- 1 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 19TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCL. FIRST APPEAL NO.200994 OF 2022 (MV-I) BETWEEN: MAHESH S/O KAREPPA KANEKAR, AGE: 23 YEARS, OCC: LABOUR, NOW NIL, R/O NEAR PILLAMMA TEMPLE, 10TH CROSS, TARFILE RAILWAY STATION AREA, KALABURAGI-585102. …APPELLANT (BY SRI. BABU H. METAGUDDA, ADVOCATE) AND: 1. THIRUMALA CABS THROUGH ITS PROPRIETOR, M SUNIL KUMAR, AGE: MAJOR, OCC: BUSINESS, R/O D. NO.2-06-003, RAVINDRA NAGAR, YANAM PUDUCHERRY-533-464. 2. THE MANAGER NATIONAL INSURANCE CO. LTD. THROUGH ITS DIVISIONAL MANAGER BILGUNDI COMPLEX, NEAR MINI VIDHAN SOUDHA, MAIN ROAD, KALABURAGI-585102. …RESPONDENTS (V/O DATED 15.06.2022 NOTICE TO R-1 IS DISPENSED WITH BY SRI. RAHUL R. ASTURE, ADVOCATE FOR R2) Digitally signed by NIJAMUDDIN JAMKHANDI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS IN MVC NO.572/2019 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, KALABURAGI. B) ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 13.08.2021 PASSED IN MVC NO.572/2019 BY THE PRL. SENIOR CIVIL JUDGE AND CJM, AT-KALABURAGI AND ENHANCING THE COMPENSATION FROM RS.2,83,000/- WITH 6 PERCENT INTEREST TO RS.33,64,000/- WITH 12 PERCENT INTEREST THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE K NATARAJAN) This appeal is filed by the claimant seeking enhancement of the compensation awarded by the Tribunal in MVC No.572/2019 dated 13.08.2021. 2. The appellant filed a claim petition under Section 166 of Motor Vehicles Act claiming compensation of Rs.33,64,000/- for the injuries sustained in the road traffic accident dated 08.11.2018. On 08.11.2018 at 5:30a.m. appellant along with is relatives was going to Mumbai in a bus bearing No.PY-04/A-2975. When the bus - 3 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 was preceding Amrutanjan bridge on Mumbai-Pune new express highway, the driver of the bus drove the bus in high speed and in rash and negligent manner. He lost the control over the bus and dashed it to the roadside divider, due to which the appellant sustained grievous injuries i.e., fracture of L1 compression with wedge and other parts of the body. He was shifted to the Lokmanya hospital, Nigdi Pune and thereafter, he was shifted to Basaveshwara hospital, Kalaburgi and he claims to have spend more than Rs.4,00,000/- towards the treatment. The petitioner claims that he used to earn Rs.15,000/- per month and due to the injury and disablement, he is unable to do the work. Hence, he filed the claim petition claiming compensation. 3. Though, respondent No.1 was served, neither he appeared nor filed any statement of objections. Respondent No.2-Insurance Company appeared and filed statements disputing the negligence of the driver, - 4 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 occupation, income and age of the appellant. Hence, prayed for dismissing the appeal. 4. Based upon the same, the Tribunal framed the following issues: “1.Whether the petitioner proves that, on 08.11.2018 at or about 5:30 a.m., he along with his relatives were going to Mumbai to attend the marriage function in a bus bearing Reg. No. PY- 04/A-2975 when the said bus was near Amruthanjan Bridge on Mumbai-Pune New Express High way drove it in high speed and in rash and negligent manner and he lost control over the bus and dashed to the road divider due to which the petitioner sustained grievous injuries? 2.Whether the petitioner further proves that, he is entitled for the compensation? If so, to what quantum and from whom? 3.What order or award?” 5. The petitioner himself examined as PW-1 and he got marked 13 documents as Ex.P-1 to Ex.P-13. He examined Dr. Rajendra Kothari as PW-2. The respondent got marked the Insurance policy as Ex.R-1. After considering the evidence, the Tribunal awarded compensation under various heads, totaling Rs.2,83,000/- with 6% interest and fixed the liability on the Insurance - 5 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 Company. Being aggrieved by the quantum of compensation, the claimant is before this Court. 6. The learned counsel for the appellant seriously contended that the Tribunal erred in calculating the disability. The Tribunal assessed disability at 8% despite the evidence of PW-2 and the disability certificate issued by the doctor, which suggested 49% disability to the whole body and it is not to any particular limb, so as to reduce the disability to 8% to the whole body. The appellant suffered fracture to L1 vertebra, lack of control over urination, gall bladder injury and nervous weakness. That apart, he cant lift the weight and do the coolie work. Therefore, the Tribunal failed to consider these factors and arbitrarily reduced the disability percentage to 8%. The learned counsel further contended that the compensation awarded for pain and suffering, diet, attendant charges, loss of amenities and other heads are also very meager. Hence, he prayed for allowing this appeal. - 6 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 7. Per contra, the learned counsel appearing for the respondent-Insurance Company supported the award passed by the Tribunal and contended that the evidence of the doctor, who assessed the disability is not a treated doctor. Some injuries were not mentioned in the wound certificate and appeared only in the disability certificate. Therefore, it was argued that only 1/3rd of the suggested disability should be considered for whole-body assessment instead of 49% as suggested by the doctor. Hence, prayed for dismissing the appeal. 