Karnataka High Court
Gudusab S/O Fakirsab Chirlakoppa vs Basavaraj S/O Bheemappa Mudaraddi And ... on 31 January, 2025
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NC: 2025:KHC-K:701
MFA No. 200098 of 2021
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCL. FIRST APPEAL NO.200098 OF 2021 (MV-I)
BETWEEN:
GUDUSAB S/O FAKIRSAB CHIRLAKOPPA,
AGE: 53 YEARS, OCC: HOTEL BUSINESS,
R/O YAVAGALL, TQ. RON,
DIST. GADAG-582 101.
...APPELLANT
(BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)
AND:
1. BASAVARAJ S/O BHEEMAPPA MUDARADDI,
Digitally
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
signed by
LUCYGRACE
LUCYGRACE Date:
AT POST: JANATA PLOT, GAWARAWAD,
2025.02.04
17:37:30 -
0800
POST: KADADI, TQ. & DIST. GADAG-582 102.
2. THE BRANCH MANAGER,
THE NATIONAL INSURANCE COMPANY LTD.,
1ST FLOOR, HERALAGI BUILDING,
BEHIND SIDDESHWAR TEMPLE,
VIJAYAPURA-586 101.
...RESPONDENTS
(BY SRI DEEPAK V. BARAD, ADV., FOR R2;
V/O DTD. 04.02.2021, NOTICE TO R1 IS DISPENSED WITH)
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NC: 2025:KHC-K:701
MFA No. 200098 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING
TO MODIFY THE JUDGMENT AND AWARD DATED 01.02.2020
PASSED IN MVC NO.215/2017 ON THE FILE OF THE COURT
OF THE II ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT
NO.VII, VIJAYAPURA AT VIJAYAPURA AND ALLOW THIS
APPEAL TO GRANT THE COMPENSATION AMOUNT BY
RS.10,66,400/- ONLY AS CLAIMED BY THE APPELLANT
BEFORE THIS HON'BLE COURT AND ORDER FOR COSTS OF
THIS APPEAL.
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)
Heard the learned counsel appearing for the appellant
and the learned counsel appearing for respondent No.2.
2. Though the matter is listed for admission, with
the consent of learned counsel appearing for both the
parties, it is taken up for final disposal.
3. This appeal is directed against the judgment and
award dated 01.02.2020 in MVC No.215/2017 passed by
learned II Additional Senior Civil Judge and MACT-VII,
Vijayapura (hereinafter referred to as 'the Tribunal' for
short).
NC: 2025:KHC-K:701
4. The undisputed facts are that, on 28.09.2016 at
about 8.30 p.m., the petitioner suffered a road traffic
accident involving the motorcycle bearing No.KA-26/
W-8014 and he has suffered fracture of tibia and fibula,
fracture of nasal bone and fracture of frontal bones and other
minor injuries. He was admitted to General Hospital,
Naragund and then for higher facilities at Hubli and Dharwad
and thereafter to Belagavi. Hence, he filed a claim petition
before the Tribunal.
5. The Insurance Company has resisted the petition
on various grounds, but it was unable to substantiate the
same before the Tribunal.
6. After hearing both the sides, the Tribunal held
that the accident being on account of negligent driving by
the rider of the motorcycle, the Insurance Company is liable
to pay the compensation to the claimant and ultimately
awarded compensation under different heads as below:
NC: 2025:KHC-K:701
1 Injury, Pain and Sufferings Rs.30,000/-
2 Medical Expenses Rs.2,20,000/-
3 Loss of Income due to Rs.93,600/-
Permanent Physical
Disability
4 Food and Nourishment Rs.30,000/-
5 Attendant Charges Rs.20,000/-
6 Conveyance Charges Rs.20,000/-
7 Loss of Amenities and Future Rs.20,000/-
Unhappiness
TOTAL Rs.4,33,600/-
7. Learned counsel appearing for the appellant-
petitioner would submit that the Tribunal failed to assess the
functional disability of the petitioner in a proper perspective.
Though, the PW2-Doctor, who had assessed the disability
had spoken to the effect that the fracture of the tibia and
fibula had suffered a non-union despite an internal fixator
being applied and there was a disability to the extent of 40
to 45%. The assessment done by PW2 was not properly
considered by the Tribunal and therefore, there is a need for
indulgence by this Court in enhancing the disability and
thereby the compensation. Inter alia, he points out that the
compensation awarded under other heads is also on the
lower side.
