- 1 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 103489 OF 2019 (MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 103139 OF 2019 IN MFA NO. 103489 OF 2019 BETWEEN: SHIVASHANKAR S/O. GANDHARAPPA, AGE YEARS, OCC. NIL (DISABLED), R/O. GANGAVATHI, TQ. GANGAVATHI, DIST. KOPPAL, NOW AT. BHAGYANAGAR, TQ AND DIST. KOPPAL. …APPELLANT (BY SRI. ZANZA JOSHI, ADV. FOR SRI. DATTATRAYA TIMMANNA HEBBAR, ADVOCATE) AND: 1. NAGENDRA BABU S/O. SHRIRAMULU, AGE.31 YEARS, OCC. DRIVER OF LORRY BEARING NO. AP-16/TY-3985, R/O. THALIADA, TQ AND DIST. KHAMMAM-507167, STATE ANDRA PRADESH. 2. TRINADH KUMAR DAMA S/O. SUBBARAO, AGE.40 YEARS, OCC. BUSINESS AND OWNER OF LORRY BEARING NO.AP-16/TY-3985 R/O D. NO.9-28, THOTA BAZAR, JAGGAYYAPETA-521175, Digitally signed by SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 DIST. KRISHNA STATE ANDRA PRADESH. 3. THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LTD., REPTD. BY ITS DIVISIONAL OFFICE, ARYA EDIGA HOSTEL COMPLEX, OPP: OLD BUS STAND DOUBLE ROAD, BALLARY. …RESPONDENTS (BY SRI. M. Y. KATAGI, ADV. FOR R3; NOTICE TO R1 & R2 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 10.06.2019 PASSED IN MVC NO.504/2016 ON THE FILE OF THE CIVIL JUDGE COURT (SR. DIVN) AND ADDL. MACT, KOPPAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO. 103139 OF 2019 BETWEEN: THE DIVISIONAL MANAGER, THE NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, ARYA EDIGA HOSTEL COMPLEX, OPP:OLD BUS STAND, DOUBLE ROAD, BELLARY, NOW REPRESENTED BY DULY CONSTITUTED ATTORNEY (S), NEW INDIA ASSURANCE COMPANY LTD., HUBLI. …APPELLANT (BY SRI. M. Y. KATAGI, ADVOCATE) AND: 1. SHIVASHANKAR S/O. GANGADHARAPPA, AGE: 42 YEARS, OCC: NIL (DISABLED), - 3 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 R/O. WARD NO.13, NEAR HANUMAN TEMPLE, JULY NAGAR, GANGAVATI, DIST: KOPPAL, NOW AT BHAGYANAGAR, TQ AND DIST. KOPPAL-583229. 2. NAGENDRA BABU S/O. SRIRAMULU, AGE: 30, OCC: DRIVER OF LORRY BEARING NO.AP-16/TY-3985, R/O THALLAD, TQ & DIST: KHAMMAM 507167, STATE ANDHRA PRADESH. 3. TRINADH KUMAR DAMA S/O. SUBBARAO, AGE: 43, OCC: BUSIENSS & OWNER OF LORRY BEARING NO.AP-16/TY-3985, R/O. D.NO.9-28, THOTA BAZAR, JAGGAYYAPETA 521175, DIST: KRISHNA, STATE ANDHRA PRADESH. …RESPONDENTS (BY SRI. ZANZA JOSHI, ADV. FOR SRI. DATTATRAYA TIMMANNA HEBBAR, ADV. FOR R1; NOTICE TO R2 DISPENSED WITH; NOTICE TO R3 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO CALL THE RECORDS FROM THE LOWER COURT AND ALLOW THE APPEAL AS PRAYED FOR BY SETTING ASIDE THE JUDGMENT AND AWARD DATED 10.06.2019 PASSED BY THE CIVIL JUDGE (SR.DN) AND ADDITIONAL MACT KOPPAL, IN MVC NO.504/2016 WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY. THESE APPEALS, COMING ON FOR HEARING ON IA, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR - 4 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD) These appeals are by the injured and the concerned Insurer. The appeal by the Insurer is in MFA No.103139/2019 and the appeal by the injured is in MFA No.103489/2019. The appeals are filed calling in question the judgment and award dated 10.06.2019 in M.V.C. No.504/2016 on the file of the Civil Judge (Sr.Dn) and Additional MACT, Koppal, [for short, ‘the Tribunal’]. The Tribunal has awarded a total sum of Rs.37,86,000/- to the claimant along with interest at the rate 7% p.a. with a direction that 50% of the award amount shall be kept in fixed deposit for a period of five years. The computation of the compensation as aforesaid is as follows:- Sl. No. Particulars Amount 1. Loss of earning capacity 34,56,000 2. Mental agony and pain and suffering 50,000 3. Medical expenses 1,80,000 4. Loss of amenities of permanent disability 50,000 - 5 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 5. Transport, attendant charges, conveyance, food 50,000 Total 37,86,000 2. Both Sri Zanza Joshi and Sri M.Y. Katagi, the learned counsels for the Injured and the Insurer, are categorical that there is no dispute about the accident or the injured suffering injuries in the accident or the Insurer’s liability and that the only question for consideration is whether there must be either enhancement or reduction in the compensation awarded by the Tribunal. The learned counsel also submit that the controversy is about whether this Court must re-compute the compensation awarded by the Tribunal [i] reducing the monthly income, [ii] adding future prospects, [iii] the correct multiplier to be applied and [iv] the percentage of injured’s functional disability. 3. On Monthly Income of the injured: Sri M.Y. Katagi submits that even according to the injured, he was employed in a private Firm drawing the salary of Rs.15,000/- until 2016 and only in the month of April 2016, - 6 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 the injured has started his business in partnership with three others. There is no evidence of loss of actual income to the Firm and in the absence of loss of actual income, the Tribunal could not have awarded compensation towards loss of earning capacity. However, Sri M.Y. Katagi fairly submits that the defence based on the injured being in partnership and loss of income is based on the details furnished by the injured when he approached the Insurer for a settlement, but then these documents have not been introduced in evidence. 