- 1 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201615 OF 2022 (MV-I) BETWEEN: TAMANNA S/O MARUTEPPA, AGE: 53 YEARS, OCC: AGRICULTURE, AND NOW A/P. NIL, R/O H.NO.19-3-222, C/O SHIVAPPA S/O SANGAPPA, PRATAP NAGAR, BIDAR-585 401. …APPELLANT (BY SRI. BASAVARAJ R. MATH, ADVOCATE) AND: 1. DILIP S/O SHARNAPPA MUSTARI, AGE: MAJOR, OCC: BUSINESS, R/O H.NO.19-6-496, KSRTC COLONY, NAUBAD BIDAR-585 401, (REGISTERED OWNER OF MOTORCYCLE BEARING REGISTRATION NO.KA-53/V-6210). 2. RAMESH S/O NARAYAN MUKTI, AGE: MAJOR, OCC: BUSINESS, R/O C/O KRISHNAPPA NO.1, PATTANDUR, AGRAHAR WHITE FIELD, BENGALURU-560 066. 3. THE BRANCH MANAGER, NEW INDIA INSURANCE COMPANY LTD., 8-9-265/313, 1ST FLOOR, PADMA KUNJ COMPLEX, I.D.B.I. BANK, UDGIR ROAD, BIDAR-585 401. …RESPONDENTS Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 (BY SRI. MANVENDRA REDDY, ADV. FOR R3; V/O DTD. 08.09.2022, NOTICE TO R1 AND R2 ARE DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED 14.09.2021 PASSED BY THE PRL. SENIOR CIVIL JUDGE AND CJM AND ADDL. MACT AT BIDAR IN MVC NO.253/2018. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) Though the matter is slated for admission, by consent of both the parties, the matter is taken up for final disposal. 2. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent No.3. - 3 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 3. Being aggrieved by the judgment and award in MVC No.253/2018, the petitioner is before this Court seeking enhancement of the compensation. 4. The factual matrix of the case is that on 02.07.2017 at about 7:00 PM when the petitioner was traveling as a pillion rider along with his friend on the motorcycle bearing No.KA-20/Q-3640, another motorcycle bearing No.KA-53/V-6210 coming from opposite direction in rash and negligent manner dashed with the motorcycle of the petitioner resulting in the injuries to the petitioner. The petitioner sustained the rupture of tendon of patella and he was admitted to Guru Nanak Hospital, Bidar. He was inpatient from 02.07.2017 to 08.07.2017 and under went surgery. The petitioner contends that he was an agriculturist by avocation, earning Rs.9,000/- per month and due to the accidental injuries he has suffered the functional disability and as such he may be awarded adequate compensation. - 4 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 5. On issuance of notice, the respondent Nos.2 and 3 appeared and the insurer respondent No.3 alone has filed the written statement. The respondent No.3 opposed the petition contending that the compensation claimed by the appellant is on the higher side and denied the age, income and occupation of the petitioner. Inter-alia, it was contended that the rider of the motorcycle had violated the terms and conditions of the policy and therefore, the liability has to be fastened upon the owner of the motorcycle. 6. On the basis of the above contentions, appropriate issues were framed by the Tribunal and the petitioner was examined as PW1 and Doctor who assessed the disability was examined as PW2, Ex.P 1 to 13 were marked in evidence. No evidence was led on behalf of the respondents. 7. The arguments by learned counsel for both sides were heard and the Tribunal has awarded compensation of Rs.2,53,300/- under following heads. - 5 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 Sl.No. Heads Amount 1. Pain and sufferings Rs.20,000/- 2. Medical expenses incurred and future medical expenses, attendant, conveyance, nourishing food, and other incidental expenses Rs.62,500/- 3. Loss of income during laid up period Rs.7,000/- 4. Loss of future income on account of permanent disability Rs.1,63,800/- Total 2,53,300/- 8. Being aggrieved by the same, the petitioner is before this Court in appeal. 9. The learned counsel appearing for the appellant/petitioner would contend that the Tribunal erred in assessing the functional disability of the petitioner at 15% even though the PW2 had stated that the disability was to the extent of 25% of the whole body and that of the limb was 40%. He contends that the petitioner being an agriculturist, the physical disability has resulted in a - 6 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 functional disability of 25% as stated by PW2. It is his contention that the assessment of the disability by the Tribunal is incorrect. He also submit that the compensation under the remaining heads be re-assessed since they are on the lower side. 10. Per contra, learned counsel appearing for the respondent No.2 would submit that the Tribunal has rightly considered the disability at 15% which is slightly more than 1/3rd of the disability of the limb. He submits that the compensation awarded by the Tribunal under the remaining heads is also adequate but the marginal increase may be considered by the Court. 11. A careful perusal of the records would reveal that the petitioner was a aged 49 years at the time of the accident and he had sustained cut lacerated wound on the right forearm and the patellar tendon rupture of the left leg. The discharge summary produced at Ex.P7 would disclose that the tendon repairs were done on 05.07.2017 - 7 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 and he was in patient from 02.07.2017 to 08.07.2017. No other details are forthcoming in discharge summary. 12. The testimony of the PW2, the doctor who assessed the disability shows that due to restriction in the mobility component, there is a disability of 10%, the disability on account of the reduced muscle strength is 10%, the stability component disability is 10% and due to wasting of left thigh muscles, he assessed the disability at 10%. Ultimately, he comes to the conclusion that there is a permanent partial disability of 40% of the affected limb i.e. the left lower limb and it accounts for 25% of the disability of the whole body. The testimony of the PW2 is also in no way different than what is mentioned by him in the disability certificate. 