- 1 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13TH DAY OF AUGUST, 2025 PRESENT THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL M.F.A. NO.103904 OF 2018 (MV-I) C/W. MFA CROB NO.100066 OF 2019 IN MFA NO. 103904 OF 2018 BETWEEN THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED, A.M. ARCADE, NEAR VIDYARTHI BHAVAN, C. G. HOSPITAL ROAD, DAVANAGERE, BY ITS DULY CONSTITUTED ATTORNEY. ...APPELLANT (BY SRI. G. N. RAICHUR, ADVOCATE) AND 1. CHANDRAPRAKASH @ CHANDRAPRAKASHNAYAK, S/O. BHASKARNAYAK, AGE: 34 YEARS, OCC: PROPRIETOR OF COMPUTER CENTER & AGENT ADVISOR OF RELIANCE INSURANCE COMPANY, R/O. HEGGODLU (AT) SIDDAPUR POST, R/O. KUNDAPUR, DIST: UDUPI, NOW @ VIDYANAGAR, TQ: RANEBENNUR, DIST: HAVERI. 2. M/S. DURGAMBA MOTORS, R/O. NH-17, HANGLUR KUNDAPUR, HANGLUR, KUNDAPUR-510039. …RESPONDENTS (BY SRI. G. S. HULMANI, ADV. FOR R1; NOTICE TO R2 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S. 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 25.07.2018 PASSED IN MVC NO.109/2015 BY THE COURT OF THE IIND ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, RANEBENNUR, BY EXONERATING THE APPELLANT INSURANCE Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 COMPANY FROM THE LIABILITY BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY. IN MFA CROB NO.100066 OF 2019 BETWEEN CHANDRAPRAKASH @ CHANDRAPRAKASHNAYAK, S/O. BHASKARNAYAK, AGE: 35 YEARS, OCC: NOW NIL, R/O. HEGGODLU, AT POST: SIDDAPUR, TQ: KUNDAPUR, DIST: UDUPI, NOW @ VIDYANAGAR, TQ: RANEBENNUR, DIST: HAVERI-581115. ...CROSS OBJECTOR (BY SRI. G. S. HULMANI, ADVOCATE) AND 1. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., A. M. ARCADE, NEAR VIDYARTHI BHAVAN, C. G. HOSPITAL ROAD, DAVANGERE-577004. 2. M/S. DURGAMABA MOTORS, R/O. NH-17, HANGLUR, TQ: KUNDAPURA, DIST: UDUPI-576217. …RESPONDENTS (BY SRI. G. N. RAICHUR, ADV. FOR R1; NOTICE TO R2 SERVED) THIS MFA CROB IN MFA NO.103904/2018 IS FILED U/O.41 RULE 22 OF C.P.C., PRAYING TO DISMISS THE APPEAL FILED BY THE APPELLANT INSURANCE COMPANY AND MODIFY THE JUDGMENT AND AWARD PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND ADDL. MACT, RANEBENNUR IN MVC NO.109/2015 DT. 25TH JULY 2018 AND ENHANCE THE COMPENSATION AWARDED BY TRIBUNAL, AS PRAYED IN THE CLAIM PETITION AND ETC. THIS APPEAL AND CROB PETITION HAVING BEEN HEARD AND RESERVED ON 07.08.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL - 3 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) MFA No.103904/2018 is filed by the appellant/ Insurance Company, whereas MFA CROB No.100066/2019 is filed by the Cross Objector/claimant seeking enhancement of compensation. The appeal and cross objection are arising out of the judgment and award dated 25.07.2018 passed in MVC No.109/2015 on the file of learned II Addl. Senior Civil Judge and Addl. MACT, Ranebennur1. 2. Brief facts are that on 10.07.2014 at about 12.30 p.m., the claimant - Chandraprakash was proceeding on a motorcycle bearing registration No.KA-20/EE-6581 near Shingeri Kodlu, Kullange village. At that time, the bus bearing reg.KA-20/B-7544 came in a rash and negligent manner and dashed against the motorcycle of the claimant. As a result of which, the claimant-Chandraprakash fell down and sustained grievous injuries. Immediately he was shifted to Government Hospital, Kundapur and thereafter he was shifted to Kasturba Hospital, Manipal. For further treatment, he was shifted to 1 For short, ‘Tribunal’ - 4 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 Manipal Hospital, Bengaluru for the injuries sustained. It is averred that the claimant was aged about 31 years at the time of the accident and he was a Proprietor of Computer Centre and agent-cum-advisor of Reliance Life Insurance Company Limited and was earning annual income of Rs.5,00,000/-. Hence, he filed claim petition seeking compensation for Rs.64,00,000/-. 3. The respondents No.1 and 2 filed separate written statements denying the entire averments made in the claim petition. Respondent No.2/Insurance Company denied the occupation and income of the injured. It was contended that the accident took place due to rash and negligent riding of rider i.e., claimant himself. Hence, they sought to dismiss the claim petition. 4. The Tribunal recorded the evidence, claimant examined himself as PW.1 and examined Doctor-V.Vasudeva Rao as PW.2 and got marked Exs.P.1 to P.41. The respondent No.2 examined RW.1 and got marked Exs.R.1 to R.3. 5. The Tribunal on appreciation of the oral and documentary evidence on record, awarded total compensation of Rs.33,40,000/- with interest at the rate of 6% per annum - 5 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 from the date of petition till the date of realization by directing the appellant-Insurance Company to pay the compensation. Being aggrieved, the insurance company and the injured claimant have filed this appeal and cross objection, respectively. 