- 1 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF JULY, 2025 PRESENT THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL NO.102017 OF 2017(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO.101446 OF 2017(MV-I) IN MFA NO.102017/2017: BETWEEN: MODINSAB S/O MEHABUBSAB MANIYAR AGE: 42 YEARS, OCC: WELDING WORK, R/O: HANAMASAGAR, TQ: KUSHTAGI, DIST: KOPPAL. …APPELLANT (BY SRI. VIJAY M. MALALI FOR SRI. S.R. NEMAGOUDA, ADVOCATES) AND: 1. RAJESAB S/O HUSAINSAB SOPPI AGE: 37 YEARS, OCC: DRIVER OF VEHICLE NO.KA-25/C-9553, R/O: ANNIGERI, TQ: DIST: GADAG-582201. 2. JYOTHI C. GANDI AGE: MAJOR, OCC: BUSINESS, OWNER OF VEHICLE NO.KA-25/C-9553, R/O: BHARAT TIMBER COM. NEST TO ELECTRICAL KARVAR ROAD, HUBBALLI, BHARAT MILLS OLD-580020. 3. THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., KALABURAGI, MANSION 4TH FLOOR, OPP MUNICIPAL CORPORATION, LAMINGTON ROAD, HUBBALLI-580020. …RESPONDENTS (BY SRI. M.K. SOUDAGAR, ADVOCATE FOR R3; NOTICE TO R1 AND R2-SERVED) VIJAYALAKSHMI M KANKUPPI Digitally signed by VIJAYALAKSHMI M KANKUPPI Location: High Court of Karnataka, Dharwad Bench Date: 2025.08.01 10:44:59 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT 1988 PRAYING TO, ALLOW THIS MISCELLANEOUS FIRST APPEAL AND ENHANCE THE COMPENSATION AS PRAYED FOR IN CLAIM PETITION BY MODIFYING THE JUDGMENT DATED 28.02.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL KUSHTAGI IN MVC NO.220/2015 IN THE INTEREST OF JUSTICE. IN MFA NO.101446/2017: BETWEEN: THE MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., REP. BY ASSISTANT MANAGER, BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 1ST FLOOR, KALBURGI, NOOLVI, MAGESTIC, KESUGAL ROAD, KESHWAPUR, HUBBALLI-580020. …APPELLANT (BY SRI. M.K. SOUDAGAR, ADVOCATE) AND: 1. SHRI. MODINSAB S/O. MEHABUBSAB MANIYAR, AGE: 42 YEARS, OCC: WELDING WORK, R/O: HANAMASAGAR, TAL: KUSHTAGI, DIST: KOPPAL-582205. 2. SHRI. RAJESAB S/O. HUSAINSAB SOPPI, AGE: 37 YEARS, OCC: DRIVER, R/O: ANNIGERI, TAL: GADAG, DIST: GADAG. 3. JYOTI C. GANDHI, AGE: MAJOR, OCC: BUSINESS, R/O: BHARAT TIMBER COM. NEST TO ELECTRICAL KARWAR ROAD, HUBBALLI, BHARAT MILLS OLD. …RESPONDENTS (BY SRI. VIJAY M. MALALI FOR SRI. S.R. NEMAGOUDA, ADVOCATES FOR R1; NOTICE TO R2 AND R3 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT PRAYING TO CALL FOR RECORDS IN CASE MVC NO.220/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE & MACT KUSHTAGI AND SET ASIDE THE JUDGMENT AND AWARD DATED 28.02.2017 BY ALLOWING THIS APPEAL WITH COST AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A.PATIL) MFA No.102017/2017 is filed by the claimant/injured seeking enhancement of compensation, whereas MFA No.101446/2017 is filed by the insurance company challenging the judgment and award dated 28.02.2017 passed in MVC No.220/2015 on the file of learned Senior Civil Judge and MACT, Kushtagi1. 2. Briefly stated the facts are that on 02.12.2013 at about 4.30 p.m., the claimant Modinsab along with his wife was proceeding on motorcycle bearing registration No.KA- 17/J-2368 towards Hanumasagar and when they reached near Yalabunachi cross, at that time, driver of lorry bearing reg.KA-25-C-9553 came in a rash and negligent manner and dashed against the motorcycle of the claimant. As a result of which, the claimant-Modinsab fell down and sustained 1 For short, ‘Tribunal’ - 4 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 grievous injuries. Immediately he was shifted to Government Hospital for first aid treatment. Thereafter, he took treatment at various hospitals for the injuries sustained. It is averred that the claimant was aged 40 years at the time of the accident, doing welding work and earning a sum of Rs.15,000/- per month. Hence, he filed claim petition seeking compensation. 3. Before the Tribunal, the respondents appeared and filed written statements denying the entire averments made in the claim petition. Respondent No.3/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. Therefore, prayed for dismissal of the claim petition. 