IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 31^ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.200098 OF 2021 (MV-I)

BETWEEN:

GUDUSAB S/O FAKIRSAB CHIRLAKOPPA, AGE: 53 YEARS, OCC: HOTEL BUSINESS, R/O YAVAGALL, TQ. RON, DIST. GADAG-582 101.

…APPELLANT (BY SRI BAPUGOUDA SIDDAPPA, ADVOCATE)

AND:

1. BASAVARAJ S/O BHEEMAPPA MUDARADDI, AGE: 43 YEARS, OCC: HOUSEHOLD WORK, AT POST: JANATA PLOT, GAWARAWAD, POST: KADADI, TQ. & DIST. GADAG-582 102.

2. THE BRANCH MANAGER, THE NATIONAL INSURANCE COMPANY LTD., 1^ST FLOOR, HERALAGI BUILDING, BEHIND SIDDESHWAR TEMPLE, VIJAYAPURA-586 101.

…RESPONDENTS (BY SRI DEEPAK V. BARAD, ADV., FOR R2;

V/O DTD. 04.02.2021, NOTICE TO R1 IS DISPENSED WITH)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 01.02.2020 PASSED IN MVC NO.215/2017 ON THE FILE OF THE COURT OF THE II ADDL. SENIOR CIVIL JUDGE AND MEMBER MACT NO.VII, VIJAYAPURA AT VIJAYAPURA AND ALLOW THIS APPEAL TO GRANT THE COMPENSATION AMOUNT BY RS.10,66,400/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THIS HON’BLE COURT AND ORDER FOR COSTS OF THIS APPEAL.

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 the appellant and the learned counsel appearing for respondent No.2. 2. Though the matter is listed for admission, with the consent of learned counsel appearing for both the parties, it is taken up for final disposal.

3. This appeal is directed against the judgment and award dated 01.02.2020 in MVC No.215/2017 passed by learned II Additional Senior Civil Judge and MACT-VII, Vijayapura (hereinafter referred to as ‘the Tribunal’ for short).

4. The undisputed facts are that, on 28.09.2016 at about 8.30 p.m., the petitioner suffered a road traffic accident involving the motorcycle bearing No.KA-26/ W-8014 and he has suffered fracture of tibia and fibula, fracture of nasal bone and fracture of frontal bones and other minor injuries. He was admitted to General Hospital, Naragund and then for higher facilities at Hubli and Dharwad and thereafter to Belagavi. Hence, he filed a claim petition before the Tribunal.

5. The Insurance Company has resisted the petition on various grounds, but it was unable to substantiate the same before the Tribunal.

6. After hearing both the sides, the Tribunal held that the accident being on account of negligent driving by the rider of the motorcycle, the Insurance Company is liable to pay the compensation to the claimant and ultimately awarded compensation under different heads as below:

7. Learned counsel appearing for the appellant-

petitioner would submit that the Tribunal failed to assess the functional disability of the petitioner in a proper perspective. Though, the PW2-Doctor, who had assessed the disability had spoken to the effect that the fracture of the tibia and fibula had suffered a non-union despite an internal fixator being applied and there was a disability to the extent of 40 to 45%. The assessment done by PW2 was not properly considered by the Tribunal and therefore, there is a need for indulgence by this Court in enhancing the disability and thereby the compensation. Inter alia, he points out that the compensation awarded under other heads is also on the lower side.

8. Per contra, learned counsel appearing for respondent No.2 would submit that the assessment of the disability by the Tribunal is proper and correct and petitioner being a businessman involved in hotel business, cannot have