8. Having heard the arguments of learned counsel for the appellant and learned counsel for the respondent and after perusing the records, the point that arises for our consideration is as under: “Whether the compensation awarded by the Tribunal is meager and needs for enhancement? If yes, to what extent?.” 9. Upon considering the records, the fact that the accident dated 08.11.2018 occurred due to the rash and - 7 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 negligent driving of the driver of the bus belonging to the first respondent is not in dispute. The injured claimant was a passenger in the said bus and was initially admitted to Lokmanya Hospital, Pune, and later shifted to Basaveshwara Hospital, Kalaburgi. Ex.P-4, the wound certificate, Ex.P-7, the discharge card and Ex.P-8, the disability certificate, confirm the injuries sustained by the appellant. As per the evidence of PW-2 doctor, R1 scan dorso-lumbar spine done on 08.11.2018 revealed anterior wedge fracture of L1 vertebra causing narrowing of canal and compression on cord cons, narrow edema, cord contusion and hematoma in dorso lumbar canal, both muscles and soft tissues edema. He has also produced X- Ray of DL spine which shows fracture of T11, T12 and L1 vertebra with internal devices in situate T11 to L2 vertebra. He opined that the patient had grievous traumatic dorso-lumber vertebral fracture leading to cord injury as found clinically and radiologically and underwent stabilization surgery and at present he has Paraparesis- partial loss of motor power in both lower limbs that - 8 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 accounts for disability of 30%. Mild urinary and fecal incontinence- no control over passing of urine and fecal matter that accounts for disability of 25%. The doctor assessed the disability at 49% to the whole body, but the Tribunal reduced it to 8% on the ground that the fracture of gall bladder was not mentioned in the wound certificate. But, there are no other reasons assigned by the Tribunal. That apart a perusal of the finding of the Tribunal would show that there is no scientific reason assigned, except a few words that some injury not mentioned the wound certificate. Therefore, reducing the disability below 1/3rd is not correct. However, the fact of the case is that the appellant is unable to control over the urinal both lower limbs were disabled due to the fracture of lumbar region apart from T-11 and 12 fractures, which were compressed. Such being the case, we are of the opinion that though the doctor has opined 49% disability to the whole body, we have reassessed the disability and we propose to assess 25% disability to whole body instead of 49% suggested by the doctor and 8% taken by the Tribunal. - 9 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 10. As regard the income of the claimant, there is no income proof produced by the appellant. Therefore, we propose to consider his income as Rs.11,750/-, which was already considered by the Tribunal. If, Rs.11,750/- is considered as income and 18 is taken as multiplier, compensation under the head of loss of future earnings works out to Rs.6,34,500/- (Rs.11,750 x 12 x 18 x 25%). As regards the Pain and suffering, the Tribunal awarded Rs.25,000/- and having regard to the injuries sustained by the appellant, we propose to increase it to Rs.40,000/-. The medical expense of Rs.7,840/- awarded by the Tribunal is retained. Under the head of diet and attendant charges, the Tribunal has awarded a sum of Rs.25,000/-, where the appellant was admitted in the hospital for 16 days, which is also retained. As regards the loss of income during laid up period, the Tribunal awarded a sum of Rs.11,750/-, which is enhanced to Rs.35,250/- (11,750 x 3). Towards loss of amenities, the age of the petitioner is 20 years he has suffered a lumbar injury and unable to sit long time and lift any weight and therefore, a sum of - 10 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 Rs.40,000/- is awarded as against Rs.10,000/-. The compensation reassessed under various heads is as under: Description Amount Pain and suffering Rs.40,000/- Medical expenses Rs.7,840/- Diet and attendant charges Rs.25,000/- Loss of income during laid up period Rs.35,250/- Loss of future earning Rs.6,34,500/- Loss of amenities Rs.40,000/- Total Rs.7,82,590/- Award of the Tribunal Rs.2,83,000/- Enhanced Compensation Rs.4,99,590/- ORDER i. The appeal is allowed in part. ii. The appellant is entitled for enhanced compensation of Rs.4,99,590/- along with interest at the rate of 6% per annum from the date of filing of petition, till realization of entire compensation. The Insurance - 11 - NC: 2025:KHC-K:1729-DB MFA No. 200994 of 2022 Company is directed to deposit the enhanced compensation within eight weeks from the date of receipt of certified copy of this order. iii. The order of the Tribunal regarding apportionment of release and deposit is unaltered. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE NJ List No.: 1 Sl No.: 26 CT:SI