- 1 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 7TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.202712 OF 2023 (MV-D) BETWEEN: THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, SANGAMESHWAR COLONY, KALABURAGI-585102, THROUGH ITS DIVL. MANAGER, PRESENTLY REPRESENTED BY ITS, THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, KALABURAGI-585102. …APPELLANT (BY SRI. SUDARSHAN M., ADVOCATE) AND: 1. ANANTHAMMA W/O HANUMANTHU, AGE: 45 YEARS, OCC: HOUSEHOLD. 2. MALLIKARJUN S/O HANUMANTHU, AGE: 21 YEARS, OCC: STUDENT. 3. ARAVIND S/O HANUMANTHU, AGE: 17 YEARS, OCC: STUDENT. 4. SHARNAMMA S/O BHIMASHAPPA, AGE: 67 YEARS, OCC: NIL. Digitally signed by SUMITRA SHERIGAR Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 5. BHIMASHAPPA S/O ASHANNA, AGE: 72 YEARS, OCC: NIL, THE RESPONDENT NO.3 MINOR U/G OF HIS NATURAL MOTHER/NEXT FRIEND I.E., RESPONDENT NO.1-ANANTHAMMA, ALL ARE R/O: H.NO.2/108, ANPUR, TQ. & DIST. YADGIR-585201. 6. MATHAM RACHAYYA SWAMY S/O MATHAM SIDDAYYA SWAMY, AGE: 57 YEARS, OCC: OWNER OF MARUTI SWIFT CAR BEARING NO.AP-21/BH-3789, R/O: H.NO.3-5-19, MAIN BAZAR, KULUMALA SHRISHAILAM, DIST. KARNUL (AP)-518101. …RESPONDENTS (NOTICE TO R1, R2, R4 TO R6 – SERVED BUT UN- REPRESENTED R3 IS MINOR R/P BY R1) THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLE ACT, PRAYING TO A) CALL FOR RECORDS IN MVC NO.208/2021 ON THE FILE OF MEMBER MACT-II AT YADGIRI, B) SET ASIDE THE JUDGMENT AND AWARD DATED 03.10.2022 PASSED IN MVC.NO.208/2021 BY THE MACT-II AT YADGIR, C) PASS SUCH OTHER ORDERS / RELIEFS AS THIS HON’BLE COURT DEEMS FIT AND PROPER IN THE FACTS CIRCUMSTANCES OF THE CASE. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C M JOSHI - 3 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellant. 02. The short point that arise for consideration is whether the order of the Tribunal to pay and recover the compensation amount from the owner, despite the fact that the driver of the vehicle was a minor is sustainable or not. 03. The appellant – insurance company had insured the Car bearing Reg.No.AP-21-BH-3789 owned by the respondent No.6 herein. The said Car met with an accident, while it was driven by the son of the respondent No.6 who was a minor at the time of the accident. Obviously, he did not have any driving license to drive the vehicle. In the accident that took place on 11.06.2021, one Hanumanthu who was proceeding on a motorcycle - 4 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 was collided by the Car and he died in the accident. The legal heirs of Hanamanthu filed the petition seeking compensation in MVC.No.208/2021, wherein the Tribunal passed the impugned order directing the insurance company to pay and recover the compensation amount from the owner of the Car. 04. The learned counsel appearing for the appellant would submit that the principle of pay and recover would only come into play when the driver had the eligibility to obtain the driving license, but not otherwise. It is submitted that the driver of the insured vehicle was a minor and therefore, he was ineligible to obtain a driving license. Therefore, the impugned order passed by the Tribunal is not sustainable in law and the Tribunal should have fastened the liability on the owner of the vehicle i.e., the respondent No.6 herein. - 5 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 05. In support of his contention he places reliance on a judgment of Coordinate Bench of this Court in the case of The New India Assurance Company Limited vs. Bibi Naphisha in MFA.No.7683/2014 connected MFA.Crob.No.54/2020 decided on 28.05.2024. In Para No.9 of the above said judgment, it was observed this Court as below:- “9. For applying the principles of pay and recovery as per sub-sections (1) & (2) of Section 149 of the Motor vehicles Act, 1988, if any of the conditions is violated, though Insurance Company can be exonerated from the liability, but the order of pay and recovery can be made. But in the present case, while considering Sub- Clause (ii) of Sub-Section (2) of Section 149 of the Motor Vehicles Act, in the case of a minor boy of 16 years old who was riding the vehicle and caused the accident, this proviso is not applicable so as to pay that terms and conditions of the Insurance Company are violated. Where a minor boy under the age of 16 years cannot be said to be a qualified person to apply for driving license, it cannot also be categorized that he is - 6 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 not duly licenced so as to come within the ambit of sub-clause (ii) of sub-section (2) Section 149 of the MV Act when a minor boy of 16 years old inherently is not a qualified person so as to apply for driving license. Therefore, the principle of pay and recovery is not applicable in case minor boy drives the vehicle and causes the accident. Hence, the prayer of pay and recovery is hereby rejected.” 06. The evidence available on record before the Tribunal shows that the driver of the Car after the accident ran-away from the spot and ultimately, the police had filed charge-sheet against the respondent No.6 as he had given the said vehicle to a person who is not authorized and ineligible to drive the Car. Therefore, the Tribunal has grossly erred in holding that the insurance company is liable to pay the compensation and to recover the same from the respondent No.6 – Matham Rachayya Swamy. 07. In the result, the appeal deserves to be allowed. Accordingly, the following; - 7 - NC: 2025:KHC-K:54 MFA No. 202712 of 2023 O R D E R I. The appeal is allowed. II. The impugned order passed by the Tribunal directing the appellant – insurance company herein to pay the compensation and then recover the same from the respondent No.1 – owner of the vehicle therein, is hereby set-aside. III. The respondent No.1 – owner of the vehicle before the Tribunal is directed to pay the compensation to the claimants. IV. The petition as against the appellant – insurance company stands dismissed. V. The amount in deposit before this Court is ordered to be refunded to the appellant – insurance company. Sd/- (C M JOSHI) JUDGE KJJ List No.: 1 Sl No.: 74 CT: AK