Karnataka High Court

Shashikumar @ Shashiknath vs Shambuling And Anr on 10 March, 2025

Author: K Natarajan

Bench: K Natarajan

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                                                     NC: 2025:KHC-K:1551-DB
                                                    MFA No. 200267 of 2018




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                          DATED THIS THE 10TH DAY OF MARCH, 2025

                                          PRESENT
                           THE HON'BLE MR. JUSTICE K NATARAJAN
                                             AND
                        THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL


                        MISCL. FIRST APPEAL NO.200267 OF 2018 (MV-I)


                   BETWEEN:

                   SHASHIKUMAR @ SHASHIKANTH
                   S/O MADEPPA DHUMMANSURE,
                   AGE: 31 YEARS, OCC: AGRICULTURE & MILK
                   VENDING,
                   R/O NANDGAON, TQ: HUMNABAD,
                   DIST: BIDAR-585101.

                                                               ...APPELLANT
                   (BY SRI BABU H. METAGUDDA, ADVOCATE)
Digitally signed
by NIJAMUDDIN      AND:
JAMKHANDI
Location: HIGH
COURT OF           1.   SHAMBULING S/O MADEPPA,
KARNATAKA               AGE: 36 YEARS, OCC: LEGAL PRACTITIONER AND
                        AGRICULTURE, R/O NANDGAON VILLAGE,
                        TQ: HUMNABAD,
                        DIST: BIDAR-584101.

                   2.   THE DIVISIONAL MANAGER,
                        UNITED INDIA INSURANCE CO. LTD.
                        JAWALI COMPLEX, KALABURAGI-585104.
                                                             ...RESPONDENTS

                   (V/O DATED 01.07.2019 NOTICE TO R1 IS DISPENSED WITH
                    BY SRI SHIVANAND PATIL, ADVOCATE FOR R2)
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                                   NC: 2025:KHC-K:1551-DB
                                  MFA No. 200267 of 2018




     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR THE
RECORDS IN M.V.C.NO.631/15 ON THE FILE OF THE MOTOR
VEHICLE ACCIDENT CLAIMS TRIBUNAL AT HUMNABAD, ALLOW
THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD
DATED-31.08.2017 PASSED IN M.V.C.NO.631/2015 BY MOTOR
VEHICLE ACCIDENT CLAIMS TRIBUNAL AT HUMNABAD AND
ENHANCING THE COMPENSATION FROM RS.5,97,760/- WITH
6% INTEREST TO RS.30,00,000/- WITH 12% INTEREST

    THIS APPEAL, COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE K NATARAJAN
          AND
          HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL


                     ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE K NATARAJAN)

This appeal is filed by the claimant under Section

173(1) of Motor Vehicles Act, 1988 [for short, 'the M.V.

Act'] seeking enhancement of compensation as against the

judgment and award dated 31.08.2017 passed by the

Motor Accident Claims Tribunal, Humnabad [for short, 'the

Tribunal'] in MVC No.631/2015.

2. Heard the arguments of learned counsel for the

appellant and the learned counsel for respondent No.2 -

Insurance Company.

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3. Appellant was the claimant before the Tribunal

and respondent No.2 was respondent No.2 before the

Tribunal.

4. Parties are referred to as per their rank before

the Tribunal for the sake of convenience.

5. The case of the claimant is that the he filed a

claim petition under Section 166 of M.V. Act claiming

compensation of Rs.30,00,000/- for injuries sustained by

him in a road traffic accident that occurred on 20.06.2015.

It is alleged that on the said date at about 22.15 hours

when the claimant was proceeding on a Hero Honda

Passion motor cycle as a pillion rider of the said vehicle

bearing Reg.No.KA-39/J-2286 from Humnabad to

Nandgaon village, when they reached near Milk Diary on

N.H.-9 village Hudgi, at that time, the rider of the said

motor cycle started riving in a rash and negligent manner

and dashed to the opposite motor cycle bearing

Reg.No.KA-29/H-7818, due to which the claimant

sustained grievous injuries. He was taken to the hospital

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and for further treatment to a hospital at Solapur. He has

suffered multiple fractures and injuries and he was

admitted in the hospital for 22 days. He has spent more

than Rs.3,00,000/- towards medical expenses. He was

doing milk vending business and due to the accident he

lost the earning capacity. There were multiple fractures

and grievous injury over the spleen organ and it was

removed through surgery. Hence, he prayed for granting

compensation on various heads.

6. The respondent No.1 - owner of the vehicle

appeared and filed his statement of objections by denying

the rash and negligent driving, the accident, nature of

injuries, age, occupation, income as false. However it is

contended that liability, if any, should be fastened on the

Insurance Company. The respondent no.2 - Insurance

Company appeared through their counsel and filed

statement of objections by denying the nature of accident,

age, occupation income, injury, disability of the injured as

false and also contended that the compensation claimed

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by the claimant is exorbitant and excessive. Hence,

prayed to dismiss the petition.

