IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 2^ND DAY OF DECEMBER, 2021

BEFORE

THE HON’BLE MR.JUSTICE RAVI V.HOSMANI

M.F.A.No21462/2013(MV)

BETWEEN:

MAHESH S/O SANJAY KOTAGI,

AGE: 17 YEARS, OCC: MILK VENDING AND STUDENT,

MINOR R/BY M/G NATURAL FATHER,

SHRI. SANJAY S/O BASAVANNI KOTAGI,

AGE: 40 YEARS, OCC: MASON,

R/O CHAVADI GALLI, PANT BALEKUNDRI,

TQ: DIST: BELGAUM.

... APPELLANT

(BY SRI.HARISH S. MAIGUR, ADVOCATE)

AND

1.

SHRI.P.SHIVA S/O PALANIVALU,

AGE: MAJOR, OCC: BUSINESS,

R/O NIRMAL NIWAS, 1^ST CROSS,

NEHRU NAGAR, BELGAUM.

2.

THE DIVISIONAL MANAGER,

NEW INDIA ASSURANCE CO. LTD.,

D.O., CLUB ROAD, BELGAUM.

... RESPONDENTS

(BY SRI.VITTHAL S.TELI, ADVOCATE FOR R1)

(BY SRI. S.V.YAJI, ADVOCATE FOR R2)

THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR

VEHICLES ACT, 1988, PRAYING TO MODIFY THE JUDGMENT

AND AWARD PASSED IN M.V.C. No.13/2011, ON THE FILE OF

PRL. SR. CIVIL JUDGE AND ADDL. M.A.C.T., BELGAUM, AT:

BELGAUM, DATED 31.07.2012 BY ALLOWING THIS APPEAL.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY,

THE COURT, DELIVERED THE FOLLOWING:

2

JUDGMENT

Challenging

the

judgment

and

award

dated

31.07.2012 passed by Prl. Senior Civil Judge and Addl.

M.A.C.T., Belagaum (for short, ‘the Tribunal’) in MVC

No.13/2011, this appeal is filed by claimant seeking for

enhancement of compensation.

2.

Though this appeal is listed for admission, with

the consent of learned counsel for parties, it is taken up

for final disposal.

3.

Sri.Harish

S.Maigur,

learned

counsel

for

claimant/appellant

submits

that

in

an

accident

that

occurred on 09.09.2010, minor Mahesh Kotagi sustained

injuries when the bus bearing Registration no.KA-22/B-

1409 dashed against minor, while he was riding bicycle. In

accident,

minor

sustained

injuries

and

admitted

to

hospital.

Despite

treatment,

he

sustained

physical

disability.

3

4.

As

per

Ex.P4-wound

certificate

and

P.12-

disability certificate, claimant sustained disability to right

upper limb due to decaying injuries and also fracture of

upper 1/3^rd of right alna. It was submitted that claimant

had also examined doctor S.R.Angadi, Orthopedic who

deposed about examining claimant and issuing disability

certificate.

5.

Relying upon decision of Hon’ble Supreme Court

in case of MASTER MALLIKARJUN Vs. DIVISIONAL

MANAGER,

THE

NATIONAL

INSURANCE

COMPANY

LIMITED AND ANOTHER reported in AIR 2014 Supreme

Court 736, learned counsel submitted that award of total

compensation of Rs.1,03,352-00 was not commensurate

and sought for enhancement.

6.

On the other hand, Sri.Vittal S.Teli, learned

counsel for respondent no.1/owner on whom liability was

fastened

by

Tribunal

supported

award

and

opposed

enhancement. It was submitted that disability sustained

by claimant was not severe and over all consideration,

4

compensation

awarded

is

just

and

proper

and

no

enhancement was called for.

7.

Learned

counsel

Sri.S.V.Yaji

for

insurer

submitted that Tribunal has absolved the liability of

insurer that there was no insurance as on date of accident

and therefore, insurer was rightly discharged.

8.

From above submissions, occurrence of accident

due to rash and negligent driving by bus driver and

claimant sustaining injuries therein are not in dispute.

Tribunal has assessed compensation and passed award

against respondent no.1/owner. Owner has not filed

appeal challenging award. Therefore, liability of owner to

pay compensation is also not in dispute. Claimant was a

minor who sustained physical disability which is also not

in

dispute.

Dispute

is

only

regarding

quantum

of

compensation. Recognizing improbabilities of determining

compensation in respect of non-earning minor children

due to sustaining permanent physical disability, Hon’ble

Supreme Court has involved structured formula for award

5

of compensation. PW.2 has assessed limb disability