper lorry bearing registration No.KA-25/C-2635. As a result of which claimant sustained grievous injuries. He took treatment in Vijaya Hospital at Belagavi and spent around Rs.4,00,000/- towards medical expenses. He was aged about 23 years at the time of accident and was a computer operator working in Veer Sainath Chits (Karnataka) Pvt.Ltd. and earning Rs.8000/- per month and he was also working in another organization and earning Rs.7,000/- per month. Totally he was earning Rs.15,000/- per month. Due to injury sustained in the accident he has been suffering from permanent disability of 20% to the right hip joint, 15% to the left hip joint and 20% to the whole body due to fracture of lumbar spine. With these reasons he prayed to award compensation. - 5 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 5. Insurer in its written statement denied the contentions of the claim petitioner and it is further stated that accident had taken place due to rash and negligent riding of motorcycle by the claimant and amount of compensation sought is on higher side. It is also further contended that its liability is restricted to terms and conditions of policy of insurance and holding of valid and effective driving licence by driver of the offending tipper lorry. With these reasons prayed to dismiss the claim petition against respondent No.2. 6. The Tribunal on the rival contentions of the parties framed necessary issues. 7. The Tribunal clubbed MVC No.1597/2017 and MVC No.1598/2017 and recorded common evidence. 8. Claimant in both the cases examined three witnesses as PWs.1 to 3 and marked 25 documents as Exs.P1 to P25 and closed the evidence. Respondent No.2 marked one document as Ex.R1. - 6 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 9. The Tribunal after hearing both the parties, appreciating the pleadings and evidence on record, awarded following amount of compensation: Pain the suffering :Rs.1,20,000.00 Loss of amenities :Rs. 50,000.00 Loss of future income :Rs.5,18,400.00 Loss of income during laid up period :Rs. 36,000.00 Medical expenses :Rs.1,82,504.00 Attendant charges and misc.expenses :Rs. 35,000.00 Total :Rs.9,41,904.00 10. Insurer found that the said amount of compensation awarded was highly excessive and not just and reasonable and claimant contends that the said amount of compensation awarded is inadequate. Therefore both of them challenged the said judgment and award. 11. Heard the arguments of learned advocates for both the sides. 12. The learned advocate for Insurer vehemently contends that the Tribunal in the impugned judgment held that claimant has not produced any document to show that he was earning Rs.15,000/- per month and it - 7 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 assessed notional income of the claimant as Rs.8000/- per month as per the certificate given by the Veer Sainath Chits (Karnataka) Pvt.Ltd. But while calculating the compensation the Tribunal took the income of the claimant as Rs.12,000/- per month without any basis. He further contends that according to the case of the claimant he was earning Rs.8,000/- per month, from working in the said company. When he was full time employee of the said Firm, his contention that he was also working somewhere else, is not believable. The said company, looking to his qualification, was paying salary of Rs.8,000/- per month. Therefore reasons assigned by the Tribunal that looking to the qualification, he would earn more income, from his salary certificate, is not acceptable. The Tribunal on the assumptions and presumptions held that the claimant was earning Rs.12,000/- per month, which is not permissible. He further submits that amount of compensation awarded on all other heads are highly excessive, which needs to be reduced and just amount of compensation is to be awarded. - 8 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 13. The learned counsel for the claimant vehemently contends that Tribunal has taken income of the claimant as Rs.12,000/- per month. He is a well qualified person and his income cannot be assessed on the basis of notional income on par with the coolies. The Tribunal should have recognized his educational qualifications and awarded the compensation, assessing his income as Rs.15000/- per month. She further contends that PW3 in his evidence has stated in detail about the disability of claimant and he calculated the percentage of disability. However, Tribunal has taken 20% disability to the whole body, which is incorrect and if that is considered then disability of the claimant is more than 60% that should be taken by the Tribunal. 14. The learned counsel for the claimant further submits that the Tribunal has not awarded compensation towards future prospects, medical expenses and amount of compensation awarded on other heads are also on lower - 9 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 side therefore prayed for enhancement of the compensation. 15. The only question arises in this case is “whether the Tribunal has awarded just and reasonable amount of compensation?” 16. The fact of accident and sustaining of the injury by the claimant are seriously disputed. Therefore there is no need to consider the same in this appeal. 17. The medical records produced by the claimant before the Tribunal reveals that he sustained following injuries: • T-shaped fracture of the right acetabulum. • Fractures of the left inferior pubic rami, left transverse process of L4 and L5 vertebral body and the right half of the S1” 18. In Ex.P8 in the discharge summary which is given by Vijaya Ortho and Trauma Center reveals that claimant sustained fracture of right interior column T- shaped and urethral injury, fracture of superior and - 10 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 inferior pubic rami on both side, fracture of interior column and brutal wall of right acetabulum, undisplaced fracture of right sacral ala extending upto spinous process of S2 vertebral body noted. 