7. Based upon the pleadings, the Tribunal framed

the following issues:

"(i) Whether the petitioner proves that he has sustained grievous injuries in the motor vehicle accident occurred on 20.06.2015 at about 22-15 hours on N.H.9 near Milk diary Hudgi, Tq.

Humnabad, on account of rash and negligent driving of the driver of vehicle bearing Reg.No.KA-39/J-2286 and vehicle bearing Reg.No.KA-29/H-7818 as alleged?

(ii) Whether the petitioner further proves that he is entitled for compensation? If so what is the quantum and from whom?

(iii) What order or award?"

8. In order to prove the case of the claimant, the

claimant examined himself as PW-1 and the doctor as PW-

2 to prove the disability and got marked 184 documents.

On behalf of the respondent - Insurance Company, officer

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of the Insurance Company was examined as RW-1 but no

documents were marked.

9. After hearing the arguments, the Tribunal

answered issue No.1 in the affirmative, issue No.2 partly

in the affirmative and allowed the petition in part by

awarding compensation of Rs.5,97,760/- on various heads

by fastening the liability on respondent No.2 - Insurance

Company as under:

Heads of compensation Compensation amount Towards loss of future income Rs.1,95,840/-

  Towards pain and agony                              Rs.10,000/-
  Towards Medical expenditure                       Rs.3,64,920/-
  Towards attendant charges, food                     Rs.11,000/-
  and conveyance
  Towards amenities and nutrition                    Rs.10,000/-
  Towards loss of income during                       Rs.6,000/-
  the period
                              Total               Rs.5,97,760/-

The claimant, being unsatisfied with the quantum of

compensation, has filed this appeal before this Court.

10. Learned counsel for the appellant has

strenuously contended that the Tribunal committed an

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error in taking the notional income of the claimant at

Rs.6,000/- per month even though it is considered as

Rs.8,000/- per month in the Lok Adalath as per the chart

prepared by the Legal Services Authority. The amount

awarded by the Tribunal under the head pain and suffering

is a meager amount of Rs.10,000/-. There is no award in

respect of disfigurement of face. Even the compensation

awarded for the loss of income during laid up period is

very less. He also submits that the amount awarded

towards loss of amenities is also very less. He further

submits that the claimant was admitted in the hospital at

Solapur for 22 days and the amount awarded towards

attendant charges, food, nourishment and conveyance

charges at Rs.11,000/- is very meager. Such being the

case, the compensation requires to be enhanced

accordingly. The learned counsel also contended that the

evidence of the doctor PW-2 clearly goes to show that the

claimant has suffered 49% apart from various multiple

factures like fracture of zygomatic arch, fracture of

mandible and lateral wall of L-orbit, multiple fracture of

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face bones and rupture of spleen. Such being the case,

taking 16% disability to the whole body is not correct.

Hence, he prayed for enhancing the same.

11. Per contra, learned counsel for the respondent

No.2 - Insurance Company supported the award passed by

the Tribunal and contended that the Tribunal, by

considering the evidence on record, awarded just and fair

compensation and there is no need to interfere with the

same. Hence, prayed to dismiss the appeal.

12. Having heard the arguments of learned counsel

for the parties and perused the records, the points that

arise for our consideration are:

Whether the award of compensation passed by the Tribunal is meager and insufficient to the injuries sustained by the claimant which is required for enhancement? If so, to what extent?

13. We have perused the records, especially issue

No.1. The rash and negligent driving and the accident in

question are not disputed as the claimant has produced

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documentary evidence i.e., Ex.P1 - FIR, Ex.P2 -

complaint, Exs.P3 to 7 are the statement, spot

panchanama, wound certificate, IMV report, and charge

sheet which is filed against the rider of the motor cycle

and the Insurance Company. Such being the case, the

factum of accident has been proved by the claimant.

Ex.P-5 wound certificate reveals that the claimant suffered

multiple fracture injuries. Therefore, we are required to

consider only as to whether the quantum of compensation

awarded by the Tribunal is just and proper or not.

14. The claimant has given evidence regarding

multiple injuries sustained by him. Ex.P-5 is the wound

certificate which reveals the injuries sustained by him in

respect of face, zygomatic region, mandible fracture, head

injury i.e., cerebral injuries apart from the spleen injury

due to which the spleen is said to be operated and

removed. Ex.P-5 reveals there were 7 multiple injuries

sustained by him out of which injury Nos.1 to 5 are

grievous injuries and injury Nos.6 and 7 are simple

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injuries. It reveals that he has admitted in hospital for 22

days. On the head of pain and suffering awarded by the

Tribunal at Rs.10,000/- is meager and insufficient to the

multiple injuries sustained by the claimant. Therefore, we

propose to award Rs.50,000/- towards pain and suffering

as against Rs.10,000/- awarded by the Tribunal.