4. The Tribunal on appreciation of oral and documentary evidence on record, awarded a total compensation of Rs.3,54,000/- with interest at 8% per annum from the date of petition till the date of realization. Aggrieved by the same, the claimant/injured as well as the - 5 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 insurance company are before this Court challenging the quantum of compensation. 5. Learned counsel M.K. Soudagar for the appellant- insurer submits that the Tribunal has committed a grave error in considering the disability of the injured at 33%, which is contrary to the evidence of doctor PW2 as well as documentary evidence. It is submitted that PW2-doctor opined that the claimant has suffered disability to an extent of 30% and in his cross-examination, he fairly admitted that 10% would be disability of the claimant to the whole body. However, the Tribunal committed an error in considering the disability at 33% which requires to be modified. It is submitted that the Tribunal committed an error in considering the age of the injured at 35 years and applied multiplier of 16. As per Ex.P8-Driving License, age of the injured is 41 years and appropriate multiplier would be 14. It is further contended that the Tribunal awarded interest on the compensation amount at the rate of 8% per annum, which is on the higher side. Thus, he seeks to modify the impugned judgment and award of the Tribunal. - 6 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 6. Per contra, learned counsel for the appellant/claimant supports the impugned judgment and award of the Tribunal and contends that the claimant was working as welder and taking note of his avocation as well as oral evidence of the doctor, the Tribunal by a well reasoned judgment, has come to a conclusion that the disability suffered by the claimant is 33% and awarded just and reasonable compensation, which does not warrant any interference. He submitted that the income assessed by the Tribunal at Rs.5,000/- is on the lower side and it requires to be modified. It is submitted that the Tribunal has failed to take note of the medical bills produced by the claimant at Ex.P12, which is amounting to Rs.89,920/-. Thus, he seeks to consider the same by allowing the appeal filed by the claimant. 7. We have heard the learned counsel for the respective parties and perused the appeal papers along with original records. - 7 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 8. Having heard the learned counsel for the parties and on perusal of the material available on record, the following point would arise for our consideration in the present appeals: Whether the quantum of compensation awarded by the Tribunal is just and proper in the facts and circumstances of the case? 9. Answer to the above point would be in the “partly affirmative” for the following reasons: (a) The parties to the proceedings do not dispute the accident and the liability of the Insurance Company. The material on record indicates that the claimant was working as welder and as per the evidence of PW1, due to the accidental injuries, he underwent surgery for fracture of both bones. The evidence of PW2-doctor, who has deposed before the Tribunal, indicates that the claimant is unable to move right forearm completely. The Tribunal considering the evidence of doctor PW2 coupled with Ex.P19-disability certificate and by judicious application of mind, has come to a conclusion that the disability suffered by the injured is - 8 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 33%. The said finding recorded by the Tribunal is based on oral and documentary evidence on record, which in our view is just and proper and requires no interference. The contention that normally 1/3rd of disability to a particular limb is required to be taken into account for the whole body disability. However, this cannot be applied in a routine manner. In the case on hand, the claimant is a welder. More particularly, the disability suffered to his right hand adversely affects on his avocation as welder due to disability. Therefore, we are of the considered view that the Tribunal has rightly justified in assessing the disability of the