Mubarak Vs the Manager

Digitally signed 1. THE MANAGER by DEVIKA M HDFC ERGO GEN INSURANCE CO. LTD. Location: HIGH No.25/1, 2^ND FLOOR, BUILDING No.2 COURT OF SHANKARANARAYANA BUILDING KARNATAKA M G ROAD BENGALURU – 560001

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KESHAVA MURTHY M C S/O CHIKKAKEMPAIAH MINNAPURA, NELAMANGALA TALUK BENGALURU RURAL DISTRICT – 562123

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…RESPONDENTS

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(BY SRI PRADEEP B, ADVOCATE FOR R1; V/O DT.12.03.26, NOTICE TO R2 D/W)

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NC: 2026:KHC:14754 MFA No. 136 of 2024

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.10.2023 PASSED IN MVC NO.4572/2020 ON THE FILE OF THE MACT AND Court OF SMALL CAUSES, BENGALURU AND ETC.

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

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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This appeal is filed by the appellant-claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 04.10.2023 passed in MVC No.4572/2020 on the file of the MACT, Court of Small Causes, Bengaluru and seek for enhancement of compensation.

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Heard the arguments of the learned counsel appearing for the respective parties.

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The appellant/claimant met with an accident on 26.09.2020 and filed claim petition before the Tribunal claiming compensation. The Tribunal considering the entire evidence on record granted an amount of Rs.4,10,373/- with interest at the

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HC-KAR

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rate of 6% p.a. from the date of petition till its realization. Being aggrieved by the said order, this appeal is filed.

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The learned counsel for the appellant mainly contented that the Tribunal committed an error in deducting 15% of the compensation amount towards contributory negligence of the appellant in fact the appellant was a pedestrian as such he has not contributed negligence in occurrence of the accident and FIR and charge-sheet have been filed against the driver of the Canter lorry. Therefore, contributory negligence against the appellant is to be set aside. The appellant was doing coolie work and earning Rs.30,000/per month. Due to the accident, the appellant has sustained amputation of right 2^nd , 3^rd , 4^th and 5^th toe and suffered permanent disability and unable to do coolie work. But the Tribunal committed an error in considering the whole body disability at 12% instead of 100% as the appellant has sustained degloving injury of the right foot with fracture and 2^nd and 5^th metatarsal with 3^rd and 4^th right proximal phalanx fracture for which he underwent surgery and amputation of 2^nd to 5^th toe and it caused functional disability at 100%. The

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NC: 2026:KHC:14754 MFA No. 136 of 2024

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HC-KAR

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Tribunal has not considered the future prospectus while calculating the loss of future income. In all, the Tribunal has granted meager amount on the conventional heads. Thus, requested for enhancement of the compensation.

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Heard the arguments of both the sides. The case of the appellant that on 26.09.2020, he was going to graze the cow by walk on the left side mud portion of Tumkuru – Bengaluru road near T Bagur Bharath petrol bunk. At that time, the driver of the Canter lorry bearing Reg. No.KA01-D7972 came at high speed, in a rash and negligent manner and hit the appellant. As a result, the appellant sustained the grievous injuries.

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In paragraph 13, the Tribunal observed that the appellant has not produced the rough sketch for the reason known to him. If the spot mahazar is perused, the width of the road at the spot of accident is nearly 24 feet and the spot of accident is at a distance of nearly 4 feet from the left edge of Tumakuru-Bengaluru road and there is 20 feet width road left on the right side of the road. It means that the appellant while crossing the road, has met with an accident. Tribunal observed

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HC-KAR

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that petitioner being the pedestrian while taking the cows for grazing ought not to have crossed the road at the place where there was no zebra crossing that too not to take the risk of crossing the road when he was going with cows. It was also observed that driver of the heavy vehicle did not have to drive the lorry at the extreme left edge of the road when nearly 20 feet road remains on the right side that too it is a one way road. Thus, assessed the contributory negligence on the part of the appellant as 15% and on the part of the driver of the offending vehicle as 85%.

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The counsel for respondent No.1 would vehemently contend that the Tribunal has rightly considered the factual aspects of the case and hence, the judgment of the Tribunal does not require any interference by this Court.

