Full Judgment Text
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MFA No. 7196 of 2016
C/W MFA.CROB No. 132 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 9 DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 7196 OF 2016 (MV-I)
C/W
MFA CROSS OBJECTION NO. 132 OF 2019
IN MFA No. 7196/2016
BETWEEN:
GODWIN PRABHAKAR
AGED ABOUT 61 YEARS
S/O. LEAMVEL JATHAN
R/O. MANOHAR VILLA
JATHAN COMPOUND
BANNANJE
UDUPI TALUK AND
DISRICT - 576 201.
…APPELLANT
(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. K. DEEPA
AGED ABOUT 31 YEARS
W/O. D. DAYANANDA
R/O. SHRI BENAKA
KALIKAMBA NAGARA
AMBALPADY POST
UDUPI TALUK AND
DISTRICT - 576 201.
2. THE NEW INDIA
ASSURANCE CO. LTD.
DIVISIONAL MANAGER
Digitally signed by
NAGARATHNA
TEKAL
SUBBARAO
Location: HIGH
COURT OF
KARNATAKA
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MFA No. 7196 of 2016
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DIVISIONAL OFFICE
SHRI RAM ARCADE
NEAR HEAD POST OFFICE
UDUPI DISTRICT - 576 201.
…RESPONDENTS
(BY SRI M.P.SRIKANTH, ADVOCATE FOR R2;
R1 - SERVICE DISPENSED WITH VIDE ORDER DATED
09.07.2019)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT PRAYING TO SET
ASIDE THE JUDGMENT AND AWARD DATED 25.07.2016
PASSED IN MVC.NO.19/2015 ON THE FILE OF THE ADDITIONAL
MACT AND PRINCIPAL SENIOR CIVIL JUDGE, UDUPI.
IN MFA.CROB NO. 132/2019
BETWEEN:
M/S. NEW INDIA
ASSURANCE CO. LTD.
BRANCH MANAGER
BRANCH OFFICE
SHRI RAM ARCADE
NEAR HEAD OFFICE
UDUPI
REPRESENTING THE
REGIONAL MANAGER
BENGALURU.
...Cross Objector
(BY SRI SRIKANTA M.P., ADVOCATE)
AND:
1. GODWIN PRABHAKAR
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S/O. LEAMVEL JATHAN
AGED ABOUT 61 YEARS
R/AT MANOHAR VILLA
JATHAN COMPOUND
BANNANJE
UDUPI TALUK - DISTRICT.
2. K. DEEPA
W/O. D. DAYANANDA
AGED ABOUT 31 YEARS
R/AT SHRIBENAKA
KALIKAMBA NAGARA
AMBALPADY POST
UDUPI TALUK AND DISTRICT.
...RESPONDENTS
(BY SRI PAVANA CHANDRA SHETTY H, ADVOCATE FOR R1;
R2 - NOTICE NOT ORDERED)
THIS MISCELLANEOUS FIRST APPEAL CROB. IS FILED
UNDER ORDER LXI RULE 22 OF CPC READ WITH SECTION
173(1) OF MOTOR VEHICLES ACTS PRAYING TO MODIFYING
THE JUDGMENT AND AWARD DATED 25.07.2016 PASSED IN
MVC NO.19/2015 ON THE FILE OF THE ADDITIONAL MACT
AND PRINCIPAL SENIOR CIVIL JUDGE, UDUPI
THESE MFA AND MFA.CROB, COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN
AS UNDER:
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CORAM: HON'BLE MR. JUSTICE C M JOSHI
ORAL JUDGMENT
Heard learned counsel for appellant and learned
counsel for cross objector-Insurance Company.
2. Being aggrieved by the judgment and award dated
25.07.2016 passed in MVC.No.19/2015 by the Additional
MACT and Principal Senior Civil Judge, Udupi (for short,
'the Tribunal), the appellant is before this Court in
MFA.No.7196/2016 seeking enhancement of the
compensation, whereas respondent No.2-Insurance
Company therein has approached this Court in
MFA.Crob.No.132/2019.
3. Parties to the appeal shall be referred to as per
their rank before the Tribunal.
4. The factual matrix of the case is that on
07.04.2014 at about 3.50 p.m., while the petitioner was
standing on the northern side of the road, a stage carriage
vehicle bearing registration No.KA-20-A-6048 came in a
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rash and negligent manner and hit against the petitioner.
