- 1 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR MISCELLANEOUS FIRST APPEAL No. 4436 OF 2025 (MV-I) BETWEEN: 1. VENKATESH S/O NARASIMHA AGED ABOUT 38 YEARS R/AT KOTHATHI VILLAGE KOTHATHI HOBLI MANDYA TALUK AND DISTRICT – 571 402. …APPELLANT (BY SRI SREENIVASAN M Y, ADVOCATE) AND: 1. THE DIVISIONAL CONTROLLER DIVISIONAL OFFICE, URBAN DIVISION NEAR BANNI MANTAPA MYSURU – 570 015. …RESPONDENT (BY SRI JAGADEESH G S, ADVOCATE) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED:05.12.2024 PASSED IN MVC No.19/2023 ON THE FILE OF THE COURT OF ADDITIONAL SMALL CAUSES AND SENIOR CIVIL JUDGE, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT This appeal is filed by the claimant seeking enhancement of compensation awarded in the judgment and award dated 05.12.2024 passed in MVC No.19/2026 by Additional small causes judge and MACT, Mysuru. 2. Even though the appeal is listed today for admission, it is taken up for disposal with the consent of learned counsels of both parties. 3. The appellant –claimant has made claim petition praying to award compensation for injuries sustained by him in a road traffic accident which took place on 20.11.2022 contending that accident occurred due to rash and negligent driving of driving of driver of bus bearing registration No.KA-40/F-1195. The Tribunal has recorded evidence, appreciating evidence on record - 3 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 assessed the compensation and awarded compensation under different heads as under: Sl.No. Heads Amount 1 Loss of earning/future earning on account of disability Rs.8,37,000/- 2 Loss of Earnings during treatment (laid up period) Rs.46,500/- 3 Damages for pain, suffering and Trauma as a consequence of the injuries Rs.1,50,000/- 4 Loss of Amenities Rs.1,00,000/- 5 Transportation, Nourishment, Attendant and Miscellaneous Expenditure Rs.50,000/- 6 Expenses relating to Treatment Hospitalization and Medication. Rs.12,67,000/- 7 Future relating to Treatment Hospitalization and Medication. Rs.50,000/- Total Rs.25,00,500/- 4. The Tribunal has also awarded interest at the rate 6% per annum from the date of petition till realization and directed to the respondent –corporation to pay the award amount with interest. The claimant seeking enhancement of compensation has filed the present appeal. 5. Heard learned counsel for the appellant and learned counsel for the respondent –corporation. - 4 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 6. Learned counsel for the claimant would contend that the claimant was working as painter and mason. Due to injuries sustained by him not able to carry out painting and mason work effectively and it has caused disability in his avocation. Three doctors have been examined as P.W.2 to P.W.4. P.W.2 -the orthopedic surgeon has stated 39% disability to the right lower limb and 21% to the right upper limb. P.W.3 - Neurosurgeon has stated disability of 64.13% to the whole body and P.W.4 – Consultant Plastic Surgeon has assessed the disability at 33%. Considering the evidence of P.W.2 to 4 and injuries sustained by the claimant, disability taken by the Tribunal at 30% is on lower side. 7. Due to disability, the claimant is not able to do his work properly and therefore, future prospects are to be taken into consideration for award of loss future income. With these, he prays to allow the appeal and enhancement of compensation. - 5 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 8. Learned counsel for the respondent – corporation contend that the Tribunal has considered all the evidence of P.W.2 to 4 and the injuries sustained by the claimant and rightly taken disability at 30%. The claimant himself has appeared before the Tribunal, he has faced the cross-examination and that has been taken into consideration by the Tribunal while assessing the disability of the claimant. With these, he prays to dismiss the appeal. 8. Having head learned counsels, this Court has perused impugned judgment, award and trial court records. 9. Wound certificate –Ex.P6 indicate that the injuries sustained by the claimant are as under: (a) Poly Trauma with traumatic brain injury, (b) Bifrontal right more than left side depress fracture right frontal extra dural heamorrhage with fracture of the fronto-orbito hypnoide complex, (c ) Comminuted fracture of right femur, (d) Type III open fracture right both bones, - 6 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 (e) Fracture both bones right forearm distal 1/3rd, (f) Multiple facial bone fracture. The said injuries are stated to be grievous in nature. The Tribunal has considered the evidence of P.W.2 to 4 while assessing the disability. In para Nos.16 to 21 of impugned judgment, the Tribunal has considered the disability as under: “16. Disability suffered by the petitioner: PW- 2 had assessed the permanent physical disability of the petitioner at 39% for right lower limb and 21% for right upper limb. PW-3 had assessed the permanent neurological, ophthalmological and psychological disability of the petitioner at 64.13% and PW4 had assessed the disability of the petitioner 33% for facial fractures. No independent disability certificates have been issued. The learned counsel for the respondent has argued that the disability assessed by the said doctor is on the higher side. 17. As held by the Hon'ble Apex court in Rajkumar Vs. Ajay Kumar & Anor. reported in (2011) 1 SCC 343, “the doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent - 7 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 disability. The loss of earning capacity is something that will have to be assessed by the tribunal with reference to the evidence in entirety”. Thus the duty to assess the functional disability is casted upon the tribunal. 