Karnataka High Court
Shankar vs Zaffiulla Khan And Anr on 26 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC-K:3407
MFA No. 201734 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
MISCL. FIRST APPEAL NO. 201734 OF 2019 (MV-I)
BETWEEN:
SHANKAR
S/O VITHAL ABBENDE,
AGE: 32 YEARS,
OCC: LABOUR,
R/O: IMAMBAD HALLI,
TQ. & DIST: BIDAR.
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. ZAFFIULLA KHAN
S/O RAHIMULLA KHAN,
Digitally signed C/O: MADHUKARRAO KADAND,
by RAMESH H.NO.1167, BALIRAMPUR,
MATHAPATI TQ & DIST: NANDED,
Location: HIGH (MAHARASHTRA STATE - 431 601)
COURT OF
KARNATAKA
2. BRANCH MANAGER,
NATIONAL INSURANCE COMPANY LIMITED,
VEERBHADRESHWAR CHAMBERS,
DOOR NO.8-10-135/1 & 1A,
OPP: NEHARU STADIUM, BIDAR - 585 401.
...RESPONDENTS
(BY SRI S.S.ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO EXERCISE ITS APPELLATE
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MFA No. 201734 of 2019
HC-KAR
JURISDICTION, CALL FOR RECORDS AND MODIFY THE JUDGMENT
AND AWARD DATED 01.04.2019 PASSED BY THE LEARNED
ADDITIONAL SENIOR CIVIL JUDGE AND MACT AT BIDAR IN
M.V.C.NO.673/2017, BY ENHANCING THE COMPENSATION AMOUNT
FROM RS.4,73,258/- TO RS.15,00,000/-, AND ALSO ENHANCE THE
INTEREST PAYABLE BY THE RESPONDENTS ON THE COMPENSATION
AMOUNT, AND FURTHER PLEASED TO ALLOW THIS APPEAL FILED BY
THE APPELLANT HEREIN IN THE ENDS OF JUSTICE.
THIS MFA, 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 01.04.2019
passed by Additional Senior Civil Judge and M.A.C.T., Bidar, in
MVC no.673/2017, this appeal is filed.
2. Sri Sanjeev Patil, learned counsel submitted appeal
was by claimant for enhancement of compensation. It was
submitted, at about 20:15 hours on 05.05.2015, claimant was
traveling in auto no.KA-38/2615 from Bidar to Imambad Halli,
when driver of car no.MH-34/K-2795 drove it in rash and
negligent manner and dashed against auto, causing accident.
Due to same, he sustained grievous injuries and was shifted to
Government Hospital and thereafter shifted to NIMS Hospital,
Hyderabad. Despite taking treatment, he did not recover fully
and sustained permanent physical disability/loss of earning
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capacity. Hence, he filed claim petition under Section 166 of MV
Act.
3. Respondent no.1-owner did not appear and 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. It also alleged contravention of terms and conditions
of policy.
4. Based on pleadings, tribunal framed issues and
recorded evidence, wherein claimant examined himself and
Dr.Mallikarjun Yemme as PWs.1 and 2 and got marked Exs.P.1
to P.13. Respondents did not lead any evidence.
5. On consideration, Tribunal held that accident
occurred due to rash and negligent driving of auto, claimant
had sustained permanent physical disability and loss of earning
capacity and entitled for compensation from insurer as follows:
Compensation
Heads
Amount
Medical expenses 62,258/-
Loss of earning during period of 15,000/-
treatment
Loss of future earning on account of 3,36,000/-
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permanent disability
Future medical expenses 20,000/-
Pain and suffering 20,000/-
Loss of amenities 20,000/-
Total 4,73,258/-
6. Not satisfied, claimant was in appeal.
7. It was firstly submitted, claimant sustained fracture
of right leg leading to amputation below knee, tribunal awarded
only Rs.20,000/- towards pain and suffering. Further, it
awarded grossly inadequate amount of Rs.15,000/- towards
loss of income during laid up period. Even award of Rs.20,000/-
towards loss of amenities was inadequate. It was further
contended claimant had sustained amputation of right leg
below knee. PW.2 assessed it to have caused disability of 97%.
However, Tribunal had considered only 35% 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 and prayed for dismissal of appeal.
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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,
only point that would arise for consideration is:
"Whether claimant is entitled for enhancement
of compensation as prayed for?
11. From above, occurrence of accident due to rash and
negligent driving of auto by its driver, claimant sustaining
permanent physical disability and loss of earning capacity as
well as insurer being liable to pay compensation are not in
dispute.
12. Though, claimant stated that he was working as
labour and earning Rs.12,000/- p.m., same was not
substantiated. In absence, tribunal assessed it notionally.
Since, notional income for year 2015 is Rs.8,000/-, same has to
be considered.
13. Claimant sustained amputation of right leg below
knee. Therefore, award of only Rs.20,000/- towards pain and
suffering, would be grossly inadequate. It would be appropriate
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to award Rs.1,50,000/- instead. Normally, In case of
amputation of lower limb, six months is considered as lay off
period. Thus, claimant would be entitled for Rs.40,000/-
towards loss of income during lay off period.
14. PW.2-Orthopedic surgeon issued Ex.P-10 - disability
certificate assessing permanent disability of 97%. Tribunal
considered 1/3 of same as whole body disability, which is not
appropriate. Even considering possibility of other avocation,
amputation would generally affect earning capacity. Therefore,
it would be appropriate to consider loss of earning capacity at
50%. As per decision of Hon'be Supreme Court in case of
Mohd. Sabeer @ Shabir Hussain v. Regional Manager,
U.P. State Road Transport Corporation1 there has to be
addition of future prospects, even in personal injury case.
Claimant herein is 30 years of age and self employed, inviting
addition of 40% towards future prospects. Thus, computation of
future loss of income would be as follows:
(Rs.8,000/- + 40%) x 50% x 12 x 16 = 10,75,200/-
(2022) 18 SCR 427
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15. In view of amputation of lower limb, following ratio
in Rajkumar v. Ajaykumar and Another2 compensation
towards loss of amenities is enhanced to Rs.1,50,000/-.
Tribunal has not awarded compensation towards artificial limb,
its periodic maintenance and replacement. But, awarded only
20,000/- towards future medical expenses, which would be
grossly inadequate. It is found appropriate to award
Rs.1,00,000/- towards same.
16. Tribunal awarded Rs.62,258/- towards medical
expenses. Since, there is complete reimbursement of bills
produced, same would not invite enhancement. Thus, total
compensation would be as follows:
Compensation
Heads
Amount
Medical expenses Rs.62,258/-
Loss of earning during period of Rs.40,000/-
treatment
Loss of future earning on account of Rs.10,75,200/-
permanent disability
Future medical expenses Rs.1,00,000/-
Pain and suffering Rs.1,50,000/-
Loss of amenities Rs.1,50,000/-
Total Rs.15,77,458/-
(2011) 2 SCC 343
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17. Point for consideration is answered partly in
affirmative. Consequently, following:
ORDER
i. Appeal is allowed in part, judgment and award
dated 01.04.2019 passed in MVC no.673/2017
by Court of Additional Senior Civil Judge and
MACT, Bidar is modified, claimant is held
entitled for total compensation of
Rs.15,77,458/- as against `4,73,258/- awarded
by tribunal with interest at 6% per annum from
date of claim petition till deposit.
ii. Insurer is directed to deposit enhanced
compensation within six weeks from date of
receipt of certified copy of this judgment.
Sd/-
(RAVI V HOSMANI)
JUDGE
NJ