As a result, he fell down and sustained injuries.
Thereafter, he was admitted to KMC Hospital, Manipal and
had suffered the following injuries.
1) Closed head injury.
2) Open fracture right great toe proximal phalanx.
nd rd
3) 2 and 3 metatarsal fracture.
Hence, the petitioner filed a claim petition seeking
compensation.
4.1. On service of notice, respondent No.1 did not
appear before the Tribunal and she was placed ex parte .
Respondent No.2-Insurance Company appeared and
resisted the petition and contended that the claim made
by the petitioner is highly exorbitant, imaginary and the
driver of the offending vehicle did not possess a valid and
effective driving licence at the time of the accident and as
such, its liability should be absolved.
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4.2. In order to substantiate his case, the petitioner
got examined himself as PW.1 and the Doctors as PW.2
and PW.3 and got marked documents from Exs.P1 to P18.
On the other hand, respondents did not adduce any
evidence, either oral or documentary.
4.3. After hearing the arguments, the Tribunal
awarded compensation of Rs.5,97,100/- with interest @
6% p.a. under the following heads:
Sl. Amount in
Heads
No. Rs.
1. Medical expenses 52,265-00
2. Pain and sufferings 50,000-00
3. Loss of future earning capacity 3,88,800-00
4. Loss of income 36,000-00
Loss of amenities and future 40,000-00
5.
unhappiness
6. Shortening of life span 20,000-00
7. Future medical expenses 10,000-00
TOTAL 5,97,065-00
Rounded off to 5,97,100-00
5. Being aggrieved by the same, the petitioner is
before this Court seeking enhancement of compensation
and respondent-Insurance Company has filed the cross
objection by contending that the quantum of the
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compensation under the head of future loss of income is
on the higher side.
6. Learned counsel for appellant-petitioner contended
that the petitioner is aged about 60 years, he was a
mechanic and running a garage. It is also contended that
the petitioner was earning more than Rs.25,000/- per
month from his avocation. However, the Tribunal has not
considered the said aspect despite Exs.P-14, P-15 and P16
(income tax return statements) have been produced.
6.1. Learned counsel for petitioner further contended
that PW.2-Doctor has assessed the neurological disability
due to the head injury at 50% as per Ex.P.11 and PW.3-
Doctor has assessed the orthopedical disability to the
extent of 12%. Therefore, the functional disability of the
petitioner should have been taken on the higher side and
the Tribunal erred in holding the same at 60%. Hence, he
seeks enhancement of compensation.
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7. Per contra , learned counsel for respondent-
Insurance Company contended that the Tribunal erred in
holding the disability at 60% and therefore, it is on the
higher side. In that regard, he seeks reassessment of the
compensation.
8. A careful perusal of the deposition of PW.1 would
show that he had filed the income tax returns showing the
income from the garage. However, a perusal of Exs.P.14,
P.15 and P.16 would show that there is no such income
from the garage. The entire income shown in these income
tax returns is only in respect of the rent from the property
owned by him. Therefore, the deposition to the extent that
the income depicts the income from his profession cannot
be accepted.
9. The Tribunal has taken the income of the
petitioner at Rs.6,000/- per month. The accident had
taken place in the year 2014. Except Ex.P13-Licence
renewal receipt, there is nothing else on record to show
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that the petitioner had income from his garage. Therefore,
it has to be held that in the absence of any material or
record, the notional income has to be considered. The
guidelines issued by the Karnataka State Legal Services
Authority for the purpose of settlement of disputes before
the Lok Adalat prescribes the notional income of
Rs.8,500/- p.m. for the year 2014. In umpteen number of
judgments it is held by this Court that the guidelines
issued by the Karnataka State Legal Services Authority are
in general conformity with the wages fixed under the
Minimum Wages Act and therefore, such guidelines are
acceptable. In that view of the matter, the notional income
of the petitioner is held to be Rs.8,500/- per month.
10. Coming to the question of disability, the
testimony of PW.2 and PW.3 show that the petitioner had
sustained neurological disability due to the head injury.