15. The medical records are produced as per Exs.P-

9 to P-167, almost 158 documents are produced, which

reveals that he has taken various treatments. He has

spent more than Rs.3,00,000/-. Therefore, the Tribunal

has awarded Rs.3,64,920/- which is based upon the

documentary evidence. Hence, we propose to affirm the

same and claimant is entitled for Rs.3,64,920/- as it is.

16. As regards the food, nourishment and attendant

charges, the Tribunal has awarded Rs.11,000/-. The

claimant was admitted in the hospital for 22 days that too

at Solapur and definitely one attendant was required to

take care of him and was required extra food and

nourishment. Therefore, we propose to award Rs.25,000/-

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to the claimant towards food, nourishment, attendant and

conveyance charges.

17. As regards loss of amenities, the claimant

suffered head injury, zygomatic fracture, mandible

fracture and as per the evidence of doctor chewing is also

difficult. The Tribunal has awarded only Rs.10,000/- as

loss of amenities therefore, looking to the facts and

circumstances, since the age of the claimant is 30 years

and he has to suffer throughout his life, hence, we propose

to award Rs.50,000/- towards loss of amenities.

18. As regards compensation towards loss of

income during laid up period, the Tribunal considered the

income of the claimant at Rs.6,000/- per month. Even in

the Lok Adalath, as per the guidelines of the Legal

Services Authority, income is taken at Rs.8,000/- per

month for the accident of the year 2015. Hence, we

propose to take the income at Rs.8,000/- per month as

notional income. The claimant was admitted in the

hospital for 22 days. Even after discharge, he might have

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needed rest and taken bed rest atleast for four months.

Hence, if Rs.8,000/- is taken as the income of the

claimant, the loss of income during laid up period comes to

Rs.32,000/- (Rs.8,000/- x 4 months).

19. As regards to the evidence of doctor, due to

facial injuries and fractures, he is suffering from

disfigurement. Age of the claimant is 30 years, he has to

suffer for another 30 to 40 years with the disfigurement of

face. Therefore, as a special case, we propose to award

Rs.25,000/- towards disfigurement of face.

20. As regards the disability, the Tribunal has

considered disability at 16% to the whole body by taking

into consideration 1/3rd of 49% given by the doctor. We

have examined Ex.P-167 the disability certificate issued by

the doctor and evidence of PW-2. As per Ex.P-167 the

disability certificate, the claimant complained of deformed

look of face, salivation from L-side of mouth in sleep, on

and off headache and giddiness, weakness in L-side of

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upper and lower limbs, watering in left eye and dimness of

vision, unable to bend and work due to pain in abdomen,

unable to lift weight due to pain in abdomen, indigestion,

loss motions, acidity and loss of appetite. On examination

and investigation the doctor has opined that patient had

grievous head injury, brain injury, face injury and spleenic

laceration due to blunt abdominal trauma as found on

clinical and radiological examination done following the

accident. Presently he has post head injury facial paresis

and hemoperesis on L-side accounts for disability of 20%,

post spleenectomy causing digestive disturbances and

weakness of abdominal wall is impairing the physical

working accounts for disability of 30% and L-side orbital

wall fracture and zygomatic arch fracture injury is causing

deformed L-eye and pain and watering in eye accounts for

disability of 20% to facial injury. The doctor has opined

that cumulative disability sustained by the claimant in

accident is 49% to entire body. Normally the Court use to

consider 1/3rd of the injury or disability to whole body but

the doctor himself has opined 49% to the whole body.

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However, by considering the facts and circumstances, the

injuries to the head and the spleen, the doctor has opined

49%. The tribunal has considered only 16% which is very

meager. Multiple factures and injuries and removal of

spleen organ and apart from the mandible fracture

definitely causes disability throughout his life. He has to

suffer indigestion problem due to non-functioning of the

spleen. Therefore, we propose to consider atleast disability

at the rate 30% towards the whole body instead of 49%

suggested by the doctor. Even we have perused the

cross-examination of PW-2 and nothing has been elicited

to disbelieve the evidence of doctor. Such being the case,

we are of the considered view that 30% disability has to

be taken to the whole body. If Rs.8,000/- is considered as

income and applying multiplier of '17' and disability at

30%, the loss of future earning comes to Rs.4,89,600/-

[Rs.8,000/- x 12 x 17 x 30%]. Accordingly, we re-ass the

compensation to the claimant as under:

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Sl.         Heads of compensation             Compensation
No.                                              amount
 1.     Loss of income due to disability        Rs.4,89,600/-
 2.     Pain and agony                            Rs.50,000/-
 3.     Loss of amenities                         Rs.50,000/-
 4.     Medical Expenses                        Rs.3,64,920/-
 5.     Food, nourishment, attendant and          Rs.25,000/-
        conveyance charges
6.      Disfigurement of face                  Rs.25,000/-
7.      Loss of income during laid up          Rs.32,000/-
        period
                                     Total Rs.10,36,520/-
                   Award of the Tribunal    Rs.5,97,760/-
                      Enhanced Amount       Rs.4,38,760/-