claimant at 33%. (b) The Tribunal wrongly considered the age of the injured at 35 years. As per Ex.P8-Driving license, the date of birth of the claimant is 2.10.1972. According to Ex.P8, the age of the claimant as on the date of the accident is 41 years and 4 months. Therefore, taking note of Ex.P8, the age of the claimant is considered as 41 years and appropriate multiplier would be 14. - 9 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 (c) The Tribunal also committed an error in assessing the income of the injured at Rs.5,000/- per month. The claimant has not produced any documentary evidence to establish the exact income of the injured. Therefore, this Court is of the considered view that, in the absence of any cogent and acceptable evidence on record, this Court and the Lok Adalaths normally place reliance on the notional income chart prepared by the Karnataka State Legal Services Authority to assess the income in the motor vehicle accident claims. In the instant case, the accident is of the year 2014 and as per the chart referred to supra, the notional income of the injured is required to be assessed at Rs.7,500/- per month. Accordingly, this Court re-assesses the income of the injured at Rs.7,500/- per month. Accordingly, the claimant would be entitled to compensation on the head of loss of income due to disability as under: Rs.7,500 x 12 x 14 x 33/100 = Rs.4,15,800/- (d) The Tribunal awarded a meager compensation of Rs.4,000/- towards medical expenses. The claimants has - 10 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 produced Ex.P12-medical bills and the prescription, which indicates that the claimant has taken treatment in different hospitals and undergone surgery. Even though the claimant has produced those bills, but the Tribunal without any justifiable reasons rejected the same. Therefore, after calculating the bills on record, we are of the considered view that the claimant would be entitled to Rs.70,000/- towards medical expenses. (e) The Tribunal failed to award any compensation towards loss of amenities, which the claimant would be entitled to Rs.20,000/-. (f) The award of compensation by the Tribunal under other heads are just and reasonable and does not call for interference. Thus, the claimant is entitled for the following modified compensation: 1 Pain and suffering Rs.10,000/- 2 Medical expenses Rs.70,000/- 3 Loss of future earning due to disability Rs.4,15,800/- 4 Traveling expenses Rs.3,200/- 5. Future medical expenses Rs.20,000/- 6. Loss of amenities Rs.20,000/- Total Rs.5,39,000/- - 11 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 10. Thus, the claimant would be entitled to total compensation of Rs.5,39,000/- as against Rs.3,54,000/- awarded by the Tribunal. 11. The Tribunal has committed an error in awarding rate of interest at 8% per annum, which appears to be on the higher side. Normally, this Court and the Hon’ble Apex Court taking note of prevailing rate of interest paid on the fixed deposit by the nationalized banks, would award interest at 6% per annum. Therefore, in the present case also, the claimant is entitled to interest on the compensation amount at the rate of 6% per annum from the date of petition till realization. 12. Hence, we proceed to pass the following: ORDER i. Both the appeals are allowed in part. ii. The impugned judgment and award of the Tribunal is modified holding that the claimant is entitled to total compensation of Rs.5,39,000/- as against Rs.3,54,000/- awarded by the Tribunal. - 12 - HC-KAR NC: 2025:KHC-D:9270-DB MFA No. 102017 of 2017 C/W MFA No. 101446 of 2017 iii. The entire compensation amount shall carry interest at the rate of 6% per annum from the date of petition till date of payment. iv. The insurance company shall deposit the aforesaid compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. v. The amount in deposit be transmitted to the Tribunal along with TCR forthwith. vi. Draw modified award accordingly. vii. No order as to costs. Sd/- (S.SUNIL DUTT YADAV) JUDGE Sd/- (VIJAYKUMAR A.PATIL) JUDGE JTR, CT:VP LIST NO.: 1 SL NO.: 38.1,38.2