PW.2-Doctor in his testimony before the Tribunal states
that the petitioner was brought to the hospital in
unconscious state and the treatment was conservative. He
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also states that due to the head injury, he is unable to
move the hand and there is difficulty in walking. But there
is no difficulty to speak. In cross-examination, it is elicited
that recovery due to neurological injuries is remote. PW.2
being a Doctor who treated the petitioner, there is no
reason as to why his testimony should not be believed. He
has issued the disability certificate as per Ex.P.11 and it
shows the disability at 50%. It is trite law that when the
petitioner is suffering from neurological disability and there
cannot be reduction of one third or half. Ex.P.11 shows
that there is left hemiparesis and he opines that the
disability is 50%. Therefore, there cannot be any reduction
in calculating the whole body disability and the argument
by learned counsel for respondent-Insurance Company
deserves to be repelled.
11. The Tribunal in the impugned judgment has
calculated the total effect of the neurological disability and
orthopaedic disability. PW.3 in his testimony has stated
nd rd
that there was fracture and malunion of the 2 and 3
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metatarsals and proximal phalanx of great toe of left foot,
there is deformity of toes and foot with scarring, there is
20% loss of power in the left foot muscles, there is loss of
movement at MTP and IP joint of medial 4 digits and it has
resulted in a permanent disability of 12% of his left lower
limb. Therefore, the Tribunal together considered the
disability and held that it is 60%.
12. The petitioner is aged about 60 years and at such
age, he has suffered the neurological disability of 50% and
physical disability of 12%. However, the Tribunal considers
the functional disability at 60% which cannot be faulted
with. Obviously, the petitioner was a mechanic in a garage
run by him and therefore, the assessment made by the
Tribunal regarding the functional disability cannot be
interfered with.
13. For the aforesaid reasons, the loss of income due
to disability is calculated as (Rs.8,500/- x 12 x 9 x 60%)
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Rs.5,50,800/- by adopting multiplier of '9' for the age of
60 years.
14. The Tribunal has held that loss of income during
the laid-up period has to be calculated for six months and
this Court does not find any reason to interfere with the
same. Hence, the loss of income during laid up period is
calculated as (Rs.8,500/- x 6) Rs. 51,000/- .
15. The Tribunal has awarded a sum of ₹50,000/-
towards pain and sufferings and the same needs to be
enhanced to Rs.60,000/- .
16. The Tribunal has awarded a sum of Rs.20,000/-
under the head of shortening of the life span, a head
which is unknown to law. The Tribunal has not awarded
any compensation under the head of conveyance
expenses, nourishment, attendant charges etc. Therefore,
a sum of Rs.20,000/- awarded under the head of
shortening of the life span has to be considered as the
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compensation under the head of conveyance expenses,
nourishment, attendant charges etc.
17. The compensation awarded by the Tribunal
towards medical expenses, loss of amenities and future
unhappiness and future medical expenses do not require
any interference. Hence, the appellant is entitled for total
compensation of Rs.7,84,065/- under the following
heads:
Sl. Amount in
Heads
No. Rs.
1. Medical expenses 52,265-00
2. Pain and sufferings 60,000-00
3. Loss of future earning 5,50,800-00
capacity
4. Loss of income during laid up 51,000-00
period
5. Loss of amenities and future 40,000-00
unhappiness
6. Conveyance charges,
nourishment and attendant
charges etc.
20,000-00
7. Future medical expenses 10,000-00
TOTAL 7,84,065-00
Less awarded by the Tribunal 5,97,100-00
1,86,965-00
Enhancement
18. In view of the above, the appeal filed by the
appellant-petitioner deserves to be allowed-in-part and the
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cross objection filed by respondent No.2-insurance
Company deserves to be dismissed. Hence, the following:
ORDER
i. MFA.No.7196/2016 preferred by the appellant-
petitioner is allowed-in-part .
ii. MFA.Crob.No.132/2019 preferred by the cross
objector-Insurance Company is dismissed .
iii. The appellant-petitioner is entitled for a sum of
Rs.1,86,965/- in addition to what has been
awarded by the Tribunal along with interest @
6% per annum from the date of petition till the
date of deposit before the Tribunal.
iv. Respondent No.2-Insurance Company is
directed to deposit the compensation amount
within a period of six weeks from the date of
receipt of copy of this order.
v. The amount in deposit before this Court be
transmitted to the Tribunal.
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vi. Rest of the order passed by the Tribunal remain
unaltered.
Sd/-
(C M JOSHI)
JUDGE
CPN
List No.: 1 Sl No.: 5