- 1 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE UMESH M ADIGA MISCELLANEOUS FIRST APPEAL NO.7759 OF 2013(MV-I) BETWEEN: 1. M/S CHOLAMANDALAM MS GEN. INS. CO. LTD UNIT NO.4, 9TH FLOOR, (LEVEL 5), GOLDEN HEIGHTS COMPLEX, 59TH "C" CROSS, INDUSTRIAL SUBURB, RAJAJINAGAR 4TH "M" BLOCK, BENGALURU-560010. FORMERLY FUNCTIONING AT NO. 9/1, ULSOOR ROAD BENGALURU-560042 …APPELLANT (BY SRI. Y.P.VENKATAPATHI, ADVOCATE) AND: 1. SRI ERIC RODRIGUUZ, AGED 46 YEARS, S/O FRANCIS RODRIGUEZ, R/AT NO.3, MARIA NEST, ROCHIE ENCLAVE, BANZNA MAIN, HORAMAVU POST, BENGALURU-560042. 2. M/S CARNONRENT INDIA PVT. LTD., 12/10, I FLOOR, ABOVE VIJAYA BANK, MSR MAIN ROAD, GOKULA, MSR ROAD, S.O., BENGALURU-560054. Digitally signed by KORLAHALLI BHARATHIDEVIKRISHNACHARYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 …RESPONDENTS (BY SMT. AMBIKA M., ADVOCATE FOR SRI. SHRIPAD V SHASTRI, ADVOCATE FOR R1, V/O DATED 29.11.2013, NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.06.2013 PASSED IN MVC NO.7040/2011 ON THE FILE OF THE 21ST ACMM, 23RD ADDITIONAL SMALL CAUSES JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL COURT OF SMALL CAUSES, BENGALURU. THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.06.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA CAV JUDGMENT This appeal is filed by respondent No.1 challenging the judgment and award dated 01.06.2013 passed by the XXIII Additional Small Causes Judge and MACT, Bengaluru, in MVC.No.7040/2011. 2. The parties are referred to as per their ranking before the Tribunal. 3. The brief facts of the case are that on 12.10.2011, the claimant was riding his motor cycle bearing registration No.KA-03-HF-1314 along with his daughter, - 3 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 Edna Maria Rodrigues, as pillion rider, when they were near Agrahara circle on Agara and Horamavu Main road, Bengaluru, the driver of the cab bearing registration No.KA- 04-D-415 drove his vehicle in a rash and negligent manner and hit the motor cycle of the claimant, as a result of which, the claimant and his daughter fell down and sustained grievous injuries i.e., fracture of both the bones in the right leg. He took treatment in Hosmat hospital, Bengaluru. 4. It was further contended by the claimant that he was serving in the Railway department and was earning Rs.60,000/- per month. Due to injuries sustained in the accident he was unable to attend to his regular work and consequently lost his earnings. With these reasons, he prayed to award compensation of Rs.5,00,000/- with interest @ 12% per annum from the date of claim petition till realization of the entire amount. 5. Respondent No.1 is the insurer and respondent No.2 is the owner of the car. Respondent No.1 denied the contentions of the claimant. It further contended that its - 4 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 liability is restricted to terms and conditions of the policy of insurance and holding of valid and effective driving license by driver of the offending vehicle. It further stated that the accident occurred solely due to the negligence of claimant. With these reasons, respondent No.1 prayed for dismissal of the claim petition. 6. Respondent No.2 denied the contentions of the claim petition. He further stated that the offending car was insured with respondent No.2 and respondent No.2 is liable to indemnify respondent No.1 and pay the compensation. With these reasons respondent No.2 prayed to dismiss the claim petition with costs. 7. From the rival contentions of the parties, the Tribunal framed necessary issues. 8. The claimant to prove his case examined two witnesses as PWs-1 and 2 and got marked Exs.P1 to P24. Respondent No.1 examined RW1 and marked Exs.R1 to R6. The Tribunal after hearing both the parties and appreciating pleading and evidence on record held that the accident - 5 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 occurred due to rash and negligent driving of the offending car by its driver. It further held that the claimant has sustained grievous injuries in the said accident. The Tribunal concluded that the claimant is entitled for compensation and accordingly, awarded total compensation of Rs.10,75,168/- under different heads as under: SL.NO. PARTICULARS AMOUNT IN (RS.) 1. Pain and suffering 60,000 2. Medical expenses incurred 1,41,200 3. Conveyance, nourishment, attendant charges 30,000 4. Future medical expenses 30,000 5. Loss of earnings during laid up period 4,71,468 6. Loss of special allowance 3,42,500 Total 10,75,168/- 9. Being aggrieved by the said judgment and award, respondent No.1 – insurer filed this appeal challenging the quantum of compensation awarded. 10. The Tribunal basing on the rival contentions of the parties, framed the necessary issues. 11. I have heard the arguments of learned counsel for both the sides. - 6 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 12. Learned counsel for the appellant vehemently contended that according to claimant he was an employee in Central Government in Railway Department and he was drawing salary of Rs.60,000/-. During the course of trial, a new case was made out by the claimant that he was earning Rs.2,500/- per day as mileage allowances per month. The Tribunal mistakenly took it as Rs.2,500/- per day and awarded compensation of Rs.3,42,500/-under the head loss of income of mileage allowance. Awarding amount of Rs.3,42,500/- is inappropriate and the claimant is not entitled for the said compensation. It is further contended that amount of compensation awarded towards loss of leave encashment facility etc., is also on the higher side. Therefore, prayed to modify the said award and reject the amount of compensation awarded by the Tribunal as stated above. 