Nagaraj @ Nagappa Vs Basavanthappa and Anr.

NAGARAJ @ NAGAPPA S/O RACHAPPA MADIWALAR @ AGASAR, AGE: 21 YEARS, OCC: STUDENT & AGRICULTURE, R/O KOLIHAL, TQ. SURPUR, NOW RESIDING NEAR ASHRAM, KALIKA COLONY, VIJAYAPURA-586 101.

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…APPELLANT

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(BY SRI. SANGANABASAVA B. PATIL, ADVOCATE)

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AND:

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Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA

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BASAVANTHAPPA S/O BASAPPA PADASHETTI, AGE: 42 YEARS, OCC: BUSINESS, R/O KODEKAL, TQ. SHORAPUR, DIST. YADGIR-585 201, (OWNER OF BOLERO JEEP BEARING NO. KA-33/M-3571).

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LTD., S.S. FRONT ROAD, SANGAM BUILDING, P.B. NO. 60, VIJAYAPUR-586 101.

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…RESPONDENTS

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(BY SRI. SHIVANAND PATIL, ADV. FOR R2; V/O DTD. 31.01.2025, NOTICE TO R1 IS DISPENSED WITH)

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2 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGEMENT AND AWARD PASSED BY THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, VIJAYAPURA AT VIJAYAPURA IN M.V.C. NO. 1647/2016 DATED 12.03.2018, AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANT.

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

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C M JOSHI)

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Though the matter is slated for admission, by

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consent of both the parties, it is taken up for final disposal and heard the learned counsel for both the parties.

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Being aggrieved by the judgment and award in MVC No.1647/2016 by the Motor Accident Claims TribunalXIII & IV-Addl. Dist. Judge, Vijayapura (for short, ‘the Tribunal’), the petitioner is before this Court seeking enhancement of the compensation.

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3 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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The factual matrix of the case is that, on 19.09.2016 the petitioner (appellant herein) was riding motorcycle bearing Reg.No.KA-05/EP-6249 with two pillion riders and Bolero Jeep bearing Reg.No.KA-33/M-3571 came from opposite direction in a rash and negligent manner and collided against the motorcycle of the petitioner resulting in the riders falling down and sustained injuries. The petitioner claimed that he was aged about 19 years earning `7,500/- per month by doing agricultural work and he has suffered permanent disability and as such, he is entitled for the compensation from the owner and insurer of the Bolero Jeep.

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The respondent No.1-owner and respondent

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No.2-Insurance Company before the Tribunal appeared and resisted the claim petition contending that there was no such negligence on the part of the driver of the Bolero Jeep and that the negligence was on the part of the petitioner herein. Inter alia they also contended that the compensation claimed is highly exorbitant, imaginary and

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4 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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untenable in law and they denied the age, income and occupation of the petitioner.

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The Tribunal framed appropriate issues and clubbed the other petitions filed by the pillion riders and common enquiry was held.

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The petitioner herein was examined as PW.1 and the doctor who assessed the disability was examined as PW.4 and got marked Exs.P1 to P28. The official of the respondent No.2-Insurance Company was examined as RW.1 and got marked Ex.R1.

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After hearing both the sides, the Tribunal held that there is no such contributory negligence on the part of the petitioner and therefore the respondent Nos.1 and 2 are jointly and severally liable to pay the compensation amount. It determined the compensation amount at `2,13,000/- under different heads as below:

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5 -

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NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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Sl.No.	Heads		Compensation
1.	Medical Expenses		Rs.69,000/-
2.	Pain and suffering		Rs.40,000/-
3.	Loss of amenities		Rs.20,000/-
4.	Loss of future income		Rs.81,000/-
5.	Attendant charges		Rs.3,000/-
		Total	Rs.2,13,000/-

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Being aggrieved by the quantum of

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compensation, the petitioner is before this Court.

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Learned counsel appearing for the petitionerappellant would submit that the notional income considered by the Tribunal is on the lower side and the disability assessed by the Tribunal is not proper. He contends that the petitioner had suffered fracture of tibia and fibula of right leg and head injury, which involved fracture of the parietal bone. It is contented that the petitioner is unable to do his work and the functional disability needs to be reassessed by this Court.

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Per contra, learned counsel for the respondent No.2 submits that the quantum of compensation determined by the Tribunal is proper and correct and there

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6 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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is no need for enhancement of the compensation. The fact that there was no contributory negligence by the petitioner herein and that the policy issued by the respondent No.2 covering the Bolero Jeep was in force as on date of the accident are not in dispute. Therefore, it is only the compensation amount, which needs to be reassessed.

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The PW.4 in his testimony has stated that, there are various difficulties for the petitioner on account of fracture of tibia and fibula and the implants are in situ. He submits that the physical disability of the petitioner is about 20 to 25%. The petitioner being aged 19 years, he is agriculturist, he is definitely affected by the functional disability of the right lower limb. The functional disability assessed by the Tribunal at 5% is on the lower side. In the absence of any malunion or gait being observed by PW.4, the functional disability is assessed by this Court at 8%.

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The petitioner has not produced any material to show his income and therefore the Tribunal has adopted notional income. The guidelines issued by KSLSA for the

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7 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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purpose of settlement of disputes before the Lok-Adalath prescribe a notional income of 8,750/- for the year 2016. In umpteen number of judgments, including the judgment of the Division Bench in the case of Mariyamma vs. Suyambulingam in MFA No.7404/2014 DD: 06.12.2022, this Court has held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the minimum Wages Act and therefore they can be adopted as the notional income. Hence, the compensation under the head of loss of future income on account of disability is calculated as 8,750/- x 18 x 12 x 8% = ` 1,51,200/-.

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As a consequence the compensation under the head of loss of income during laid up is assessed at 8750/- x 3 months = **26,250/-** by holding that the petitioner was unable to resume his work at least for a period of 3 months.

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The Tribunal has awarded a sum of `40,000/under the head pain and suffering, which needs to be

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8 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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enhanced to ` 50,000/- by considering the head injury suffered by the petitioner.

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Similarly the compensation under the head of

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loss of amenities is enhanced to ` 40,000/-.

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The petitioner was impatient for 10 days and he was operated with ORIF and nailing. Therefore, a sum of ` 10,000/- is awarded under the head of attendant

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charges, nourishment and conveyance, etc.

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The compensation of ` 69,000/- awarded by

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the Tribunal under the head of medical expenses do not need any enhancement.

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Thus, the petitioner is entitled for a total compensation of `3,46,450/- under the following heads:

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9 - NC: 2025:KHC-K:1413 MFA No. 200929 of 2018

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Sl. No.	Heads	Compensation
1.	Medical Expenses	Rs.69,000/-
2.	Pain and suffering	Rs.50,000/-
3.	Loss of amenities	Rs.40,000/-
4.	Loss of future income	Rs.1,51,200/-
5.	Attendant charges	Rs.10,000/-
6.	Loss of income during laid up period	Rs.26,250/-
	Amount awarded by this Court	Rs.3,46,450/-
	Amount awarded by the Tribunal	Rs.2,13,000/-
	Enhanced amount	Rs.1,33,450/-

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In the result, the appeal deserves to be allowed

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in-part. Hence, the following:

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ORDER

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(i) The appeal is allowed in part.

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(ii) The appellant/petitioner is entitled for a

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sum of Rs.1,33,450/- in addition to the compensation awarded by the Tribunal, along with interest at 6% p.a. from the date of petition till its deposit.

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