Karnataka High Court
Shivaraj vs Shreeshail And Anr on 16 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC-K:3090
MFA No. 204330 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO.204330 OF 2023 (MV-I)
BETWEEN:
SHIVARAJ
S/O MALLAPPA HODAL,
AGED ABOUT 20 YEARS,
OCC: AGRICULTURE, NOW NIL,
R/O: HODAL VILLAGE,
TQ: KAMALAPUR,
DISTRICT: KALABURAGI.
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. SHREESHAIL
S/O CHANDRASHYA,
Digitally signed
by RAMESH AGE: MAJOR,
MATHAPATI OCC: OWNER OF MOTORCYCLE
Location: HIGH NO.KA-32 /ES-5902,
COURT OF R/O: BHOPAL TEGNUR,
KARNATAKA TQ: AND DIST:KALABURAGI - 585 105.
2. M/S CHOLA M.S. GENERAL INSURANCE
COMPANY LIMITED,
THROUGH ITS DIVISIONAL MANAGER,
ASIAN PLAZA, S.V.P. CHOWK,
KALABURAGI - 585 102.
...RESPONDENTS
(BY SRI S.S.ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 204330 of 2023
HC-KAR
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY
THE JUDGMENT AND AWARD DATED 03.06.2023 PASSED BY THE
LEARNED PRINCIPAL SENIOR CIVIL JUDGE AND M.A.C.T., AT
KALABURAGI IN M.V.C.NO.830/2022 BY ENHANCING THE
COMPENSATION AMOUNT AS PRAYED FOR, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging judgment and award dated 03.06.2023
passed by Prl. Senior Civil Judge and MACT, Kalaburagi, in MVC
no.830/2022, appeal is filed.
2. Sri Sanjeev Patil, learned counsel submitted appeal
was by claimant for enhancement of compensation. It was
submitted on 16.05.2022 at about 7:00 a.m. claimant was
pillion rider on motorcycle bearing no.KA-32/ES-5902
proceeding towards Bhopal-Tegnoor village. Near Hanoor
bridge, rider rode it in rash and negligent manner over speed
breaker causing claimant to loose balance and fall down. Due
to same, he sustained grievous injuries and shifted to P.G.
Shah Hospital, Kalaburagi, where he was impatient until
25.05.2022. Despite spending more than Rs.1,00,000/- he did
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not recover fully and sustained permanent physical
disability/loss of earning capacity. Hence he filed claim petition
under Section 166 of MV Act, against owner and insurer of
motor cycle.
3. After service, respondent no.1 - owner did not
appear. He was placed ex-parte. Respondent no.2-insurer filed
objections denying claim petition averments in toto, disputing
age, occupation and income of claimant as well as loss of
earning capacity.
4. Based on pleadings, tribunal framed issues and
recorded evidence, wherein claimant examined himself and
Dr.Raju Kulkarni as PWs.1 and 2 and got marked Exs.P.1 to
P.15. Respondents did not lead any evidence.
5. On consideration, Tribunal held accident had
occurred due to rash and negligent riding of motorcycle,
claimant had sustained injuries therein resulting in permanent
physical disability and loss of earning capacity and therefore
entitled for compensation. It assessed compensation as follows
and held insurer liable to pay same:
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Sl.No. Heads Amount
1 Towards medical expenses Rs.92,590/-
2 Towards pain and suffering Rs.10,000/-
3 Towards loss of income during period Rs.23,000/-
of treatment, diet, food, nourishment
& attendant charges
4 Towards loss of future earning capacity Rs.5,09,760/-
5 Towards loss of enjoyment of life and Rs.10,000/-
amenities
Total Rs.6,45,350/-
Rounded off Rs.6,45,400/-
Rs.
6. Not satisfied with assessment, claimant was in
appeal.
7. It was firstly submitted, though claimant had
sustained fracture of left femur which was major fracture.
Tribunal had only awarded only Rs.10,000/- towards pain and
suffering. Further, it awarded grossly inadequate amount of
Rs.23,000/- towards loss of income, diet, attendance and other
incidental charges. It had also granted only Rs.10,000/-
towards loss of amenities while no amount was awarded
towards future medical expenses especially, for removal of
implants. It was further contended claimant had sustained
fracture of left femur which had resulted in severe restrictions
of movement of left lower limb assessed by PW.2 to have
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caused disability of 50%. However, Tribunal had considered
only 16% towards loss of earning capacity. Therefore, award
requires enhancement.
