- 1 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 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.102245 OF 2016 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.102246 OF 2016 IN M.F.A. NO.102245 OF 2016 BETWEEN: SHIVAYOGI S/O. VIRUPAXAPPA WADLIKOPPA @ WADNIKOPPA, AGE: 30 YEARS, OCC: MASON, NOW NIL, R/O: PASHUPATIHAL, PIN-581117, TQ: KUNDAGOL, DIST: DHARWAD. …APPELLANT (BY SRI HANAMANT R. LATUR, ADVOCATE) AND: 1. KIRAN S/O. KALLANAGOUDA PATIL, AGE: 50 YEARS, OCC: BUSINESS, R/O: KARIGOUDA COMPLEX, TAJ BAWAD ROAD, VIJAYAPUR, PIN-586101,DIST: VIJAYAPUR. 2. THE RELIANCE GENERAL INSURANCE CO. LTD., V.A. KALBURGI SQUARE, CTS NO.474, DESHPANDE NAGAR, DESAI CROSS, HUBBALLI-580020. 3. MOHAMMAD HANIF S/O. MOULASAB IMARATWAL, AGE: 31 YEARS, OCC: BUSINESS, R/O: MANAGULI, BASE/AGASI, BASAVANABAGEWADI ROAD, VIJAYAPUR-586101, DIST: VIJAYAPUR. …RESPONDENTS (BY SRI NAGARAJ C.KOLLOORI, ADVOCATE FOR R2; R1 AND R3-SERVICE OF NOTICE DISPENSED WITH.) Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT & AWARD PASSED BY COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, IN MVC NO.238/2013 DATED 31.12.2015 AND FIX ENTIRE LIABILITY ON RESPONDENT NO.2, IN THE INTEREST OF JUSTICE AND EQUITY. IN M.F.A. NO.102246 OF 2016 BETWEEN: KUMAR DYAMANNA S/O. KALLAPPA TAVARAGERI, AGE: 13 YEARS, OCC: STUDENT, NOW NIL, R/O: PASHUPATIHAL, PIN-581117, TQ: KUNDAGOL, DIST: DHARWAD, SINCE MINOR REP. BY HIS NATURAL GUARDIAN FATHER- SRI KALLAPPA TAVARAGERI, AGE: 45 YEARS, OCC: AGRICULTURE AND MILK VENDING, R/O: HINDASAGERI, POST: JINNUR, TQ: KALAGHATAGI, DIST: DHARWAD. …APPELLANT (BY SRI HANAMANT R.LATUR, ADVOCATE) AND: 1. KIRAN S/O. KALLANAGOUDA PATIL, AGE: 50 YEARS, OCC: BUSINESS, R/O: KARIGOUDA COMPLEX, TAJ BAWAD ROAD, VIJAYAPUR, PIN-586101, DIST: VIJAYAPUR. 2. THE RELIANCE GENERAL INSURANCE CO. LTD., V.A. KALBURGI SQUARE, CTS NO.474, DESHPANDE NAGAR, DESAI CROSS, HUBBALLI-580020. 3. MOHAMMAD HANIF S/O. MOULASAB IMARATWAL, AGE: 31 YEARS, OCC: BUSINESS, R/O: MANAGULI, BASE/AGASI, - 3 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 BASAVANABAGEWADI ROAD, VIJAYAPUR-586101, DIST: VIJAYAPUR. …RESPONDENTS (BY SRI NAGARAJ C.KOLLOORI, ADVOCATE FOR R2; R1 AND R3 – SERVICE OF NOTICE DISPENSED WITH.) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD PASSED BY COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M. AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, DHARWAD, IN MVC NO.239/2013 DATED 31.12.2015 AND FIX ENTIRE LIABILITY ON RESPONDENT NO.2, IN THE INTEREST OF JUSTICE AND EQUITY. THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) These appeals are filed by the claimants challenging the judgment and award dated 31.12.2015, passed by the Principal Senior Civil Judge and CJM and Addl. MACT, Dharwad, in MVC No.238/2013 and MVC No.239/2013, questioning 15% of rashness and negligence attributed on the part of the owner of the motorcycle and also for enhancement of compensation. 2. Heard the arguments and perused the material placed before the Court. - 4 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 3. The occurrence of accident, injuries sustained by the claimant, coverage of insurance are not in dispute in this case. 4. On 15.04.2012, the claimant was riding the motorcycle bearing No.KA-25/X-1782 and there were other two pillion riders including one child of 10 years old, which dashed against the car No.KA-28/A-9555, due to which the claimant and others sustained injuries. The tribunal while awarding compensation attributed 15% of rashness and negligence on the part of the claimant on the reason that there were three persons riding on the motorcycle and it is an offence. Therefore, attributed 15% of rashness and negligence on the part of the claimant. 5. The complaint, FIR, spot mahazar, charge sheet, all would indicate that the accident is caused due to entire rash and negligent driving of the car. The offence of rashness and negligence is fastened on the driver of the car. Just because there are three persons riding on the motorcycle, that is not the reason for attributing rashness and negligence on the part of the claimant. Though riding three persons on - 5 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 the motorcycle is an offence, that cannot be said that it contributes rashness and negligence. The aspect of rashness and negligence is considered on the principle of ‘Res Ipsa Loquitur’, it means the thing speaks for itself. Therefore, the motorcycle was on its correct side, but the car by coming to the wrong side of the road, dashed against the motorcycle. Under the circumstances the accident was caused. Therefore the accident is caused entirely due to the rashness and negligent driving of the car by its driver. Therefore attribution of 15% of rashness and negligence on the part of the driver of the motorcycle is hereby set aside. The entire compensation shall be paid by the Insurance Company. MFA No.102245/2016 6. In this appeal, from the medical evidence on record it is proved that the claimant has suffered the following injuries. “Fracture of right clavicle 2/3rd and grievous injury to face, shoulder joint, both hands, back and legs and other multiple injuries all over the body.” - 6 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 7. The tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Pain and suffering. 40,000 2. Loss of income during treatment period. 24,000 3. Medical expenses. 100 4. Loss of future earning. 61,200 5. Loss of amenities, conveyance, extra nourishment, diet, etc.,. 