- 1 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 18TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI MISCL. FIRST APPEAL NO.201016 OF 2018 (MV-D) BETWEEN: 1. KASTURIBAI W/O BABU CHAVAN, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, 2. MOHAN S/O BABU CHAVAN, AGE: 26 YEARS, OCC: NIL, 3. SUREKHA D/O BABU CHAVAN, AGE: 25 YEARS, OCC: NIL, 4. SUNIL S/O BABU CHAVAN, AGE: 23 YEARS, OCC: NIL, ALL ARE R/O ARAKERI, L.T. NO.1, TQ. & DIST. VIJAYAPURA-586 101. …APPELLANTS (BY SRI. BABU H. METAGUDDA, ADVOCATE) AND: 1. PANDIT S/O SONGALU RATHOD, AGE: MAJOR, OCC: BUSINESS, R/O AT SHANIVAR PETH, KARAD, DIST. SATARA STATE, MAHARAHTRA-584 101. 2. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., GURUKUL ROAD, HANAMSHETTY BULDING, VIJAYAPUR-586 101. …RESPONDENTS Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2; V/O DTD. 27.05.2022, SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 10.08.2017 PASSED IN M.V.C.NO.1336/2008 BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL NO.-II AT VIJAYAPUR. AND AWARD THE COMPENSATION OF RS.13,50,000/- WITH 12% INTEREST. 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) Though, this appeal is slated for admission, the same is taken up for disposal with consent of learned counsel for both the parties. 2. Heard the learned counsel for the appellant and the respondent No.2. 3. This appeal has a chequered history. Initially the petitioners filed MVC No.1336/2008, which came to be - 3 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 dismissed by learned MACT and Fast Track Court, Vijayapura vide judgment dated 06.04.2011. The said dismissal was taken up by the petitioners to this Court in MFA No.31677/2011 and the appeal came to be allowed, remanding the matter back to the Tribunal vide judgment dated 24.11.2016. Liberty was given to the petitioners and respondents to adduce additional evidence in the matter. After giving such opportunity, the Tribunal by impugned judgment dated 10.08.2017 once again dismissed the petition. Being agreed by the same, the petitioners are before this Court in appeal. 4. The factual matrix of the case as may be found from the petition are that the petitioners filed a claim petition under section 163-A of Motor Vehicles Act, contending that on 18.06.2007 the diseased Babu Chavan was proceeding on Bajaj CT-100 motorcycle bearing No.MH-10/AC-6934 as a pillion rider and on college road at Koregaon, the rider of the motorcycle drove the same in negligent manner and lost control over it and topple down - 4 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 resulting in injuries to the deceased Babu Chavan. Immediately, he was shifted to the hospital at Koregaon and thereafter to Civil Hospital, Satara. He was again referred to Neuro Surgical Hospital at Satara and on 28.06.2007 he died at Civil Hospital at Solapur. Contending that the owner and insurer of the motorcycle are liable to pay the compensation to the petitioners, they filed a claim petition. It was contended that the deceased was working as a coolie under a mason earning Rs.3,300/- per month, and was aged about 35 years. The petitioners who are dependents of the deceased are entitled for compensation. 5. The petition was opposed by the respondent No.2-insurance company contending that the policy which was issued in favour of the respondent No.1 was ‘Act only’ policy and therefore, the pillion rider is not covered under the policy. However, there was no categorical denial of the accident, but the delay in filing the complaint was one of the grounds in the defense of the insurance company. - 5 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 Inter alia, it also contended that the rider of the motorcycle is a relative of the deceased and he was not possessing a valid driving licence and as such there is violations of the terms and conditions of the policy. 6. On the basis of the above contentions, the tribunal framed the following issues. 1. Whether the petitioners prove that, on 18.06.2007 at about 7.30 p.m., Sri. Babu Chavan was the pillion rider on the motorcycle MH-10/AC-6934, rider of it was R-1 Sri.Pandit, he drew the same near Hindu Bhavan, College Road, Koregaon, District Satara, Maharashtra State in high speed, rashly and negligently, as a result the motorcycle toppled down, pillion rider Babu Chavan sustained injuries and he succumbed to injuries while taking treatment at hospital on 28.06.2007? 2. Whether the petitioners are entitled to compensation? If so, what amount and from whom? 3. What order or award? - 6 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 7. The petitioner No.1 was examined as PW1 and Ex.P1 to Ex.P8 were marked. The official of the respondent No.2 was examined as RW1 and the copy of insurance policy was marked. 8. After hearing both the sides, Tribunal held that the petitioners have failed to prove the accident and that the policy issued by the respondent No.2 do not cover the pillion rider and as such dismissed the claim petition. Being aggrieved by the same, petitioners are before for this Court in appeal. 9. Learned counsel appearing for the petitioner would submit that the fact that there was an accident on 18.06.2007 was not disputed by the insurance company at any point of time. He contends that the respondent No.1 remained ex-parte and the Tribunal did not bestowed its attention on the earlier findings made by it in the judgment dated 06.04.2011. He would submit that the conclusions reached in that judgment regarding the accident still hold good. Secondly he submits that when - 7 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 the accident has been established by way of additional evidence produced by the petitioners before the Tribunal, which indicated that inquest and autopsy were conducted immediately after the death of the deceased Babu Chavan, it was not in the domain of the Tribunal to hold that there was no such accident. He submits that the manner of investigation conducted by Maharashtra police was not properly appreciated by the Tribunal. Thirdly, he submits that the Tribunal could not have dismissed the petition on the ground that the policy issued by the respondent No.2 was an Act policy. If the insurance company was not liable to pay the compensation, then the Tribunal should have determined the compensation and fastened the liability upon the respondent No.1. He also points out that the Tribunal failed to determine the compensation despite their being an issue on it. 10. Per contra, learned counsel appearing for the respondent No.2-insurance company would submit that the Tribunal has come to the conclusion that the delay in - 8 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 filing the FIR has not been properly explained and as such the inferences drawn by the Tribunal that no such accident had occurred is justifiable. It is submitted that even otherwise the policy was an Act policy and in view of Catena of decisions, the insurance company cannot be held liable to pay the compensation to the petitioners. 