19. 19. Ex.P11 dated 17.01.2018 shows that malunited fracture of superior ramus of the right pubic bone, malunited fracture of the inferior ramus of the left pubic bone, malunited fracture of right accetabulum, malunited fractures of transverse process of L4, L5 vertebra and malunited fracture of right alla of sacrum. 20. He was admitted in Vijaya Hospital from 11.11.2016 to 28.11.2016. Ex.P8 also reveals that he underwent surgery and Ex.P11 that is the X-ray taken prior to assessment of disability show that all the fractures were malunited. 21. Considering all these facts the Tribunal awarded the compensation under the head pain and suffering, medical expenses, loss of amenities, loss of income during - 11 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 paid up period and attendance charges, spl.diet, conveyance charges etc., The said amount of compensation awarded are just and reasonable and it does not call for any interference by this Court. 22. The Tribunal assessed the income of the claimant as Rs.12,000/- per month. According to the insurer the said amount is on the higher side. As per the case of claimant, he was earning Rs.8,000/- per month and he has produced the salary certificate in this regard therefore the Tribunal ought to have taken the said amount as his earnings. Instead of that the Tribunal without any reasons has taken the income as Rs.12000/- per month which is on higher side. 23. The learned counsel for the claimant contends that claimant has contended that he was earning Rs.8,000/- per month from working in the said Firm and he was also earning Rs.7,000/- per month by working in some other organization and his total income was Rs.15,000/- per month. He was well qualified person and - 12 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 he was computer operator and completed the diploma in automation and he studied II year PUC in commerce and studied automation course from Engineer’s Computer Academy. Therefore, his income cannot be considered on par with labourers working in the field or other coolie work. Therefore contends that his income shall be considered as Rs.15,000/- per month. 24. According to the claim petition as well as evidence of PW1 he was earning Rs.8,000/- + Rs.7000/- per month by working in different Firms. He has produced the salary certificate given by Veer Sainath Chits (Karnataka) Pvt.Ltd., Belagavi which shows that he was earning Rs.8,000/- per month. He has not produced any other records to show that he was also earning Rs.7,000/- per month, which was noted by the trial Judge. Therefore the Tribunal has not considered the said income. As per the notional income chart prepared by KSLSA, notional income of a victim of an accident of the year 2016 is Rs.8,750/- per month. As rightly submitted by learned - 13 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 counsel for the claimant his salary cannot be considered on par with an illiterate or a coolie worker. Though he is qualified person, but he is not graduate or post graduate to earn as stated by the claimant. He has studied upto PUC and obtained certificate course. Considering these facts, reasonable amount of salary has to be calculated. Rs.12,000/- calculated by the Tribunal is on higher side and the contentions of the insurer that he was earning Rs.8,000/- per month is on lower side. Considering the contention of both the party income of the claimant is taken as Rs.10,000/- per month. 25. Though the learned advocate for claimant vehemently contends that the disability taken by the Tribunal is on lower side but claimant himself has not disclosed what were his difficulties in performing his work as he was doing in Veer Sainath Chits (Karnataka) Pvt.Ltd., Belagavi. He must explain why it was not possible for him to work in the said company as he was working prior to the accident. Mere quoting certain percentage of - 14 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 the disability by non-treated doctor, who is known for generous in giving of disability without any basis cannot be accepted by the Courts. Claimant did not explain what are his difficulties from the said injuries, except stating that now he cannot work as he was working prior to the accident. Even PW3, who is not a treated doctor and who has only issued certificate of disability, has no where stated about complaints of the claimant. Under such circumstances the disability stated by the PW3 may be functional disability but not the occupational disability. The Tribunals are concerned with the disability affecting the earning capacity of the claimant. Therefore the disability given by PW3 to each organ cannot be added together and say that claimant was suffering from the disability of 60% to the whole body. Such calculations are not permissible as per the AMLCO Manual and the notification issued by the Central Government. Therefore the said contention is not acceptable. - 15 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 26. Tribunal on the basis of the available materials assessed age of claimant as 23 years and applied multiplier as 18. The Tribunal assessed disability affecting his earning capacity at the rate of 20% to the whole body, which is reasonable and same could be accepted. On the basis of the same, the compensation under the head loss of earning capacity due to permanent disability is recalculated i.e., Rs.10,000/- x 12 x 18 x 20% = Rs.4,32,000/-. 27. The Tribunal has assessed compensation under the head loss of income during laid up period taking into income of the claimant as Rs.12,000/- per month. Now the said income is reduced to Rs.10,000/- per month and on that basis proportionately the said amount needs to be reduced. It appears that tribunal has taken loss of income during laid up as 3 months. Looking to several injuries sustained by him and admitted as inpatient in the hospital for nearly 3 weeks, so also malunion fracture sustained by him, it might not be possible for him to attend to his - 16 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 regular work for a period of 6 months and he lost income for a period of 6 months. Since the income of the claimant is taken as Rs.10,000/- per month for 6 months, Rs.60,000/- is to be re-calculated under the head loss of income during laid up period. 