6. Learned counsel Sri.G.N.Raichur for the appellant- insurer submits that the Tribunal has committed a grave error in recording the finding that the driver of the bus insured by the appellant was negligent and caused the accident. The said finding would run contrary to Ex.P.2-the police complaint given by the driver of the Durgadevi bus. The version in the complaint is immediately after the occurrence of accident, which was conveniently changed by the Police in collusion with the injured claimant and charge sheet was filed against the driver of the insured bus. It is further submitted that Exs.R.2 and R.3 are the letters written by the Investigating Officer to the RTO requesting for inspection of the motorbike and to the Karsturba Medical Hospital for Wound Certificate, wherein the Investigating Officer has clearly stated that the accident is caused due to bike skid. These documents corroborate with the Ex.P.2 which indicates that the accident was caused by the - 6 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 claimant himself and the accident was by self skid. However, the Police, in collusion with the claimant, filed the charge sheet against the driver of the insured bus. It is submitted that injured claimant has not denied Ex.P.2 and now he cannot partly rely on Ex.P.2 and partly on the charge sheet which is impermissible. It is further submitted that the burden is on the injured claimant to prove issue No.1 with regard to negligence of driver of the bus by cogent evidence and except Ex.P.3, no other documents support the version of the injured claimant and the Tribunal ought to have rejected the version of the injured claimant with regard to the negligence. It is also submitted that the Tribunal on assessing the oral and documentary evidence on record ought to have held that the injured bus has been falsely implicated in the accident to grab the compensation. The appreciation of evidence by the Tribunal is incorrect and calls for interference. It is contended that the Tribunal without any basis, assessed the income of the injured at Rs.18,000/- per month which is required to be reassessed notionally as per the notional income chart prepared by the Karnataka State Legal Services Authority. He further submits - 7 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 that the disability is also assessed on the higher side. Hence, he seeks to allow the appeal filed by the insurance company. 7. Per contra, Sri.Girish S.Hulmani, learned counsel appearing for the cross objector-injured claimant supports the impugned judgment and award of the Tribunal insofar as the finding of the Tribunal with regard to the negligence and liability. It is submitted that the Tribunal has committed an error in assessing the income of the injured at Rs.18,000/- per month as the injured prior to the accident was earning Rs.5,00,000/- per annum. It is further submitted that the Tribunal erred in assessing the disability of the injured at 70% which is required to be reassessed at 100% as his right hand is amputed. It is also submitted that the award of compensation on other heads is also required to be enhanced appropriately by allowing the cross objection filed by the injured claimant. 8. We have heard the arguments of the learned counsel for the appellant-insurance company, learned counsel for the cross objector-injured claimant and meticulously perused the material available on record including the Tribunal records. - 8 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 9. The point that arise for consideration in this appeal and cross objection is: Whether the impugned judgment and award of the Tribunal is sustainable in law? 10. The pleading and evidence on record indicate that in a road accident dated 10.07.2014 the claimant sustained grievous injuries. One Sri.T.Krishna Naik the driver of Durgadevi bus reported the accident to the jurisdictional Police on 10.07.2014. The police complaint is marked at Ex.P.2 which indicates that accident is caused due to skid of bike and the rider sustained injuries. The complainant is the driver of another bus who claimed that the claimant overtook his bus and skidded on the road and sustained injuries. Based on Ex.P.2, the jurisdictional Police registered FIR in Crime No.112/2014. During the course of investigation, the Police recorded further statement of the complainant which is marked at Ex.P.3. The complainant in his further statement clearly stated that the rider of the bike was proceeding and he overtook his bus and thereafter, Durgamba bus touched the bike which resulted in accident. The Police have also recorded - 9 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 the statements of other eyewitnesses to the incident who stated that the accident is caused due to the negligence of the driver of the bus bearing registration No.KA-20/B-7544. The statements of the eyewitnesses are marked as Exs.P.11 to P.13. The conductor of bus involved in the accident has clearly stated with regard to the involvement of the insured bus in the accident and his statement is marked as Ex.P.13. Further, Ex.R.1-the MLC register extract issued by the Government Hospital, Kundapura indicates that the claimant was unconscious when he was brought to the hospital. The Police recorded the statement of the claimant which is marked at Ex.P.9, wherein he narrated the incident. Considering the investigation material, the Investigating Officer filed the charge sheet against the driver of the bus insured by the appellant. The Tribunal on appreciation of the oral evidence of PW.1 and considering Exs.P.1 to P.14 has recorded a clear finding that the driver of the bus insured by the appellant was negligent and caused the accident and directed the appellant insurance company to indemnify the loss suffered by the claimant. We do not find any error or perversity in the finding recorded by the Tribunal with regard to the aspect of negligence and the liability - 10 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 calling for interference in the appeal filed by the insurance company. 