13. The disability that would be assessed by the Medical Officers will be the physical disability of the limb. The Medical Officers cannot assess the functional disability since they are unaware of or such material will not be brought before them which would show the avocation of - 8 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 the petitioner. The resultant effect of the physical disability has to translated in the form of functional disability by the Court. Therefore, it is a job of the judicial authorities to assess the functional disability of the person juxtaposing the physical disability. 14. It is pertinent note that admittedly PW2 is not a treated doctor. The expert evidence in the form of the testimony of the Medical Officers is governed by the provisions of section 45 of the Evidence Act which lays down that opinion of experts is relevant but the Court may or may not consider the opinion of the expert. It is a settled principle of law that the Court will be the expert of experts and therefore, the testimony of the experts will only be a guiding factor, if it is shown that it is believable. It is also settled proposition of law that the testimony of the Medical Officer who has treated the petitioner would be more reliable than the testimony of a doctor who only assessed the disability. This is for the reason that a doctor who treats an injured would endeavour to see that there is - 9 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 no disability to him and giving larger disability would only reflect on his professional competence and expertise. Therefore, the weightage that has been given to a doctor who assessed the disability would be lesser than the weightage that has be attributed to the doctor who treated the injured. 15. If we closely scrutinize the evidence available on record, obviously the PW2 is not treated doctor. It is for this reason that the testimony of PW2 has to be considered with caution and it cannot be accepted as gospel truth. 16. Keeping in mind the above factors, if we examine the evidence available on record, the disability certificate issued by PW2 would show that based on the radiological finding which is available at Ex.P9 showing Supra patellar bursa effusion, the disability to the limb has been assessed. Obviously, there was no fracture of any of the bones and it was only in a rupture of the patellar tendon. No doubt, the rupture of the patellar tendon - 10 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 would result in irregular movement of the patella which acts like a safety cap over the knee joint. The resultant effect would be that the petitioner has to be careful while working so that the position of the patella at the knee joint is not displaced. 17. If we consider these aspects, this Court is of the opinion that the physical disability of the left lower limb to the petitioner assessed by the Tribunal at 15% would be proper and correct. Obviously, the Tribunal has taken the disability at slightly higher than the normal practice followed that it would be 1/3rd of the physical disability. Under these circumstances, no interference is required in respect of the functional disability assessed by the Tribunal. 18. The Tribunal has assessed the income of the petitioner at Rs.7,000/-. Obviously, the Tribunal has not considered any reason as to why the sum of Rs.7,000/- is adopted as the notional income. Though the petitioner has stated that he was earning Rs.9,000/- per month, the - 11 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 wages fixed under the Minimum Wages Act and the guidelines of KSLSA for settlement of cases before Lok- Adalat was considered by a Division Bench of this Court in the case of Mariyamma Vs Suyambulinga V , held that the guidelines issued by KSLSA prescribing the notional income for various years are in general conformity with the wages fixed under the Minimum Wages Act. In that view of the matter, the notional income has to be considered at Rs.10,250/- for the year 2017. 19. Therefore, by taking the notional income Rs.10,250/-, the compensation under the head of loss of future income is calculated as Rs.10,250/- x 12 x 13 x 15% = Rs.2,39,850/-. 20. Consequently, the compensation under the head of loss of income during the laid up period is considered for a period of three months, the same is calculated at Rs.10,250/- x 3 months = Rs.30,750/-. 21. The Tribunal has awarded sum of Rs.20,000/- under the head of pain and suffering, which is on the lower - 12 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 side. Considering the nature of injuries, the compensation under the head pain and suffering is enhanced to Rs.30,000/-. 22. The petitioner was inpatient for a period of six days and therefore, he would be entitled for a sum of Rs.10,000/- under the head of food, nourishment, conveyance, attendant charges and etc. 23. The Tribunal has not awarded any compensation under the head of loss of amenities in life and therefore, a sum of Rs.25,000/- is awarded to him under this head. 24. The compensation awarded by the Tribunal under the head of medical expenses do not require any enhancement. 25. Hence, the petitioner is entitled for additional compensation of Rs.1,34,800/- under the following heads:- - 13 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 Sl. No Heads Amount awarded by the Tribunal Amount awarded by this Court 1. Pain and sufferings Rs.20,000/- Rs.30,000/- 2. Medical expenses incurred and future medical expenses, attendant, conveyance, nourishing food, and other incidental expenses Rs.62,500/- Rs.62,500/- 3. Loss of income during laid up period Rs.7,000/- Rs.30,750/- 4. Loss of future income on account of permanent disability Rs.1,63,800/- Rs.2,39,850/- 5. Loss of amenities -- Rs.25,000/- Total Rs.3,88,100/- Less : Awarded by the Tribunal Rs.2,53,300/- Enhancement Rs.1,34,800/- ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award passed by the Tribunal is modified by awarding a sum of Rs.1,34,800/- in - 14 - NC: 2025:KHC-K:2149 MFA No. 201615 of 2022 addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization. (iii) Respondent No.2-Insurance Company is directed to deposit the entire compensation amount within a period of six weeks from the date of this order. (iv) Rest of the order passed by the Tribunal remain unaltered. Sd/- (C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 43 CT: AK