NC: 2025:KHC-K:701
8. Per contra, learned counsel appearing for
respondent No.2 would submit that the assessment of the
disability by the Tribunal is proper and correct and petitioner
being a businessman involved in hotel business, cannot have
a higher functional disability and therefore, there is no need
for enhancement of the compensation.
9. A careful perusal of the records would reveal that
the petitioner was aged about 50 years, involved in a hotel
business and he suffered fracture of tibia and fibula, which
has resulted in non-union. On account of such non-union
and the external fixator was applied, which was observed by
the PW2, he has come to the conclusion that there is
disability of 40 to 45%. It is worth to note the fracture of
tibia and fibula and its non-union results in a substantial
limping by the petitioner and it would definitely affect the
functionality of the petitioner. Therefore, it is evident that
the Tribunal had prima-facie erred in assessing the functional
disability at 10%. In the considered opinion of this Court,
the functional disability would be 18%.
NC: 2025:KHC-K:701
10. The age of the petitioner is not in dispute. The
petitioner has not produced any documentary proof in
respect of his income. Therefore, notional income has to be
adopted for the purpose of calculation of the compensation.
11. The guidelines issued by the Karnataka State
Legal Services Authority (KSLSA) for settlement of the
disputes before the Lok Adalat prescribe the notional income
of Rs.8,750/- for the year 2016. In umpteen number of
decisions, this Court has held that the guidelines issued by
KSLSA are acceptable on the ground that they are in general
conformity with the minimum wages fixed under the
Minimum Wages Act. Therefore, the notional income of the
petitioner is accepted as Rs.8,750/- per month. Therefore,
the loss of future income is calculated as Rs.8,750/- x 12 x
13 x 18% = Rs.2,45,700/-.
12. Consequently, the petitioner is also entitled for
compensation under the head loss of income during laid up
period for a period of three months i.e., Rs.8,750/- x 3 =
Rs.26,250/-.
NC: 2025:KHC-K:701
13. The compensation awarded by the Tribunal under
the head pain and suffering is also on the lower side and
therefore, the same is enhanced to Rs.40,000/-. The
Tribunal has awarded a sum of Rs.20,000/- under the head
of loss of amenities in life. The non-union of the tibia and
fibula has resulted in a gait walking and therefore, the loss of
amenities is enhanced to Rs.40,000/-. The compensation
awarded by the Tribunal under other heads do not require
any interference. In the result, the petitioner is entitled for
the compensation as below:
Sl. Heads Award by the Award by this
No. Tribunal Court
1 Injury, Pain and Rs.30,000/- Rs.40,000/-
Sufferings
2 Medical Expenses Rs.2,20,000/ Rs.2,20,000/-
-
3 Loss of Income due Rs.93,600/- Rs.2,45,700/-
to Permanent
Physical Disability
4 Food and Rs.30,000/- Rs.30,000/-
Nourishment
5 Attendant Charges Rs.20,000/- Rs.20,000/-
6 Conveyance Rs.20,000/- Rs.20,000/-
Charges
7 Loss of Amenities Rs.20,000/- Rs.40,000/-
and Future
Unhappiness
NC: 2025:KHC-K:701
8 Loss of income -- Rs.26,250/-
during laid up
period
TOTAL Rs.4,33,600/ Rs.6,41,950/-
-
Less award by the Tribunal Rs.4,33,600/-
Enhancement Rs.2,08,350/-
14. For the aforesaid reasons, the appeal deserved to
be allowed in part. Hence, the following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award
passed by the Tribunal is hereby
modified.
(iii) The appellant is entitled for a sum of
Rs.2,08,350/- with interest at 6% per
annum from the date of petition till
realization, in addition to what has been
awarded by the Tribunal.
(iv) The respondent No.2 - Insurance
Company is directed to deposit the
enhanced compensation with interest
NC: 2025:KHC-K:701
within a period of 08 weeks from the
date of receipt of a copy of this
judgment.
(v) The amount in deposit is ordered to be
transmitted to the Tribunal, forthwith.
Sd/-
(C M JOSHI)
JUDGE
LG,SBS
CT: AK