11. Insofar as quantum of compensation is concerned, the Tribunal assessed the income of the injured at Rs.18,000/- per month. The claimant contended that he was earning Rs.5,00,000/- per annum prior to the accident as he was working as agent-cum-advisor of the insurance company and also a proprietor of computer centre. The license for running the computer centre is produced at Exs.P.25 to P.28 and also produced Ex.P.29 as his salary certificate issued by Makarajyoti Chits Pvt.Ltd., Mangalore. Ex.P.30 is a letter of Reliance Life Insurance Company and similarly, Exs.P.31 to P.34 are the letters issued by the same insurance company. These documents do not indicate the actual income of the injured claimant nor demonstrate that there is a loss of income due to the disability suffered by him. The Tribunal considering Exs.P.35 to P.37 the income tax returns of 2011-12, 2012-13 and 2013-14 and considering the avocation of the injured, assessed the income at Rs.18,000/- per month. We do not find any error in the assessment of the income of the claimant by the Tribunal calling for interference. - 11 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 12. The injured claimant sustained following injuries as per Ex.P.8: “1) Closed head injury with diffuse axonal injury with subarachnoid hemorrhage over right temporal salcus and Bilaterial barifrontal contusions. 2) Midly displaced fracture of spinious process of T5 and T6 vertebra. 3) Distal sub-clavian artery thrombotic (traumatic). 4) Fracture of the interior margin of body of right scapula with hematoma in right faces major muscle. 5) Abrasion 2 X 3 c.m. over right knee. 6) Abrasions 0.5 X 0.5 c.m. over dorsum of right over 2nd 3rd and 4th meta capophalyngical joints. 7) Laceration 3 X 2 X 2 c.m. over left eyebrow.” 13. The claimant examined PW.2 to prove the disability. As per the evidence of PW.2, the claimant has suffered permanent physical disability and loss of physical function is around 84%. The Tribunal taking note of the fact that the claimant’s right hand below the joint is amputed, assessed the disability at 70%. No doubt, the Tribunal has assessed the disability at 70% for the purpose of determination of compensation. However, it is necessary to reassess the functional disability of the claimant taking into account his age, nature of avocation and also taking into account the Doctor’s - 12 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 opinion. To assess the disability of the claimant, it would be useful to refer the decision of the Hon’ble Supreme Court in the case of SARNAM SINGH v. SHRIRAM GENERAL INSURANCE CO. LTD. & ORS2 whereas the relevant para reads as under: “9. As to how compensation, in case where permanent disability of an injured affects his functional disability, is to be assessed has been considered by this Court, repeatedly. Reference can be made to the judgment of this Court in Mohan Soni vs. Ram Avtar Tomar And Others. In the aforesaid case the injured was working as a cart puller. As a result of the accident, his left leg was amputated. His permanent disability was assessed at 60%. The Tribunal assessed the compensation taking the loss of earning at 50% on the theory that he can still do some other work while sitting. The High Court did not disturb the finding regarding loss of income on account of disability. This Court found that the Tribunal was in error in taking the loss of earning at 50% as the injured was 55 years of age and it may be difficult for him to find a job at that stage. In fact, any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability. The same injury suffered by two different persons may affect them in different ways. Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is concerned. Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect. This Court enhanced the loss of earning capacity from 50% to 90%.” 14. The similar view has been taken by the Hon’ble Supreme Court in earlier decision also i.e., in the case of 2 2023 LiveLaw (SC) 498 - 13 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 K.JANARDHAN Vs. UNITED INDIA INSURANCE CO. LTD. & ANOTHER3. The relevant paragraph reads as under: “4. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.” 15. It would also be useful to refer to the decision of the Hon’ble Supreme Court in the case of PRATAP NARAIN SINGH DEO Vs. SRINIVAS SABATA AND ANOTHER4, wherein the Hon’ble Supreme Court has assessed the disability up to 100% to the Carpenter, who has lost his left hand above elbow. 