28. Claimant has filed application under Order XLI Rule 27 of CPC and produced a letter given by the above said Firm, where he was working prior to the accident, that he left the service from 11.04.2017. The said application is supported by the application of claimant, wherein it is contended that “on reading of the entire judgment, Tribunal pre-determined not to consider his income therefore the Tribunal has made minor contradiction and erred in passing an illegal and erroneous judgment and award. Therefore he may be permitted to produce said certificate”. The reasons assigned in the affidavit are not at all tenable and not in accordance with Order XLI Rule 27 of CPC. This is not original Forum wherein such application could be filed, as of right. But at - 17 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 appellate courts when such an application is filed, it is not of right but should explain reasons for non-production of such record before the trial Court. No such grounds are made out in the affidavit. Moreover it is stated that the Tribunal has pre-determined not to consider the income of claimant. The reasons are not explained in the affidavit for pre-determination of the Tribunal. The Tribunal infact assessed the income of the claimant more than what the claimant has contended therefore it is unfounded reasons assigned by the claimant against the Tribunal. 29. It is also worth to note that evidence of PW1 was recorded before the Tribunal, on 28.04.2018, that is nearly an year after date of issue of said certificate or leaving the job from the said Firm. In the examination-in- chief, PW1 himself did not say anywhere that he left the service because he was unable to work and there was no reference regarding issue of such a certificate, given by his employer. Moreover the said certificate is very vague. It also does not disclose as to whether from the date of - 18 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 accident till his termination, he was attending duty or not. Merely he was removed from the said Firm does not mean that he will not get any better employment. The said certificate will not help the Court to pass effective judgment. Conditions of Order XLI Rule 27 of CPC has not been followed by the appellant/claimant while production of additional document. On both the ground application deserve to be rejected. 30. The learned counsel for the claimant further contends that the Tribunal has not considered future prospects while assessing the income of the claimant as held in the National insurance Company Ltd. Vs. Pranay Sethi and others reported in (2017) 16 SCC 680. She has also relied on the judgment of Coordinate Bench of this Court in MFA No.5572/2009 in the case of Manager, ICICI Lombard General Insurance Company Ltd. Vs.Muniyappa and others dated 04.11.2024. - 19 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 31. In the case of Pranay Sethi, Hon’ble Apex Court held that in case of death of a person in vehicle accident future prospects shall be added to income of the deceased depending upon his age. It does not deal with cases of injury. 32. It is also settled principle of law that if a victim of an accident is suffering from permanent disability of more than 75% then also future prospects may be considered. In this case, the victim/claimant has been suffering from disability of 20% to whole body and there are no special circumstances to award future prospects. The principle of law laid down in the Judgment rendered by the Coordinate Bench of this Court in the case of Muniyappa (referred supra) is not applicable to the facts of this case. Hence submission of learned advocate for claimant is not acceptable. 33. For the aforesaid discussions, following amount of compensation is re-calculated: - 20 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 Pain the suffering :Rs.1,20,000.00 Loss of amenities :Rs. 50,000.00 Loss of future income :Rs.4,32,000.00 Loss of income during laid up period :Rs. 60,000.00 Medical expenses :Rs.1,82,504.00 Attendant charges and misc.expenses :Rs. 35,000.00 Total :Rs.8,79,504.00 34. The claimant is entitled for Rs.8,79,504/- as against Rs.9,41,904/- awarded by the Tribunal. 35. There is no dispute that the said offending vehicle was insured with respondent No.2 and it is liable to pay the compensation. And claimant is also entitled for interest at the rate of 6% per annum on the amount of compensation. 36. For the aforesaid discussions, question No.1 raised above is answered in partly affirmative and proceed to pass following: - 21 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 ORDER i. MFA No.103636/2018 and MFA Crob.No.100135/2018 are allowed in part. ii. The judgment and award dated 26.06.2018 passed by the learned III Addl.Senior Civil Judge and MACT, Belagavi in MVC No.1597/2017 is modified. Claimant is entitled for Rs.8,79,504/- as against Rs.9,41,904/- awarded by the Tribunal and claimant is entitled for interest at the rate of 6% per annum on the said amount of compensation from the date of petition till its realization. iii. Respondent No.2/insurer shall deposit the said amount within a period of 6 weeks from the date of passing of the award. iv. Deposit and release of the amount is as ordered by the Tribunal. - 22 - NC: 2025:KHC-D:6607 MFA.CROB No. 100135 of 2018 C/W MFA No. 103636 of 2018 v. Send back the TCR along with copy of this judgment. vi. Whatever the amount deposited by the insurer shall be transmitted to the Tribunal for disbursement. Sd/- (UMESH M ADIGA) JUDGE KGK /CT-AN List No.: 1 Sl No.: 56