8. Sri S.S.Aspalli, learned counsel for respondent
no.2-insurer opposed appeal. It was submitted on consideration
of entire material on record, Tribunal had determined just
compensation under various heads, which did not call for
enhancement. It was submitted, PW.2 had assessed permanent
physical disability to left lower limb, that too, without
Radiologist report about nature of fracture and union. It was
submitted disability to whole body cannot be equal to disability
to limb, therefore there was no merit in appeal and prayed for
its dismissal.
9. Heard learned counsel, perused impugned
judgment and award.
10. From above, while insurer had accepted award and
as only claimant is in appeal for enhancement of compensation,
point that would arise for consideration is:
"Whether claimant is entitled for enhancement of
compensation as prayed for?
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11. From above, occurrence of accident due to rash and
negligent riding of insured motorcycle, claimant sustained
permanent physical disability and loss of earning capacity as
well as insurer being liable to pay compensation are not in
dispute.
12. Claimant is seeking for enhancement of
compensation. Claimant sustained fracture of left femur, which
is major fracture. Therefore, award of only Rs.10,000/- towards
pain and suffering, would be grossly inadequate. It would be
appropriate to award Rs.35,000/- instead. Tribunal considered
Rs.14,750/- as monthly income, but, awarded only Rs.23,000/-
towards loss of income during lay off, attendance, diet and
other incidental expenses. Normally, fractures take three
months to heal. Taking said period as lay off, claimant would be
entitled for Rs.44,250/-. Considering inpatient treatment period
of 10 days, it would be appropriate to award Rs.10,000/-
towards diet, attendance etc.
13. PW.2-Orthopedic surgeon issued Ex.P-8 - disability
certificate assessing permanent disability of 50%. Though he
did not assess loss of earning capacity and considered whole
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body disability at 50% itself, in Ex.P8 as well as in his
deposition, he stated about restriction of flexion of left knee to
only 800 i.e. 50% apart from significant wasting of quadriceps
and hamstring muscles, due to which claimant could not squat
and lift more than 8 kg weight. He also noted limping on left
side. There is also reference to Radiologist report about mal-
union of fracture with implants in situ. Thus, assessment is
based not only on clinical examination but also Radiologist
report. Contention of counsel for insurer would not sustain.
Moreover, nothing is elicited to discredit assessment by PW.2,
in cross-examination.
14. It is seen Tribunal applied 1/3rd limb disability as
whole body disability formula, which would not be appropriate.
Considering, age of claimant at 19 years, occupation as
agricultural coolie, which involves sitting and squatting,
assessment of loss of earning capacity at 16% would be grossly
inadequate. It would be appropriate to consider it at 30%.
Thus, compensation towards future loss of income would be:
Rs.14,750 x 30% x 12 x 18 = Rs.9,55,800/-
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15. When claimant has sustained disability at young
age, award of Rs.10,000/- towards loss of amenities would be
inappropriate. Same is enhanced to Rs.30,000/-.
16. PW.2 has spoken about implants in situ. Treatment
records would corroborate same. But no compensation is
awarded for removal. Taking note of same, Rs.30,000/- is
awarded towards future medical expenses. Thus, total
compensation would be as follows:
Sl.No. Heads Amount
1 Towards medical expenses Rs.92,590/-
2 Towards pain and suffering Rs.35,000/-
3 Towards loss of income during period Rs.44,250/-
of treatment
4 Towards diet, food, nourishment & Rs.10,000/-
attendant charges
5 Towards loss of future earning capacity Rs.9,55,800/-
6 Towards loss of enjoyment of life and Rs.30,000/-
amenities
7 Future medical expenses Rs.30,000/-
Total Rs.11,97,640/-
17. In view of above, point for consideration is
answered partly in affirmative. Consequently, following:
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ORDER
Appeal is allowed in part, impugned award is modified,
claimant is held entitled to enhanced compensation of
Rs.11,97,640/- as against Rs.6,45,400/- awarded by Tribunal,
with all other conditions/directions remaining same.
Sd/-
(RAVI V HOSMANI)
JUDGE
msr