15,000 Total: 1,40,300 8. Considering the nature of injuries sustained, compensation awarded by tribunal is marginally lesser side under the head Conveyance, attendant charges, nourishment, diet, etc., and no compensation is awarded towards loss of amenities in life. The compensation awarded by the tribunal towards other heads is just and proper and hence left unaltered. Therefore, this Court deems it appropriate to award enhanced global compensation of Rs.30,000/- along with interest at the rate of 6% p.a. from the date of petition till realization, which would meet the ends of justice. - 7 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 9. Therefore, the claimant is entitled for enhanced global compensation of Rs.30,000/- along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, in addition to Rs.1,40,300/- awarded by the Tribunal. The Insurance Company is directed to deposit the entire compensation along with interest within a period of eight weeks from the date of receipt of a certified copy of this judgment. MFA No.102246/2016. 10. In the present case, from the medical evidence on record it is proved that the claimant had suffered the following injuries. 1. Patient C/o pain in right leg-grade-4, deformity of right leg 1/3rd, ADL affected Limping gait. 2. Pain increase on walking, difficulty in squatting and SCL, sometimes cannot squat and sl due to pain cannot walk fast and run. 3. Scar over right foot, and medial aspect of leg 20x15 cms, graft taken from left thigh. 4. Thickening present over tibia shaft. Tenderness over tibia shaft. - 8 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 5. Wasting of thigh muscles and leg 3 cms. 6. Power of leg 4/5 shorting 1 inch. 7. Mobility component: ankle: 30% loss, Flexion and extension. 8. Stability components lower limb. 9. Climbing stairs/standing on affected limb/squatting on floor/sitting cross legged /kneeling/walking on slope affected: 40% loss. 10. Disturbance of coordination – fair – 10% extra points 6% (pain, deformity, loss of sensation, complications, shorting) On 3-4-2014 X ray was taken at KIMS hospital Hubli and it show malunited fracture tibia – 1/3. Dia : malunited fracture tibia, post traumatic stiffness of ankle. 11. The tribunal has awarded compensation under various heads as under: Sl. No. Heads. Amount in (Rs.) 1. Pain and suffering. 60,000 2. Loss of income during treatment period. 10,000 3. Medical expenses. 37,515 4. Future loss of income. 1,00,000 5. Loss of amenities, conveyance, extra nourishment, diet, etc.,. 15,000 Total: 2,22,515 - 9 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 12. In this case, a minor boy aged 13 years old having sustained injuries stated above, in a road traffic accident occurred on 15.04.2012, had sustained 30% of permanent physical disability to the upper limb, as per assessment made by the doctor PW.5. The tribunal by considering only 10% of disability has awarded compensation of Rs.2,22,515/- along with interest at the rate of 8% p.a. from the date of petition till the date of its realization. 13. Considering the nature of injuries sustained and disability occurred, the tribunal has awarded lesser compensation. Therefore, the claimant is entitled for enhancement of compensation. 14. For the injuries sustained by minor children, law is laid down by the Hon’ble Supreme Court in the case of Master Mallikarjun vs. Divisional Manager, the National Insurance Company Limited and another, reported in AIR 2014 SC 736. 15. Having considered the claimant being a minor boy of aged 13 years old, sustained grievous injuries stated - 10 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 above, the tribunal has held 10% of permanent physical disability to the whole body, which is lesser side. Considering the injuries sustained by the minor boy, and applying the principle of law laid down by the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar and another reported in (2011) 1 SCC 343, it is appropriate to consider the claimant has sustained 15% of permanent physical disability. Accordingly it is considered. Therefore, by following the decision in Master Mallikarjun (supra), the compensation is awarded as under: Sl. No. Heads. Amount in (Rs.) 1. Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability. 3,00,000 2. Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization. 25,000 3. Medical and incidental expenses during the period of hospitalization. 37,515 - 11 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 4. Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment. 25,000 Total: 3,87,515 16. Therefore, the claimant is entitled for total compensation of Rs.3,87,515/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.2,22,515/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within a period of eight weeks from the date of receipt of a certified copy of this judgment. 17. In the result, I proceed to pass the following: ORDER i) Both the appeals filed by the claimants are allowed in part. ii) The judgment and awards dated 31.12.2015, passed by the Principal Senior Civil Judge and CJM and Addl. MACT, Dharwad, in MVC No.238/2013 and MVC No.239/2013, are modified. iii) The claimant in MVC No.238/2013 is entitled for enhanced global compensation of - 12 - NC: 2025:KHC-D:1948 MFA No. 102245 of 2016 C/W MFA No. 102246 of 2016 Rs.30,000/- along with interest at the rate of 6% p.a. from the date of petition till its realization, in addition to what has been awarded by the tribunal. iv) The claimant in MVC No.239/2013 is entitled for total compensation of Rs.3,87,515/- along with interest at the rate of 6% p.a. from the date of petition till its realization. v) The rashness and negligence attributed by the tribunal on the owner of the motorcycle at 15% is hereby set aside. vi) The insurance company shall deposit the entire amount of compensation within a period of eight weeks from the date of receipt of a copy of this judgment. vii) Send a copy of this judgment to the trial Court. viii) No order as to costs. ix) Draw award accordingly. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD. 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