Karnataka High Court

Avinash @ Avinas vs James And Anr on 21 March, 2025

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                                                          NC: 2025:KHC-K:1797
                                                    MFA No. 200778 of 2022




                             IN THE HIGH COURT OF KARNATAKA,

                                     KALABURAGI BENCH

                          DATED THIS THE 21ST DAY OF MARCH, 2025

                                           BEFORE
                             THE HON'BLE MR. JUSTICE C M JOSHI

                        MISCL. FIRST APPEAL NO.200778 OF 2022 (MV-I)
                   BETWEEN:

                   AVINASH @ AVINAS S/O SHAMBULING,
                   AGE: 24 YEARS, OCC: LABOUR, NOW NIL,
                   R/O KOLAR-K,
                   TQ. AND DIST. BIDAR- 585 401.

                                                                  ...APPELLANT

                   (BY SRI. BABU H. METAGUDDA, ADVOCATE)

                   AND:

                   1.   JAMES S/O HANMANTH,
                        AGE: 46 YEARS, OCC: BUSINESS,
                        R/O H.NO.2-131, R/O KOLAR-K,
Digitally signed
by SHIVALEELA           TQ. AND DIST. BIDAR-585 401,
DATTATRAYA
UDAGI                   (OWNER OF THE MOTOR CYCLE NO.KA-38/5387).
Location: HIGH
COURT OF
KARNATAKA          2.   THE MANAGER,
                        IFFCO TOKIO GENERAL INSURANCE CO. LTD.,
                        BRANCH OFFICE, AT HAVAPPA COMPLEX,
                        NO. 200, 201 AND 202, UDGIR ROAD,
                        SHIVNAGAR SOUTH, BIDAR-585 401.

                                                             ...RESPONDENTS

                   (BY SRI. SUDARSHAN M., ADV. FOR R2;
                   V/O DTD. 25.08.2022, NOTICE TO R1 IS DISPENSED WITH)
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                                             NC: 2025:KHC-K:1797
                                       MFA No. 200778 of 2022




      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT
AND   AWARD      DATED    23.11.2021   PASSED     IN   MVC   NO.
491/2019 BY THE ADDL. MACT AND ADDL. SENIOR CIVIL
JUDGE      AND   CJM     AT   BIDAR    AND    ENHANCING      THE
COMPENSATION FROM RS.2,83,356/- WITH 9% INTEREST TO
RS.17,83,356/- WITH 12% INTEREST.

      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 appellant

and the learned counsel appearing for respondent No.2.

2. Being aggrieved by the judgment and award

dated 23.11.2021 passed in MVC No.491/2019 by the

learned Additional Senior Civil Judge and CJM and Member

MACT, Bidar, the petitioner is before this in appeal seeking

enhancement of the compensation.

NC: 2025:KHC-K:1797

3. The petitioner while returning from

Bhagyavathy Temple on 21/11/2018 was hit by a

motorcycle bearing No. KA.38.Q.5387, resulting in he

falling down and sustaining the fracture of shaft of left

femur and he was shifted to the hospital and had to

undergo surgery for the injuries suffered by him. He was

inpatient for four days and claiming that he was an

agricultural labourer, aged about 20 years and suffered

permanent disability, approached the Tribunal for

compensation from the owner and insurer of the

motorcycle. Regarding the accident, a case was registered

in Crime No.215/2018 by the concerned police and

ultimately, chargesheet was filed against the rider of the

motorcycle.

4. Respondent No.2- Insurance Company resisted

the petition contending that the compensation claimed by

the petitioner is highly exorbitant, imaginary and

untenable and it denied the age, occupation and income of

the petitioner. It contended that there were violations of

NC: 2025:KHC-K:1797

the terms and conditions of the policy by the owner of the

motorcycle and as such, to absolve its liability to pay the

compensation.

5. Respondent No.1 did not appear before the

Tribunal despite service of notice.