16. It is also useful to refer the decision of the Hon’ble Supreme Court in the case of JAKIR HUSSEIN Vs. SABIR AND OTHERS5. The relevant paragraph reads as under: “15. Further, with respect to the permanent disablement suffered by the appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly 3 Civil Appeal No.5831 of 2002 disposed off on 09.05.2008 4 (1976) 1 SCC 289 5 (2015) SCCR 380 - 14 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 submitted that the appellant was examined by Dr. P.K. Upadhyay in order to prove his medical condition and the percentage of permanent disability. The doctor who has treated him stated that the appellant has one long injury from his arm up to the wrist. Due to this injury, the doctor has stated that the appellant had great difficulty to move his shoulder, wrist and elbow and pus was coming out of the injury even two years after the accident and the treatment taken by him. The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. He was once again operated upon during the pendency of the appeal before the High Court and he was hospitalised for 10 days. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. In view of the doctor's evidence in this case, the Tribunal and the High Court have erroneously taken the extent of permanent disability at 30% and 55% respectively for the calculation of amount towards the loss of future earning capacity, No doubt, the doctor has assessed the permanent disability of the appellant at 55%. However, it is important to consider the relevant fact namely that the appellant is a driver and driving the motor vehicle is the only means of livelihood for himself as well as the members of his family. Further, it is very crucial to note that the High Court has clearly observed that his right hand was completely crushed and deformed. In the case of Raj Kumar vs. Ajay Kumar (supra), this Court specifically gave the illustration of a driver who has permanent disablement of hand and stated that the loss of future earnings capacity would be virtually 100%. Therefore, clearly when it comes to loss of earning due to permanent disability, the same may be treated as 100% loss caused to the appellant since he will never be able to work as a driver again. The contention of the respondent Insurance Company that the appellant could take up any other alternative employment is no justification to avoid their vicarious liability. Hence, the loss of earning is determined by us at 54,000/- per annum. Thus, by applying the appropriate multiplier as per the principles laid down by this Court in the case of Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC - 15 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 121 the total loss of future earnings of the appellant will be at ₹ 54,000×168,64,000/-.” 17. Keeping in mind the enunciation of law laid down by the Hon’ble Supreme Court referred supra, we are of the considered view that the interest of justice would be met if the claimant-injured’s functional disability is reassessed at 85% taking note of his avocation and evidence of PW.2. Accordingly, we reassess the disability of the injured claimant at 85%. 18. Having reassessed the disability at 85%, the claimant would be entitled to an addition of 40% under the head of loss of future prospects. Our view gains support from the decision of the Hon’ble Supreme Court in the case of PAPPU DEO YADAV V. NARESH KUMAR AND ORS.6 and also from the case of JAGDISH v. MOHAN AND ORS.7 19. The compensation awarded by the Tribunal under the head of loss of amenities is altered as the compensation under the head of loss of future prospects is awarded now. The compensation awarded by the Tribunal on all other heads 6 AIR 2020 SC 4424 7 AIR 2018 SC 1347 - 16 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 except under the head of loss of future earning capacity due to permanent physical disability are retained. Thus, the injured claimant is entitled to compensation under the head of loss of future earning capacity here under: Rs.18000 + 40%=25,200 X 12 X 16 X 85% = Rs.41,12,640/- 20. The injured claimant is entitled to modified compensation on the following heads: 21. Thus, the claimant shall be entitled to total compensation of Rs.49,83,440/- as against Rs.33,40,000/- awarded by the Tribunal. The compensation amount carries interest at the rate of 6% per annum from the date of petition till realization. In result, we proceed to pass the following: Particulars Amount (in Rs.) Pain suffering 50,000/- Medical expenses 6,42,800/- Attendant charges 30,000/- Conveyance charges 30,000/- Food, diet and nourishment charges 10,000/- Loss of income during laid up period 1,08,000/- Loss of future earning capacity 41,12,640/- Total Compensation 49,83,440/- - 17 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 ORDER a) MFA.No.103904/2018 and MFA.CROB. No.100066/2019 are allowed in part. b) The impugned judgment and award of the Tribunal in MVC No.109/2015 is modified to an extent that the claimant would be entitled to total compensation of Rs.49,83,440/- as against Rs.33,40,000/- awarded by the Tribunal. c) The compensation amount shall carry interest at the rate of 6% per annum from the date of claim petition till realization. d) The appellant/Insurer shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. e) The apportionment, deposit and disbursement of enhanced compensation shall be made as per award of the Tribunal. f) Registry to transmit the amount in deposit as well as records to the Tribunal forthwith. - 18 - HC-KAR NC: 2025:KHC-D:10181-DB MFA No. 103904 of 2018 C/W MFA.CROB No. 100066 of 2019 g) Draw modified award accordingly. Sd/- (S.SUNIL DUTT YADAV) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE RH CT-AN List No.: 1 Sl No.: 2