18. In this backdrop, the functional disability is to be assessed by the tribunal. The doctor/PW2 has deposed that on examination he was found that the petitioner suffering from pain at fracture site of femur in hip, knee, ankle, wrist and elbow, difficulty in sitting cross leg, squatting, wasting of thigh and calf muscles, limping, shortening of 2cms, wasting of forearm muscles, difficulty in lifting weights in his right upper limb and thick puckered scar in right forearm with discharging sinus and has assessed the disability of the petitioner at 39% for right lower limb and 21% for right upper limb. The disability assessed by PW2 is in relation to particular limbs only and the same is physical impairment of the petitioner. Thus, it cannot be construed to be whole body disability or functional disability. 19. The doctor/PW3 deposed that on examination he was found that the petitioner suffering from loss of memories and seizures due to traumatic brain injury and he has assessed 64.13% of whole body disability based on Psychological assessment report/Ex.P23. Ex.P23 goes to show that the psychologist has made an impression with - 8 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 regarding socio-adaptive functioning. Wherein he has assessed moderate disability for self care, interpersonal activities and communicating and understanding and profound disability for work. Overall he has assessed moderate disability at 40- 70% and Severe deficits in socio-adaptive functioning at 90%. 20. Further, the psychological assessment report is not indicating as to whether the psychological impairment of the petitioner is permanent, long term or for short term. Further no evidence forth coming as to whether the PW-3 aware of the tests conducted by psychologist and at that relevant point of time he was there or not. Furthermore, the petitioner himself appeared before the tribunal to tender himself to cross examination to the other side, and has answers all the questions put to him relevantly. Thus the petitioner has any complaint of memory loss can not be accepted. Further, PW3 has not mentioned the causes of seizures. There is no medical records of the petitioner available to show the causes of seizures, as to whether it comes from hereditary or from trauma by accident. 21. The doctor/PW4 deposed that the petitioner was complain of pain at operated site. On examination he was found that the petitioner suffering from scar present at right cheek, partial - 9 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 loss of sensation at operated sight, swollen fact with difficulty in right eyebrow movements and scar in neck region and he has assessed permanent physical disability at 33%. It is to be noted that, the disability assessed by the PW4 is for the facial injury. The petitioner as he deposed that he was painter and mason, the disability assessed by PW4 would never come in the way of occupation of the petitioner which would resulted any loss in his earning capacity. Thus, the disability assessed by PW4 in respect of facial injury cannot be construed as the functional disability. At this juncture, it is necessary to place reliance on the judgment of the Hon’ble High Court of Karnataka (Dharawad Bench) in MFA No.21374/2010 dated 20.07.2021 in Divisional Manager, United India Insurance Co. Ltd., V/s Shahanoor Peersab Basaragi it was held that, “a fracture of mandible had taken place in the employment related accident, not affect the function of his upper and lower limbs, the functional disability caused and the consequential loss in the earning capacity will be regarded as zero.” Thus, the disability assessed by PW4 cannot be construed as the functional disability.” 10. The claimant's occupation is painting and mason work. Considering the evidence of P.W.2 to P.W.4, - 10 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 the disability is to be taken at 40% as against 30% taken by the Tribunal. As disability is assessed at 40%, the claimant is entitled to future prospects. Since the age of the claimant is 36 years, future prospects are to be taken at 40%. In view of the above, the loss of future income is calculated as under: Rs.15,500/- +40%(Rs.6200/-) = Rs.21,700/- x 12x 15x 40%= Rs.15,62,400/- 11. The claimant is entitled to loss of future income in a sum of Rs.15,62,400/- as against Rs.8,37,000/- as awarded by the Tribunal. Consequently, the claimant is entitled to enhanced compensation of Rs.7,25,400/- with interest at the rate of 6% per annum from the date of petition till realization. 12. In view of the above, the following ORDER i) The appeal is allowed in part. ii) The appellant -claimant is entitled to enhanced compensation of Rs.7,25,400/- with interest at - 11 - HC-KAR NC: 2026:KHC:31334 MFA No. 4436 of 2025 the rate of 6% per annum from the date of petition till realisation. iii) Respondent -insurer shall deposit the enhanced compensation with interest before the Tribunal within a period of 06 weeks from this day failing which, it is liable to pay interest at the rate of 9% per annum from this day till payment of compensation. iv) The appellant -claimant is entitled to release of entire enhanced compensation amount with interest. v) Send back trial Court records with certified copy of this judgment forthwith. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DSP List No.: 1 Sl No.: 6