11. A careful perusal of the records would reveal that initially the Tribunal by its judgment dated 06.04.2011 had dismissed the petition under the premise that a pillion rider could not have invoked the provisions of section 163-A of the Motor Vehicles Act. It had relied on the judgment reported in 2009 (3) TAC 13 (SC). It is worth to note that this Court by the judgment in MFA No.31677/2011, set aside the entire judgment of the Tribunal and remanded the matter to provide an opportunity to both the sides to adduce evidence and then decide the matter in accordance with law. Therefore, any finding that was given in the judgment dated 06.04.2011 - 9 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 is non est and no reliance can be placed upon it by the petitioners. 12. The next aspect is whether the petitioners have proved the accident. The records would reveal that a formal FIR was registered by Koregaon police station on 26.03.2008. One Limbaji S/o Manohar Chavan had given a statement on 26.03.2008 narrating the entire incident and then a formal FIR was registered. A panchanama was also drawn on 27.03.2018 as per Ex.P2. The records also reveal that the police had sent a requisition under section 174 of Cr.P.C. to conduct the PM after holding an inquest on the body of the deceased. These documents which may be found at Ex.P3 would show that a case was registered in Crime No.0/2007 while sending the requisition under section 174 of Cr.PC. This inquest panchanama which is at Ex.P6 would show that the factum of the accident that took place on 18.06.2007 was recorded in it. It is categorically mentioned that the victim who was the proceeding on motorcycle as a pillion rider on 18.06.2007 - 10 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 met with an accident due to the negligence of the rider of the said motorcycle. The vehicle number is also mentioned as MH-10/AC-6934. Thus, it is evident that a formal FIR was not registered by the police soon after the accident but however, the criminal law was set in motion when the inquest and autopsy were conducted by the police. Therefore, the delay in filing the complaint alone cannot be a reason to reject the factum of the accident. Further the charge sheet which is produced at Ex.P7 would reveal that the rider of the motorcycle bearing No.MH- 10/AC-6934 was prosecuted for the offence under sections 279, 337, 304(A) of IPC. Under these circumstances, the delay in filing the FIR, as observed by the Tribunal cannot be a reason to doubt the factum of the accident. The procedure followed by the investigating officer of Maharashtra State was not properly appreciated by the Tribunal. Therefore, there cannot be any doubt that the accident occurred involving the motorcycle ridden by the respondent No.1, which is bearing No.MH-10/AC- 6934. Though a feeble attempt is made to find fault with the - 11 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 vehicle number mentioned in the charge sheet as well as the complaint, that would not be of any material relevance. 13. The third aspect to be considered whether the Tribunal erred in not fastening the liability upon the respondent No.1, if it had come to the conclusion that the insurance company is not liable on account of the Act policy. A perusal of the copy of the policy produced at Ex.R1 would you show that it is an Act policy. Evidently a pillion rider is not covered under the policy. This aspect is spoken to by RW1 also in his testimony. The cross examination of the RW1 do not show anything as to how the pillion rider is covered under the policy issued as per Ex.R1. There is a clear denial by the RW1 to the suggestion that the pillion rider is also covered under the policy. 14. The judgment of this Court in Catena of decisions has held that a pillion rider is not covered by an ‘Act policy’. It is worth to note that despite there being no - 12 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 additional premium being paid for the pillion rider or inmates of four wheeler, if it is a package policy, such pillion rider are inmates are covered under the insurance. In the case on hand, there is no doubt about the nature of the policy; the policy at Ex.R1 clearly indicate that it is an Act policy, for, it does not mention the IDV value of the vehicle. Under these circumstances, the insurance company is not liable to pay the compensation to the petitioner. Consequently, the liability falls upon the owner. 15. It is worth to note that the Tribunal failed to assess the compensation even though there was an issue on that aspect. In the light of the provisions contained under section 163-A read with the schedule to the Motor Vehicles Act, the income of the petitioner has to be held at Rs.40,000/- per annum and the compensation has to be calculated. It is not in dispute that the petitioner was aged 35 years at the time of the accident. Therefore, the - 13 - NC: 2025:KHC-K:1684 MFA No. 201016 of 2018 compensation under the head of loss of dependency is calculated as Rs.40,000 x 2/3rd x 16 = Rs.4,26,666/-. 16. In addition to it, the petitioners are entitled for a sum of Rs.15,000/- under the head of funeral expenses, transportation etc. 17. Thus, the petitioners are entitled for enhanced compensation of Rs.4,41,666/- with interest and therefore, the appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The appellants/petitioners are entitled for a sum of Rs.4,41,666/- along with interest at the rate 6% per annum from the date of petition till its realization from the respondent No.1. (iii) The petition as against the respondent No.2 stands dismissed. Sd/- (C M JOSHI) JUDGE SMP List No.: 1 Sl No.: 37 CT: AK