13. The learned counsel for claimant vehemently contends that the Tribunal has considered the contentions of both the parties and assessed the materials available on - 7 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 record and awarded just compensation. The claimant is entitled for loss of kilometer allowance due to the change of his job, and therefore the awarded amount of RS.3,42,500/- is justifiable. She further contends that Ex.P11 merely reveals that claimant had availed all kind of leave while undergoing treatment, and hence, claimant is entitled for compensation towards future medical expenses etc., With these reasons, prayed to dismiss the claim petition. 14. The following points emerges for my determination: i. Whether the Tribunal has awarded just and reasonable amount of compensation and interference to the said finding is required? ii. What order? 15. Point No.1 – Looking at the arguments advanced by learned counsel for the appellant as well as the ground of appeal, the facts of the accident and injuries sustained by the claimant are not in dispute. The dispute is only in respect of awarding compensation under the head loss of earning during laid up period and loss of special allowance. - 8 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 16. Learned counsel for the appellant has contended that as per Ex.P23, at the request of claimant he was transferred to the post of PRC/CR. In the Notification issued by railway department, the salaries of both the posts are one and the same, and their tenure to said post is for three years. Hence, there is no question of loss of special allowance as contended by the claimant. 17. Learned counsel for the appellant further contended that even the compensation allowed in respect of loss of income during laid up period is highly excessive and hence prayed to recalculate the same. 18. The learned counsel for the claimant has contended that the Tribunal has wrongly understood regarding loss of income of mileage allowance. Claimant was not getting mileage allowance of Rs.2,000/- per day. On the contrary, the salary certificate at Ex.P11 shows that he was receiving Rs.11,475/- per month as kilometer allowance. He lost the said his allowance because of change of his post. Earlier he was working as Loco Pilot and he is transferred to - 9 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 work as PRC/CRC. His current posting is in the administrative office, where he will not be eligible for the 'kilometer allowance', which is granted only to Loco Pilots. The claimant was unable to perform the duties of Loco Pilot due to the fracture sustained in the accident. Therefore, he voluntarily opted for post of PRC/CRC in administrative office and consequently, lost the said income of Rs.11,475/- per month. 19. The learned counsel for the claimant further contended that date of birth of claimant was 28.05.1967. The accident occurred on 12.10.2011, when he was aged 44 years. He still had service of 15 years and 7 months. For the said period of service, he will lose the said allowance. If we calculate the said allowance at the rate of Rs.11,475/- per month then total loss would be Rs.11,475x15.7, it would be Rs.21,45,719/-. Thus the claimant is entitled for Rs.21,45,719/- of compensation towards loss of kilometer allowance. To consider the said case, it is necessary to remand the matter to the Tribunal for re-consideration of the - 10 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 materials available on record and to award a just and reasonable amount of compensation. 20. Learned counsel for the claimant further contends that if for any reason, this Court concludes that the claimant is not entitled for kilometer allowance then in such an event, this Court may consider awarding compensation towards loss of amenities, since the Tribunal has not awarded any amount of compensation under the head loss of amenities. I have anxiously considered evidence on record. The claimant sustained fracture of both the bones of right leg and it was united. He was serving as Loco-Pilot and after the accident he voluntarily changed his job from Loco-Pilot to that of PRC/CRC. In his evidence, he failed to disclose the nature of his work and how the said fracture affected him to perform his regular work. Even the doctor had stated that the claimant would not be able to work as Loco-pilot after accident. But the doctor also did not disclose as to why claimant was unable to work as Loco-pilot. There are no materials on record to believe that the railway department changed his post because he was unable to perform the said - 11 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 job due to disability. He has also not made any representation to department that due to disability suffered because of injury sustained in the accident, he was unable to work as Loco-pilot. Under these circumstances, the loss of allowance claimed by the claimant cannot be considered as a loss of income resulting due to disability. In the absence of such fact and he voluntarily opted for change of job, he cannot claim compensation for such loss. For example, if the claimant voluntarily resigns from his job due to inability to work, in such circumstances, could be claim compensation for loss of his salary income for a period of 15 years and 7 months? The answer is 'No'. Hence, claimant is not entitled to compensation for loss of special allowance because it had no connection with his disability. 