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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NC: 2025:KHC-K:3090
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 -3- NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR 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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NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR 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 -5- NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR 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?-6-
NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR
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 -7- NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR 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/--8-
NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR
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: -9-
NC: 2025:KHC-K:3090 MFA No. 204330 of 2023 HC-KAR 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 List No.: 1 Sl No.: 41