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Admittedly, the appellant was crossing the road and the spot of the accident is at a distance of nearly 4 feet from the left edge and there is 20 feet width road left on the right side of the road. It is a straight road. It is not the case of respondent that petitioner suddenly crossed the road. Therefore, this Court finds that the driver of the lorry might

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NC: 2026:KHC:14754 MFA No. 136 of 2024

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HC-KAR

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have seen the appellant while crossing the road from a reasonable distance. Contributory negligence on the part of the appellant as assessed by the Tribunal at 15% is not on proper appreciation of facts and is set aside.

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Though it is stated that the appellant is working as

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a coolie and earning Rs.30,000/- per month, but he has not filed any income proof. It is not in dispute that the appellant met with an accident in the year 2020. The Tribunal has rightly taken notional income as Rs.14,500/- per month as per the guidelines issued by the Karnataka State Legal Services Authority. As the appellant was aged 35 years, the multiplier is ‘15’. Due to the accident, the appellant has sustained degloving injury of the right foot with fracture the 2^nd and 5^th metatarsal with 3^rd , 4^th right proximal phalanx fracture for which he underwent surgery and amputation of 2^nd to 5^th toe and caused permanent disability. The doctor has assessed the permanent disability at 30% for right lower limb, 6% for three toes and 12% for whole body. Admittedly, it is a case of amputation. Therefore, this Court finds it reasonable to take whole body disability at 18%. Thus, the ‘loss of future earning capacity

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NC: 2026:KHC:14754 MFA No. 136 of 2024

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HC-KAR

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due to disability’ comes to Rs.4,69,800/- (14,500 x 12 x 15

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x 18%).

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The Tribunal granted Rs.21,092/- towards ‘medical expenses’ considering the relevant documents and it is confirmed.

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As per the evidence of doctor, the petitioner hospitalized for a period of 24 days. Considering the nature of injuries and period of hospitalisation and other relevant factors, this Court finds it reasonable to grant an amount of Rs.75,000/- towards ‘pain and sufferings’ , Rs.30,000/- towards ‘loss of Amenities’ and Rs.30,000/- for ‘transportation, extra nourishment, attendant charges, food, etc’ . The appellant might not have attended to any work for at least a period of 4 months due to the injuries sustained, this Court finds it reasonable to award Rs.58,000/- (14,500x2) towards ‘loss of income during laid up period ’.

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Thus, in all, components awarded by this Court are as under:

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HC-KAR

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	Particulars	Compensation granted by Tribunal	Compensation enhanced by the High Court
1	Pain and suffering	60,000.00	75,000.00
2	Medical expenses	21,092.00	21,092.00
3	Conveyance, attendant,	25,000.00	30,000.00
	diet food and miscellaneous expenses
4	Loss of income during laid up period	43,500.00	58,000.00
5	Loss of future income due to disability	3,13,200.00	4,69,800.00
6	Loss of amenities	20,000.00	30,000.00
	Total	4,82,792.00	6,83,892.00

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This Court has already set aside the contributory negligence on the part of the appellant as discussed above, the appellant is entitled for a total compensation of Rs.6,83,892/with interest at the rate of 6% p.a. Insurance Company already deposited the awarded amount before the Tribunal.

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13. In the result, the following order is passed:

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ORDER

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I. The appeal is allowed in part.

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NC: 2026:KHC:14754 MFA No. 136 of 2024

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HC-KAR

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II. The judgment and award dated 04.10.2023 passed in MVC No.4572/2020 on the file of the MACT, Court of Small Causes, Bengaluru is modified.

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III. The appellant is entitled to a sum of Rs.6,83,892/- along with interest at 6% p.a. from the date of petition till the date of realisation instead of Rs.4,10,373/- granted by the Tribunal.

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IV. Respondent No.1 is directed to deposit enhanced compensation of Rs.2,73,519/- with interest at 6% p.a. within one month from the date of this order and on such deposit, the appellant-claimant is permitted to withdraw the entire amount along with interest accrued on

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the same.

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Sd/- (P SREE SUDHA) JUDGE

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SN

Mubarak v. the Manager

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Mubarak v. the Manager

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