3.1 This Court must opine that this vastly undermines the Insurer’s grievance in this regard. The Tribunal has taken the loss of income at Rs.30,000/- considering the documentary evidence viz., the letter of appointment and the injured’s bank statement when he was in employment. This Court has examined these documents, and as is pointed by Sri Zanza Joshi, there is every month credit of amount of Rs.32,000 – Rs.37,000/-. This establishes the injured’s case that he was being paid a - 7 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 salary of Rs.15,000/- per month and the additional amount is paid as a performance bonus as he was engaged as a Development Officer. 3.2 The injured has stated in his evidence that because of his injuries and his inability to recover from injuries even after two years of the accident, he has to close his business, which is a proprietary concern. These circumstances are considered to opine whether this Court must interfere with the Tribunal taking the injured’s income at Rs.30,000/- per month. This Court is not persuaded to opine that this amount results in any unjust or unreasonable compensation because it is undisputed that the injured, when aged 39 years, has set up his own business when he was in employment earning about Rs.37,000/- per month. 4. On the percentage of functional disability of the Inured: Sri M.Y. Katagi submits that the injured has not examined the Doctor who treated him and the Doctor who is examined him has issued a Certificate showing a higher percentage of disability unscientifically. Sri M.Y. Katagi - 8 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 canvases that disability of 60% is a higher disability and the Doctor who has treated the injured has issued a certificate stating that the disability would only be 18%. Again Sri. M.Y. Katagi fairly submits that the certificate is in the Insurer’s records but not in the Court records and therefore this contention cannot have any bearing. 4.2 The Doctor’s evidence is that the petitioner’s injuries have not healed and there is malunion. In fact, in the Certificate issued in April 2018 and in the evidence tendered by this Doctor in November 2018, the Doctor has spoken not just about malunion but also about infected wounds that have not healed even after two years of accident. The merits of taking the Injured’s disability at 60% is considered in the light of these circumstances and injuries suffered. 4.3 The Injured has suffered fractures of both the fibula and tibia in the two lower limbs and of the humors in the right hand. These are substantial injuries and have not healed with the Doctor opining that there is malunion of - 9 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 the bones. Based on the assessment of the physical disability, functional disability resulting in loss of earning capacity will have to be assessed. The injured had started his own business in fertilizers, and according to him as a proprietor. If because of injuries that have not healed over two years and he has to shut down his business, this Court can justly infer that assessment of 60% as functional disability does not result in unjust or unreasonable compensation. 5. On addition towards Future Prospects: Sri Zanza Joshi proposes to contend that this Court must add a percentage of the income towards loss of future prospects as the Injured has suffered a loss of income with the closure of business. With this Court upholding the Tribunal’s conclusion on the injured’s income at Rs.30,000/- per month based on certain circumstances without the injured placing on record evidence of actual income and holding that the Injured may have closed the business, this Court is of the view that a sum of Rs.30,000/- per month as taken by - 10 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 the Tribunal would also include addition towards future prospects. 6. On the Multiplier: Sri. M.Y. Katagi canvasses that the injured was aged 39 years as of the date of the accident and the multiplier should be 15 and not 16. This Court must accept Sri. M.Y. Katagi’s argument because the injured, on the date of the accident, was admittedly 39 years and the multiplier will be 15. 7. This Court must, in view of the findings as aforesaid, must re-compute the award towards loss of earning capacity. If loss of earning capacity is calculated accordingly, the amount under this head will be Description Amount Income with Future Prospects Rs.30,000.00 Annual Income Rs.3,60,000.00 Loss of Future Income with 15 as the Multiplier Rs.54,00,000.00 Loss of Earning Capacity because of the disability of 60% Rs.32,40,000.00 - 11 - NC: 2025:KHC-D:370-DB MFA No. 103489 of 2019 C/W MFA No. 103139 of 2019 Hence, the Tribunal’s award of Rs.34,56,000/- under this head will have to be reduced to Rs.32,40,000/-, but the Tribunal has awarded no amount of compensation towards loss of income during laid up period. This Court, because of injuries and that the injuries have not healed, is not persuaded to alter the total compensation on any ground. Hence, both the appeals are dismissed. The Registry is directed to transmit the amount in deposit to the Tribunal for disbursement. The Registry shall also transmit the Trial Court Records at the earliest. Sd/- (B.M.SHYAM PRASAD) JUDGE Sd/- (RAMACHANDRA D. HUDDAR) JUDGE VMB: para 1 to 3 RSH: 3.1 to end ct-an - List No.: 1 Sl No.: 29