21. Ex.23 is produced by the claimant. The contents of the said document are not in dispute. In the part.2 of the said document, it is stated that, (I quote) "The following Running staff who have volunteered for the post of PR/CRC in response to this office notification of even No.dated 19.10.2011 in terms of Railway Board's Lr.No.E(P&A) II- -83/Rs/10 dated 09.01.98 on screening found suitable are posted - 12 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 as PRC/CRC to the stations mentioned against each on the same PB+GP." 22. Below the names of persons transferred, there is a note of the conditions of transfer; Condition No.2 says that they will continue to progress in the Running Cadre and will be subjected to all the terms and conditions of service applicable to Running Staff. Condition N0.3 says that their posting are tenure for a period of 3 years with a cooling off period of equivalent duration. Condition No.5 - They will be eligible for payment of allowance in lieu of kilometrage at 120 kms per day at the rates applicable to them if posted at their Head quarters. From the above conditions referred to, the said transfer is not a permanent. It's tenure was for three years; and it was a voluntary decision of the claimant to opt for the said post for that tenure. Condition No.5 referred supra indicates that the claimant would be eligible for allowances in lieu of kilometerage at 120 - 13 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 kms per day at the rates applicable to those posted at their head quarters. The said condition indicates that he was not suffered any loss of allowance. 23. The claimant did not produce any materials to show the exact amount of allowance he was receiving in lieu of the kilometer allowance after he was transferred to the post of PRC/CRC as per the above said transfer condition. He has not produced salary bill subsequent to the issue of Ex.P23. Therefore, he has not lost any income due to change of post. In view of these reasons, claimant is not entitled to compensation for the alleged loss of income for 'kilometer allowances' as awarded by the Tribunal. 24. It is true that the Tribunal has not awarded any amount of compensation towards loss of amenities. It is also true that claimant has not filed any appeal for enhancement of the compensation. However, considering the peculiar facts and circumstances of the present case and denial of compensation in respect of loss of kilometer allowance, it is deemed appropriate to award compensation under the head - 14 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 loss of amenities. Claimant is suffering permanent disability to an extent of 22% to the whole body. It would certainly affect his day to day life. He has to suffer pain, agony inconvenience in doing his regular work. He may have to live with these difficulties till the end of his life. No amount of compensation is awarded under the head loss of future earning capacity due to permanent disability since claimant is a government servant and his disability has not affected his earning. 25. Learned counsel for the appellant also contends that the amount of compensation awarded for availing leave is not tenable. The records produced by the claimant i.e. especially availing of the leave indicates that he had lost his earned leave. Had he saved the earned leave, he could have got financial benefit at the time of his retirement. A letter issued by Railway department dated 04.07.2012, signed by Senior Divisional Personnel Officer, Southern Railway, shows that the claimant had not received salary from the month of February, 2012 to June, 2012 since he had no any kind of leave in his account due to availing long period of sick leave. - 15 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 He lost salary for a period of 9 months. Considering these facts, the Tribunal has awarded compensation of Rs.4,71,468/- towards loss of earnings during laid up period. 26. To assess the said loss, the Tribunal has relied upon Ex.P11. As rightly contended by the learned counsel for the claimant, the said salary consist of arrears of other allowances, therefore it is not the regular salary, which the claimant would receive in normal circumstances. In Ex.P11, along with the basic pay, he got arrears of basic pay, DA, arrears of DA, HRA, arrears of HRA, kilometer allowance and arrears of kilometer allowance, etc., Therefore, if the said arrears are deducted the Net salary he would receive was Rs.56,004/- per month. As stated above, he lost income of 9 months by availing earned leave and lost salary for availing leave. He is entitled for the same. The Tribunal has made mistake while calculating the compensation, which needs to be corrected. 27. For the above said discussion, claimant is entitled for following amount of compensation: - 16 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 Sl.No Particulars Amount in Rs. 1. Pain and suffering 60,000 2. Medical expenses 1,41,200 3. Special diet, conveyance charges and attendant charges 30,000 4. Future medical expenses 30,000 5. Loss of income due to availing of earned leave and availing leave without pay 5,04,036 6. Loss of amenities 1,00,000 Total 8,65,236 Rounded off Rs.8,66,000/- 28. There is no dispute regarding liability of respondent to pay the compensation. The claimant is also entitled for interest on the compensation from the date of the petition till its realization. 29. For the aforesaid discussions, point No.1 is answered 'partly in the affirmative' and pass the following: ORDER i. The appeal is allowed in part. ii. The judgment and award dated 01.06.2013 passed by the XXI ACMM and XXIII Additional Small Causes Court, Bengaluru in MVC.No.7040/2011 is modified. - 17 - HC-KAR NC: 2025:KHC:26559 MFA No. 7759 of 2013 iii. The claimant is entitled for a compensation of Rs.8,66,000/- as against Rs.10,75,168/- awarded by the Tribunal, along with interest @ 6% per annum from the date of the petition till its realization. iv. Respondent No.1 shall deposit the said amount of compensation within a period of six weeks from the date of award. v. Remaining portion of the award of the Tribunal is not disturbed. vi. Whatever the amount deposited by the insurer shall be transmitted to the Tribunal for disbursement to the claimant. vii. Send back the TCR along with the copy of the judgment to the Tribunal. Sd/- (UMESH M ADIGA) JUDGE AG List No.: 1 Sl No.: 39