- 1 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.22209 OF 2012 (MV-I) BETWEEN: KUMARI RUKMAVVA D/O. YALLAPPA KAJUR, AGED ABOUT: 17 YEARS, OCC: STUDENT, REPRESENTED BY NATURAL GUARDIAN MOTHER, HONNAVVA W/O. YALLAPPA KAJUR, AGED ABOUT: 48 YEARS, OCC: HOUSEHOLD WORK, R/O: KADAMPUR R.C., BAGALKOT. …APPELLANT (BY SRI ANAND R.KOLLI, ADVOCATE) AND: THE DIVISIONAL CONTROLLER, N.W.K.R.T.C. CHIKKODI, DIST: BELAGAVI. …RESPONDENT (BY SRI S.C. BHUTI, ADVOCATE) THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 27-03-2012 PASSED IN M.V.C. NO.371/2009 ON THE FILE OF MEMBER, MACT NO.IV, BAGALKOT, AT: BAGALKOT AND ENHANCE THE COMPENSATION BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY. THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the claimant challenging the judgment and award dated 27.03.2012, passed by the Member M.A.C.T No.IV, Bagalkot, in MVC No.371/2009, seeking enhancement of compensation. 2. Heard the arguments and perused the material placed before the Court. 3. The occurrence of accident, injuries sustained by the claimant and coverage of insurance are not in dispute in this case. 4. The claimant is a minor girl of 15 years old as on the date of accident. At the time of accident, claimant sustained grievous injuries and amputation of left leg above knee and this aspect is not disputed. 5. The Tribunal after considering the facts and circumstances and evidence on record, has awarded total compensation of Rs.2,97,400/- along with interest at the - 3 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 rate of 6% per annum from the date of petition till the date of realization, under the following heads: SL.NO. PARTICULARS AMOUNT (IN.RS.) 1. Towards pain and suffering 60,000/- 2. Marriage prospects 50,000/- 3. Towards medical expenses (Medical produced Rs.96,843/-) 96,900/- 4. Towards disability 81,000/- 5. Towards attendant charge 2,500/- 6. Towards conveyance charges in all 7,000/- Total Compensation 2,97,400/- 6. Upon considering the injuries sustained and amount of compensation awarded by the Tribunal, which is on lower side. Hence, the claimant is entitled to enhanced compensation on the correct parameters. 7. If the injured is not able to do the work as he was doing earlier to the accident, then that would be amounting to 100% of functional disability. The Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay - 4 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 Kumar and Another1, wherein at Paragraph Nos.12, 13 and 19, it is held as under: “12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability. 13. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. 1 (2011) 1 SCC 343 - 5 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” “19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.” - 6 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 8. Further the Hon’ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Hon’ble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand. 9. The Hon’ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 were pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he 2 (2013) 8 SCC 389 3 (2015) 7 SCC 252 - 7 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor’s evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon’ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and Others4 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon’ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart- puller and had suffered functional disability at 100% and accordingly, awarded compensation. 4 (2012) 2 SCC 267 - 8 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 10. The principle of law laid down regarding permanent physical disability and functional disability is applicable in the present case also. There may not be evidence of the doctor that the injured has suffered 100% of permanent physical disability, but the functional disability is to be considered on the basis of nature of injuries sustained and the profession of the injured/claimant. 11. Learned counsel for respondent submitted that he has justified the judgment and award as the claimant is a minor girl and she is not earning member of a family. Therefore, total compensation awarded by the Tribunal is correct. 12. In this case, the claimant is a 15 year old girl and her future prospects are hampered. Therefore, 100% of functional disability is taken into consideration due to amputation of left leg. Her all dreams and future prospects are completely hampered. Therefore, it is treated as a 100% disability and also the claimant is entitled to - 9 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 additional income towards loss of future prospects in life. Since, the claimant is a minor girl, she was compelled to burn all dreams of her life. Therefore, in this case it is considered as the claimant has suffered 100% functional disability, besides entitling loss of future prospects in life. The accident is caused in the year 2009. Therefore, notional income of Rs.5,000/- per month is taken into consideration in absence of proof of income, 40% of income is added towards loss of future prospects in life. The appropriate applicable multiplier is ‘18’. Hence, loss of future income due to disability is hereby calculated as under: 5,000 + 40% x 18 x 12= 15,12,000/- 13. Considering the injuries sustained, a compensation of Rs.1,00,000/- is to be awarded towards pain and suffering, Rs.25,000/- is to be awarded towards loss of marriage prospects. The compensation towards medical expenses of Rs.96,000/-. Further Rs.30,000/- is awarded towards attendant charges, Rs.10,000/- is to be - 10 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 awarded towards conveyance charges, Rs.1,00,000/- is awarded towards amenities and Rs.35,000/- towards loss of income during laid up period for a period is awarded. SL.NO. PARTICULARS AMOUNT (IN.RS.) 1. Towards pain and suffering 1,00,000/- 2. Towards loss of marriage prospects 25,000/- 3. Towards medical expenses 96,000/- 4. Towards future income due to disability 15,12,000/- 5. Towards attendant charges 30,000/- 6. Towards conveyance charges 10,000/- 7. Towards amenities 1,00,000/- 8. Towards loss of income during laid-up period 35,000/- Total Compensation 19,08,000/- 14. Therefore, the claimant is entitled for total compensation of Rs.19,08,000/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,97,400/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment. 15. In the result, I proceed to pass the following: - 11 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 ORDER i) The appeal is allowed in part. ii) The judgment and award dated 27.03.2012, passed by the Member M.A.C.T No.IV, Bagalkot, in MVC No.371/2009 stands modified. iii) The claimant is entitled for total compensation of Rs.19,08,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization, as against Rs.2,97,400/- awarded by the tribunal. iv) The insurance company shall deposit the amount within a period of eight weeks from the date of receipt of a copy of this judgment. v) The 50% of amount shall be invested in fixed deposit in any Nationalized Bank for - 12 - NC: 2025:KHC-D:1993 MFA No. 22209 of 2012 a period of five years and remaining 50% be released in the name of the claimant. vi) Send a copy of this judgment to the trial Court. vii) No order as to costs. viii) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE RKM List No.: 1 Sl No.: 35