6. The Tribunal framed appropriate issues and the

petitioner was examined as PW1 and Exhibits P1 to 14

were marked. The Doctor who assessed the disability was

examined as PW2.

7. After hearing the arguments by both the sides,

the Tribunal awarded the compensation of Rs.2,83,356/-

under following heads:

Loss of future earnings Rs.1,38,240/-

Pain and suffering             Rs.    40,000/-
Medical,     attendant    and Rs.     18,000/-
incidental charges
Loss of laid up period for two Rs.    16,000/-
months
Medical Bills                  Rs.    56,116/-
Loss of basic amenities        Rs.    15,000/-
Total                          Rs.2,83,356/-

                                               NC: 2025:KHC-K:1797

8. Learned counsel appearing for the petitioner

would submit that the Tribunal assessed the functional

disability of the petitioner at 8% which is on the lower

side. PW2 had stated that the physical disability of the

petitioner was 32% to the left lower limb and he being an

agricultural labourer, has suffered the functional disability

to larger extent and there is no reason assigned by the

Tribunal to reduce the disability to 8%. Further he

contends that the quantum of the compensation awarded

under the remaining heads, including the income

assessed by the Tribunal needs to be reassessed by this

Court.

9. Per contra, learned counsel appearing for

respondent No.2 would submit that the Tribunal has

assessed the compensation properly and there is no need

for indulgence by this Court.

10. A perusal of the evidence of PW2 would show

that he assesses the disability to the left lower limb at

32%. The Tribunal assessed the functional disability at 8%

NC: 2025:KHC-K:1797

without considering the avocation and the age of the

petitioner. The translation of physical disability into the

functional disability is an exercise which should be done by

the Tribunal. The Medical Officer who assessed the

disability cannot give an opinion about the functional

disability, for the simple reason that, he would be unaware

of the avocation and the nature of the work done by the

petitioner. In the light of the contention that the petitioner

was an agricultural labourer, aged about 20 years, this

Court assess the functional disability at 11%.

11. The guidelines issued by the Karnataka State

Legal Services Authority in respect of the settlement of

disputes before the Lok Adalat prescribe the notional

income Rs.11,750/- per month for the year 2018. This

Court in umpteen number of cases has held that the said

guidelines issued by the KSLSA for settlement of disputes

in Lok adalat is in conformity with the minimum wages

fixed under the Minimum Wages Act. Therefore, the

notional income of the petitioner has to be considered at

NC: 2025:KHC-K:1797

Rs.11,750/- per month. Hence, the loss of future earnings

due to disability is calculated as Rs.11,750/- x 18 x12x

11%= Rs.2,79,180/-. Consequently, loss of income during

the laid up period is calculated as Rs.11,750 x 3

=Rs.35,250/-.

12. The compensation awarded by the Tribunal

under the heads of pain and suffering, attendance charges

and medical expenses do not require any enhancement.

The compensation under the head of loss of amenities

needs an enhancement and the same is enhanced to

Rs.25,000/-. Hence, the petitioner is entitled for a total

sum of Rs.4,53,546/- under the following heads:

Loss of future earnings Rs.2,79,180/-

Pain and suffering Rs. 40,000/-

Medical, attendant and incidental Rs. 18,000/- charges Loss of laid up period for two Rs. 35,250/-

months
Medical Bills                       Rs. 56,116/-
Loss of basic amenities             Rs. 25,000/-
Total                               Rs.4,53,546/-
                                    Rs.2,83,356/-
                                    Rs.1,70,190/-

                                                     NC: 2025:KHC-K:1797

13. In the result, the appeal filed by the petitioner

deserves to be allowed in part. Hence, the following:

ORDER

The appeal is allowed in part.

The appellant/petitioner is entitled for a sum of

Rs.1,70,190/- in addition to the compensation awarded by

the Tribunal along with interest at 6% p.a. from the date

of petition till its realization.